West v. Brown

Citation558 F.2d 757
Decision Date01 September 1977
Docket NumberNo. 76-1123,76-1123
PartiesShirley Mae WEST, on her own behalf and on behalf of all others similarly situated, et al., Plaintiffs-Appellants, v. Harold BROWN, Individually and in his official capacity as Secretary of the Department of Defense, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Steven J. Wisotsky, Asst. Professor of Law, Ft. Lauderdale, Fla., Frank H. Holtzman, Coconut Grove, Fla., for plaintiffs-appellants.

L. Neal Ellis, Jr., Litigation Div., OTJAG, Dept. of Army, Washington, D. C., Robert W. Rust, U. S. Atty., John Steven Berk, Asst. U. S. Atty., Miami, Fla., for defendants-appellees; of counsel, Edward C. Newton, IV, Washington, D.C.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GODBOLD and FAY, Circuit Judges.

THORNBERRY, Circuit Judge:

This case attacks the constitutionality of a nonwaivable regulation of the Secretary of the Army which bars enlistment of unwed parents of minor children. 1 Shirley Mae West and her daughter, plaintiffs, are an unwed mother and minor child. Ms. West met all other enlistment criteria, but was rejected on the basis of the unwed parents regulation. The Wests ask for a declaratory judgment, mandamus, and back pay and benefits for themselves and for a putative class.

The district court ruled on cross motions for summary judgment that it lacked jurisdiction because the question was nonjusticiable, citing Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). We affirm the district court's action on the basis that this challenge to the regulation is nonreviewable.

The reviewability of military enlistment criteria is an area littered with unanchored dicta, most of which argue against review of matters of the selection of enlistees. See, e. g., Gilligan v. Morgan, supra; Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Silverthorne v. Laird, 460 F.2d 1175 (5 Cir. 1972); United States v. McDuffie, 443 F.2d 1163 (5 Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 157, 30 L.Ed.2d 101 (1971). This court might simply follow these loose statements. The better approach in this case, however, would entail analysis under the applicable tests for reviewing military action. In this Circuit, the central authority is Mindes v. Seaman, 453 F.2d 197 (5 Cir. 1971).

Mindes permits review of the constitutionality of military decisions where the district court strikes a balance in favor of review based on four factors: (1) the strength of the plaintiff's claim; (2) potential harm to the plaintiff if review is denied; (3) type and degree of anticipated interference with the military function; and (4) extent to which military expertise or discretion is involved.

Gilligan v. Morgan, supra, does not appear to change this Fifth Circuit test. There, plaintiffs requested the district court to exercise continuing supervision over the practices and procedures of the Ohio National Guard, including enlistment, training, discipline and equipping. The Supreme Court held that this requested relief went too far and presented a nonjusticiable question. The Court was concerned with the type of relief requested it was extraordinary, broad, and entailed continued judicial supervision of the military. The present case does not seek such relief. Furthermore, Gilligan seems to prohibit only widespread interference with military matters involving the exercise of military discretion. The facts in Gilligan therefore would most likely present no reviewable question under Mindes.

Ordinarily, the proper procedure would be to vacate the district court's order and remand for a determination of reviewability under Mindes and resolution of the constitutional challenge if there is a justiciable challenge. But since the district court resolved the issue on cross motions for summary judgment, there are no contested facts and the appellate court is as capable as the district court to resolve the questions of law. To proceed through the four Mindes factors: 2

(1) Strength of Plaintiffs' Claim

Plaintiffs allege that the regulation unconstitutionally burdens the right to marry or not to marry and the right to rear children. 3 This, they assert, is a fundamental right propelling the case into a "strict scrutiny" posture on the merits. The government disputes this, and states that the Social Security case of Weinberger v Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), controls. We agree with the government. Salfi holds that rational restrictions on noncontractual government benefits and services are valid in the absence of affirmative government action which curtails important constitutional liberties, since such benefits do not in themselves enjoy constitutionally protected status. The doctrine of "irrebuttable presumptions" is inapplicable to such questions. There is no right to join the military, and therefore the Salfi standard applies. Relevant to this inquiry is Army experience under the predecessor to the challenged regulation. That regulation, in effect from July 1973 to July 1974, barred enlistment of unwed parents of minor children, but permitted waiver:

(From July 1973-July 1974,) single applicants with a dependent child or children under 18 years of age were required to process and have approved a waiver in their behalf prior to enlistment. During the period July 73-July 74, there was a significant increase in the enlistment of single applicants with minor children. Also, during this period, sole parents presented many problems in other personnel management areas. These soldiers were unable, many times, to perform during normal duty hours because of the requirement to care for the children; some were not available for extra duty requirements in the evening, weekend, and other odd duty hour requirements. Special considerations were required during extended and unannounced training exercises to avoid the children suffering from lack of proper care and supervision. Overall, this category of soldiers was requiring an inordinate amount of management time and presented morale problems because of the inconsistency in unit policies regarding duty and other requirements. Of paramount importance, this category of soldiers was not providing the assignment flexibility required to manage a military force on a worldwide basis and caused inequities in the Army assignment policies.

During the period July 73-July 74, the problems associated with single applicants with minor children were highlighted. Even though enlistees had made arrangements for the care of the...

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