Johnson v. Alexander

• Citation: 572 F.2d 1219
• Decision Date: 04 May 1978
• Docket Number: No. 77-1250,77-1250
• Parties: 16 Fair Empl.Prac.Cas. 894, 16 Empl. Prac. 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1219

572 F.2d 1219

16 Fair Empl.Prac.Cas. 894, 16 Empl. Prac.

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.

Submitted Nov. 16, 1977.

Decided Feb. 17, 1978.

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 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 citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

In 1868 Congress declared that the fourteenth amendment had been validly ratified by the requisite number of states, and in 1870 Congress adopted new civil rights legislation which included a virtual reenactment of the Civil Rights Act of 1866. See Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971).

As is well known, Title VII of the Civil Rights Act of 1964 prohibits racial and other types of discrimination in employment in industries covered by the Act. The Act was substantially amended and broadened by the Equal Employment Opportunity Act of 1972, P.L. 92-261, 86 Stat. 103. Section 11 of that Act added § 717 to Title VII of the 1964 statute, and the new section has been codified as 42 U.S.C. § 2000e-16. We will refer to it as § 717. Section 717(a) is as follows:

(a) All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

Subsection (b) places primary enforcement responsibility on the United States Civil Service Commission. However, subsection (e) provides that nothing in the statute is to be construed as relieving any federal agency or official from existing obligations relating to equal employment opportunity in government service.

As has been seen, § 717(a) refers to 5 U.S.C. § 102, and that statute defines the military departments of the United States as being the Army, Navy and Air Force. That definition is also found in 10 U.S.C. § 101(7), and 10 U.S.C. § 101(4) defines the "armed forces" of the United States as being the Army, Navy, Air Force, Marine Corps and Coast Guard.

II.

We turn now to the facts of the case; and since we are required to view them in the light most favorable to the plaintiff, our statement of the facts is based essentially on what is set out in the affidavit that plaintiff filed in opposition to the motion of the defendants and in plaintiff's brief.

In late November, 1975 plaintiff applied for enlistment in the Army. He was interviewed initially by a recruiting officer in a black neighborhood in St. Louis and was referred to AFEES where he presented himself on or about November 25, 1975.

As of that time plaintiff had had a number of encounters with Missouri law enforcement agencies. He had been confined for a time as a juvenile in the facility located at Booneville, Missouri; this seems to have been in 1973 and during the period of his confinement he made some use of marijuana.

After plaintiff's release from Booneville he was the subject of three adult arrests, none of which resulted in a criminal conviction. One of those arrests may have been on a charge of homicide, and in connection with that arrest plaintiff was held in jail in St. Louis for a period of thirteen months after which he was released. Of course, plaintiff was not able to work during the period of his confinement.

It appears that plaintiff dropped out of school without completing his high school education, and his employment record has been marked by a number of "lay-offs." It does not appear, however, that plaintiff has been discharged from any job that he has held.

At AFEES plaintiff passed the physical and basic mental examinations required of all applicants. At some stage in the proceedings, perhaps in the course of plaintiff's interview with a Dr. Meyer, plaintiff's arrest and employment record came to light as did the fact that plaintiff had not graduated from high school. Dr. Meyer recommended that plaintiff's application be rejected for the time being and that no further application of plaintiff be considered for a period of...