572 F.2d 1219 (8th Cir. 1978), 77-1250, Johnson v. Alexander

Docket Nº:77-1250.
Citation:572 F.2d 1219
Party Name:Dec. P 8115 Richard Jerome JOHNSON, Appellant, v. Clifford L. ALEXANDER, Jr., Individually and in his official capacity as Secretary of the Army, Lt. Gen. R. R. Taylor, Individually and in his official capacity as Surgeon General of the United States Army, and Maj. Lee Wilson, Individually and in his official capacity as Commanding Officer of St. L
Case Date:February 17, 1978
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1219

572 F.2d 1219 (8th Cir. 1978)

Dec. P 8115

Richard Jerome JOHNSON, Appellant,

v.

Clifford L. ALEXANDER, Jr., Individually and in his official

capacity as Secretary of the Army, Lt. Gen. R. R. Taylor,

Individually and in his official capacity as Surgeon General

of the United States Army, and Maj. Lee Wilson, Individually

and in his official capacity as Commanding Officer of St.

Louis Armed Forces Examining and Entrance Station, Appellees.

No. 77-1250.

United States Court of Appeals, Eighth Circuit

February 17, 1978

Submitted Nov. 16, 1977.

Rehearing and Rehearing En Banc Denied May 4, 1978.

Christopher Hexter, Schuchat, Cook & Werner, St. Louis, Mo., argued and made rebuttal, David A. Lander, The Legal Aid Society of the City and County of St. Louis, St. Louis, Mo., on brief, for appellant.

Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., argued, Barry A. Short (former U. S. Atty.), St. Louis, Mo., on brief, for appellees.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

In November, 1975 plaintiff, Richard Jerome Johnson, a black male, undertook to enlist in the United States Army at St. Louis, Missouri. His application was rejected by reference to Paragraphs 2-34(a) and 2-34(b) of Army Regulation 40-501 which will be described in due course.

In July, 1976 plaintiff commenced this action in the United States District Court for the Eastern District of Missouri alleging that the provisions of the regulation that have been mentioned invidiously discriminate against blacks and are either unconstitutional or are invalid under the provisions

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of 42 U.S.C. § 1981 or § 2000e-16, or both. Plaintiff sought both class and individual relief. Named as defendants were Martin Hoffman, Secretary of the Army (Clifford L. Alexander, Jr. has replaced Martin Hoffman); Lieutenant General R. R. Taylor, Surgeon General of the Army; and Major Lee Wilson, Commanding Officer of the St. Louis Armed Forces Examination and Entrance Station (AFEES).

The defendants moved alternatively for a dismissal of the complaint or for summary judgment. The district court (The Honorable John F. Nangle, District Judge) granted the motion for summary judgment and dismissed the complaint. Johnson v. Hoffman, 424 F.Supp. 490 (E.D.Mo.1977). This appeal followed.

Paragraph 2-34(a) and 2-34(b), hereinafter at times Paragraph "a" and "b", of Army Regulation 40-501 set out certain criteria by reference to which an applicant for enlistment in the Army may be rejected.

Both of the paragraphs refer to character or behavior disorders or to departures from generally accepted behavorial norms. Paragraph "a" mentions "frequent encounters with law enforcement agencies or antisocial attitudes or behavior." It states that while such disorders are not a cause for administrative rejection of an application for enlistment, they are tangible evidence of an impaired characterological capacity to adapt to military service. Paragraph "b" refers to such things as immaturity, instability, personality inadequacy and dependency as demonstrated by repeated inability to maintain reasonable adjustment in school, with employers, with fellow workers and other societal groups.

While plaintiff does not appear to contend that the challenged paragraphs of the regulation were purposely designed to discriminate against blacks or members of other minority groups or that the paragraphs are being discriminatorily applied to such persons, he does contend that in actual operation they are discriminatory and unlawful. Plaintiff complains principally about the fact that Paragraph "a" calls for a disclosure of arrests of the applicant by the police even though the arrests were not followed by convictions of crime.

I.

Before stating the facts we will mention the constitutional and statutory provisions involved in the case.

The fifth amendment to the Constitution prohibits the federal government from depriving any person of life, liberty or property without due process of law.

The thirteenth amendment prohibits slavery or involuntary servitude, except as punishment for crime of which the person involved has been duly convicted.

The fourteenth amendment is directed at the states and their political subdivisions. It contains a "due process" clause identical to that appearing in the fifth amendment, and it also contains the familiar clause that prohibits the states from denying to any person the equal protection of the laws. Although the fifth amendment does not contain an express "equal protection" clause, it is now settled that the concept of due process of law prohibits the federal government from discriminating against any person on such irrelevant and invidious grounds as race, color, religion, or national origin. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

Both the thirteenth and fourteenth amendments authorize Congress to implement them by appropriate legislation. The thirteenth amendment was adopted in 1865, and in 1866 Congress adopted the Civil Rights Act of that year, part of which has come down to us as 42 U.S.C. § 1981, which is as follows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white...

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