Lindenau v. Alexander, 80-1066

• Decision Date: 28 October 1981
• Docket Number: No. 80-1066,80-1066
• Citation: 663 F.2d 68
• Parties: Irene LINDENAU, Plaintiff-Appellant, v. Clifford ALEXANDER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 68

663 F.2d 68

Irene LINDENAU, Plaintiff-Appellant, v. Clifford ALEXANDER, et al., Defendants-Appellees.

No. 80-1066.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 14, 1981.

Decided Oct. 28, 1981.

Ann Yalman, Santa Fe, N. M., for plaintiff-appellant.

Captain Richard D. Rosen, Litigation Div., Dept. of the Army, Washington, D.C. (John W. Matthews, Litigation Div., Dept. of the Army, Washington, D.C., on the brief, Ronald F. Ross, Asst. U. S. Atty., D.N.M., Albuquerque, N.M., Colonel Arnold I. Melnick, and Major M. Scott Magers, Litigation Div., Washington, D.C., of counsel), for federal defendants-appellees.

Reginald J. Storment, Asst. Atty. Gen., State of N.M., Santa Fe, N.M. (Jeff Bingaman, Atty. Gen. and Vernon O. M. Henning, Asst. Atty. Gen., Santa Fe, N.M., on the brief), for state defendants-appellees.

Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges.

SETH, Chief Judge.

Plaintiff-appellant Irene Lindenau enlisted in the New Mexico Army National Guard on September 10, 1976. She previously served in the United States Navy. At the time appellant enlisted in the National Guard she was a divorced mother with custody of her two minor children. She arranged for child care with her parents while she trained and served with the National Guard. However, at the time of appellant's enlistment the Army National Guard had a regulation, AR-601-210, which provided in pertinent part:

"(2) An applicant without a spouse and with one or more dependents under 18 years of age is disqualified, except as provided in (3) and (4) below. No waiver is authorized.

"(3) A divorced applicant may be processed for enlistment when the child or children have been placed in the custody of the other parent by court order and the applicant is not required to provide child support. No waiver is required.

"(4) A divorced applicant may be processed for dependency waiver when the child or children have been placed in the custody of the other parent by court order and the applicant is required to provide child support." (Emphasis in original.)

By reason of this regulation plaintiff Lindenau should not have been enlisted. She applied for a waiver of AR-601-210, but the request was denied because it did not comply with the waiver provisions of the regulation set out above. Subsequently appellant was administratively discharged with an honorable discharge.

Appellant filed this action against the federal and state defendants soon after her discharge. In her complaint she challenged the constitutionality of AR-601-210 as violating the Fifth Amendment of the Constitution on the grounds that it discriminated against her solely because of her status as an unmarried parent of minor children, and against all women because it adversely affects more women than men. She also charged that the regulation penalized her for exercising her freedom to choose in matters of marriage and family life, freedoms secured by the Constitution.

The defendants filed a motion to dismiss, and in the alternative for summary judgment. Appellant sought to initiate discovery, but defendants moved for a protective order which was entered. After a hearing motion for summary judgment was granted. On appeal Irene Lindenau attacks this summary judgment as improvidently granted in that she was denied a chance for discovery relevant to her constitutional claim; further, it was inappropriate because there existed issues of motive and intent, and she claims the trial court erred in concluding that her administrative discharge was not justiciable.

Traditionally the courts have been reluctant to intervene in or review military affairs, particularly those dealing with military discretion. In Schlesinger v. Ballard, 419 U.S. 498, 510, 95 S.Ct. 572, 578, 42 L.Ed.2d 610, the Supreme Court stated:

"This court has recognized that 'it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.' Toth v. Quarles, 350 U.S. 11, 17 (76 S.Ct. 1, 5, 100 L.Ed. 8). See also Orloff v. Willoughby, 345 U.S. 83, 94 (73 S.Ct. 534, 540, 97 L.Ed. 842). The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U.S.Const., Art. I, § 8, cls. 12-14, and with the President. See U.S.Const., Art. II, § 2, cl. 1."

In Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842, Justice Jackson wrote:

"The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters."

In Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407, the plaintiffs sought an order requiring the federal courts to review military decisions relating to training, weaponry, and operations of the Ohio National Guard. The Supreme Court concluded there was no justiciable controversy. Chief Justice Burger, writing for the majority, stated:

"(I)t is difficult to conceive of an area of governmental activity in which the courts have less competence. 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 Legislative and Executive Branches." (Emphasis in original.)

We recognized in Schulke v. United States, 544 F.2d 453, 455 (10th Cir.), that "(t)he role of the federal judiciary with respect to the internal affairs of the military is narrow and restricted." We made a similar statement in Noyd v. McNamara, 378 F.2d 538, 540 (10th Cir.):

"Military regulations must be considered in the light of military exigencies, 'must be geared to meet the imperative needs of mobilization and national vigilance-when there is no time for "litigious interruption" ' and great and wide discretion exists in the executive department both in the formation and application of regulations and in their interpretation in such matters as what constitutes 'for the good of the service.' "

The case concerned the question as to whether a pre-enlistment contract had been complied with and the issue was examined and decided. This is not to say there are no areas with precedent for judicial review of matters in the military establishment. After all, "members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community." Parker v. Levy, 417 U.S. 733, 751, 94 S.Ct. 2547, 2559, 41 L.Ed.2d 439.

In Mindes v. Seaman, 453 F.2d 197, the Fifth Circuit considered the scope of review federal courts should have in military matters. That court found that federal courts may "review matters of internal military affairs to determine if an official has acted outside the scope of his powers," 453 F.2d, at 199, citing Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503. Also, actions against military officials for violating their own regulations are reviewable or justiciable, as are cases questioning the constitutionality of statutes relating to the military, executive orders, and regulations. "Court-martial convictions alleged to involve errors of constitutional proportions have consistently been held to be subject to court review," and "(s)elective service induction procedures present another area with clear precedent for judicial review ...." 453 F.2d, at 201.

In this appeal neither party disputes that there is subject matter jurisdiction. The question is whether Irene Lindenau's claims "presented and the relief sought are of the type which admit of judicial resolution." Powell v. McCormack, 395 U.S. 486, 517, 89 S.Ct. 1944, 1961, 23 L.Ed.2d 491.

In NeSmith v. Fulton, 615 F.2d 196, 201, the Fifth Circuit summarized its position by saying:

"Mindes v. Seaman requires a court contemplating review of an internal military determination first to determine whether the case involves an alleged violation of a constitutional right, applicable statute, or regulation, and whether intra-service remedies have been exhausted. If so, the court is then to weigh the nature and strength of the challenge to the military determination, the potential injury to the plaintiff if review is refused, the type and degree of anticipated interference with the military function, and the extent to which military discretion or expertise is involved in the challenged decision."

The court in West v. Brown, 558 F.2d 757 (5th Cir.), considered a case quite similar to the one before this court. There, appellant West was an unwed mother of a minor who met all the necessary requirements for enlistment in the National Guard. The court there found plaintiff's challenge to an earlier form of AR-610-210 to be nonreviewable. Other jurisdictions have accepted the Fifth Circuit's analysis to determine the reviewability of military matters. See Schlanger v. United States, 586 F.2d 667 (9th Cir.), Doe v. Alexander, 510 F.Supp. 900 (D.Minn.), Turner v. Egan, 358 F.Supp. 560 (D.Alaska), aff'd, 414 U.S. 1105, 94 S.Ct. 831, 38 L.Ed.2d 733, and others.

The Third Circuit in a significant decision in Dillard v. Brown, 652 F.2d 316, declined to adopt the position of the Fifth Circuit and reviewed plaintiff's claim directed to an Army regulation.

There is no guidance from the Supreme Court on how to proceed in determining how far the judiciary should inquire into military matters. The trial court in the case sub judice relied on the reasoned approach in Mindes as applied in West v. Brown, in granting summary judgment against Irene Lindenau. The court concluded that her alleged constitutional deprivations were not strong, and that the regulation was facially neutral and had a strong historic and rational basis. Further the trial court found that she was only being denied the privilege of enlisting, and that the...