Johnson v. Hoffman
Decision Date | 18 January 1977 |
Docket Number | No. 76-555C(4).,76-555C(4). |
Citation | 424 F. Supp. 490 |
Parties | Richard Jerome JOHNSON, on behalf of himself and on all others similarly situated, Plaintiff, v. Martin HOFFMAN, Individually and in his official capacity as Secretary of the Army, et al., Defendants. |
Court | U.S. District Court — Eastern District of Missouri |
Christopher T. Hexter, Schuchat, Cook & Werner, St. Louis, Mo., for plaintiff.
Wesley D. Wedemeyer, Asst. U. S. Atty., U. S. Dept. of Justice, St. Louis, Mo., for defendants.
This matter is before the Court upon defendants' motion to dismiss, or alternatively for summary judgment, following oral arguments heard on November 12, 1976. Plaintiff filed suit herein, pursuant to 28 U.S.C. §§ 1331, 1343, 1361 and 42 U.S.C. § 2000e et seq., asserting that paragraph 2-34(a) of Army Regulation 40-501 violates his rights under the law. The challenged provision provides:
Plaintiff contends that this regulation has a disparate impact upon black persons as it allows the Army to base its decision for rejection upon arrests.
Defendant Martin Hoffman is the Secretary of the Army. Defendant Lt. Gen. R. R. Taylor is the Surgeon General of the United States Army. Defendant Maj. Lee Wilson is the commanding officer of the Armed Forces Examining and Entrance Station in St. Louis, Missouri.
Defendants first argue that the issues raised herein are not justiciable. In support of this position, the Court has been cited to Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). In this case, a doctor petitioned for a writ of habeas corpus, asserting that he had been assigned to menial, and not medical, duties in the military. The Court held that it could not review the discretionary decision of how to assign men, and further stated that:
Again, in Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), a suit to restrain the governor of the state of Ohio from prematurely calling out the National Guard, the Court stated:
The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislature and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. Id. at 10, 93 S.Ct. at 2446. emphasis in original.
Courts have declined to review discretionary military decisions in a wide variety of contexts. See Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)(federal courts should not intervene in pending court martial proceeding for sale, transfer and possession of marijuana), reaffirmed in McLucas v. DeChamplain, 421 U.S. 21, 95 S.Ct. 1365, 43 L.Ed.2d 699 (1975); United States v. Tyson, 503 F.2d 1368 (5th Cir. 1974) ( ); Anderson v. Laird, 437 F.2d 912 (7th Cir. 1971), cert. denied, 404 U.S. 865, 92 S.Ct. 68, 30 L.Ed.2d 109 (1971) ( ); O'Mara v. Zebrowski, 447 F.2d 1085 (3d Cir. 1971) ( ); Arnheiter v. Chafee, 435 F.2d 691 (9th Cir. 1970) ( ).
Nonetheless, courts have reviewed military decisions to determine "what are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case . . .". Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196, 77 L.Ed. 375 (1932). See also, United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955) ( ); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) ( ); McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960) ( ); O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) ( ).
Plaintiff herein is not challenging the decision that he was unfit for service in the armed forces. Instead, he is challenging the validity of the regulation on which that determination was made. Were plaintiff asserting that the military had exercised its judgment erroneously, the Court would agree that the claim would not be justiciable. Plaintiff, however, is claiming that the regulation on which the decision was based violates his rights under the law. Under these circumstances, the controversy is justiciable. Cf., Vance v. Arizona Army National Guard, et al., No. Civ. 74-329 Phx. (D.C.Ariz.1975) (. that claim of sex discrimination against the National Guard was justiciable)
See also, St. Louis University v. Blue Cross Hospital Service, Inc. of St. Louis, 393 F.Supp. 367 (E.D.Mo.1975), modified in part, 537 F.2d 283 (8th Cir. 1976). While the Court is of the opinion that sovereign immunity does not necessarily bar suit pursuant to §§ 1331 and 1343, certain types of relief might be precluded. Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974); Revis v. Laird, 391 F.Supp. 1133 (E.D.Cal. 1975).
Title 5 U.S.C. § 102 defines the military departments to include the Army. Throughout the legislative history to the 1972 amendments to 42 U.S.C. § 2000e et seq., various references are made to the fact that the federal government employs 2.6 million persons. See United States Senate Committee on Labor and Public Welfare, Legislative History of the Equal Employment Opportunity Act of 1972, 92d Congress, 2d Sess. (1972), pp. 289, 421, 1727 and 1760. As of June 20, 1971, however, there were approximately 2.6 million members of the armed forces and as of June 30, 1972, there were approximately 2.2 million members. The World Almanac and Book of Facts 1976; Information Please Almanac 1976. Under these circumstances, it seems clear that Congress could not have had uniformed members of the military in mind when considering the 1972 amendments. See also Vance v. Arizona Army National Guard, et al., supra, ( that a state or federal military force is...
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