Owens v. Brown

• Decision Date: 27 July 1978
• Docket Number: Civ. A. No. 76-2086.
• Citation: 455 F. Supp. 291
• Parties: Yona OWENS et al., Individually and on behalf of all others similarly situated, Plaintiffs, v. Harold BROWN, Secretary of Defense and W. Graham Claytor, Secretary of the Navy, Defendants.
• Court: U.S. District Court — District of Columbia

455 F. Supp. 291

Yona OWENS et al., Individually and on behalf of all others similarly situated, Plaintiffs, v. Harold BROWN, Secretary of Defense and W. Graham Claytor, Secretary of the Navy, Defendants.

Civ. A. No. 76-2086.

United States District Court, District of Columbia.

July 27, 1978.

COPYRIGHT MATERIAL OMITTED

Marjorie M. Smith, Jill Laurie Goodman, Susan Deller Ross, New York City, Katherine A. Mazzaferri, Trudy Levy, Washington, D. C., for plaintiffs.

Earl J. Silbert, U. S. Atty., Michael J. Ryan, Lt. Arthur P. Leary, JAGC, USNR, Washington, D. C., for defendants.

ORDER GRANTING CLASS CERTIFICATION

SIRICA, District Judge.

The only serious objection to certifying this case as a 23b(2) class action on behalf of Navy women stems from the concern voiced by defendants that some female personnel may not share plaintiffs' desire to remove the statutory bar of 10 U.S.C. § 6015 (1970) that prevents their being assigned to duties aboard Navy vessels. Defendants point is not well taken for two principal reasons.

First, defendants have not substantiated their concern that there is actually an antagonism among Navy women concerning duty assignment aboard Navy ships. In an effort to illustrate a difference in opinion in this respect, defendants point only to the results of an unpublished and admittedly inconclusive survey that was taken by defendants' employees of 81 female members of the Navy. While this survey shows that some of the persons interviewed "do not think women should go to sea," the overwhelming consensus is to the contrary.

More importantly, even accepting defendants' assertion of a division of opinion among class members, this difference does not appear to be legally significant on the question of class certification. The issue in this case is not whether the Navy must assign female personnel to ship duty against their wishes. Rather, the question is whether Navy authorities must exclude women from ship assignments whether or not they wish to go to sea. Viewing the issue in this light, it appears that any antagonism that may exist among class members is insignificant since it can readily be obviated by the Navy Department itself when it develops policies concerning the assignment of women aboard Navy vessels. Commanding officers enjoy broad discretion in making duty assignments; and certainly, in assigning women to duty, the Navy can take account of the fact that some females may have joined the service with neither an expectation nor a desire to serve aboard Navy ships. See Defs. Ans. to Pl. Sec. Int. No. 21. In short, it is in defendants' power to obviate any adverse effect that might flow from the difference in attitude that they offer as grounds for denying class certification.

Accordingly, because the Court finds that all requirements of rule 23(a) and 23(b)(2) are satisfied in this instance, it is by the Court this 27th day of July, 1978,

ORDERED that plaintiffs' motion for class certification be, and the same hereby is, granted, and the class is defined to consist of all women serving in the Navy who are or will be adversely affected in their service careers by the enforcement of 10 U.S.C. § 6015 (1970).

OPINION

This civil rights action presents a challenge to the constitutionality of a federal statute that bars women members of the Navy from performing any duty in any capacity aboard any ship that is currently in service in the Navy's fleet. The provision that occasions this challenge is 10 U.S.C. § 6015 (1970).¹ Section 6015 begins by conferring on the Secretary of the Navy broad discretion to qualify women for naval duty and to prescribe the range of their training and assignments. But the statute concludes with an absolute prohibition that prevents the Secretary from exercising his discretion to assign female personnel to duty at sea. Plaintiffs, a group of female officers and enlisted women in the Navy, challenge this prohibition as abridging the equal protection guarantee embodied in the due process clause of the fifth amendment.² Their complaint seeks an order declaring section 6015's absolute bar unlawful and enjoining defendants, the Secretary of the Navy and the Secretary of Defense, from relying on it when formulating policy for the training and assignment of Navy women to duty.³ As will appear more fully below, plaintiffs' position is well taken. The application of developing equal protection principles convinces the Court that to the extent that section 6015 operates without counter-balancing justification to foreclose the discretion of the Secretary of the Navy regarding the assignment of female personnel to duty aboard Navy vessels, the sweep of the statute is too broad to pass constitutional muster.

I. Facts and Background

Out of a total personnel complement of approximately half a million individuals, there are some 25,000 women currently serving in the Navy. This number reflects a marked increase in the recruitment of females over recent years and is part of a general trend towards relying more heavily on female personnel to fill the ranks of the several military forces. But none of these many thousands of Navy women is presently permitted to hold any of the wide range of positions available aboard the Navy's fleet. This holds true even when commanding officers find particular women recruits equally as qualified for particular assignments as their male counterparts. This is also the case even when their superiors find them affirmatively more qualified. The reason for this mandated disparate treatment is section 6015, a provision that allows of but one distinction, that of male and female.

The distinction wrought by the statute is the source of numerous and easily documented differences in the prospects facing men and women members of the Navy. But none is more pronounced than exists in the area of duty assignments. The range of duties and assignments available to female members of the Navy is severely restricted in comparison with assignments open to men for the simple reason that, under the statute, women are eligible exclusively for shore duty, while their male counterparts may serve both on shore billets and in the more numerous positions available at sea. This disparity stands out starkly when a comparison is made between the categories of job classifications that are open to members of the respective sexes. Of the scores of ratings and career classifications available in naval service, females are barred from all but a small fraction, while men, by contrast, are allowed to compete for all available positions. Women are not only excluded from billets that involve assignments at sea, they are also precluded from a significant number of shore billets because these posts are restricted to persons who are eligible for duty aboard ships.

The exclusion of women from most job classifications also operates to preclude them from gaining access to a wide range of opportunities for the development of job skills and areas of technical expertise. There is presently little reason for military officials to train and qualify female members to perform jobs that are foreclosed to them by statute. And the Navy has understandably and with almost uniform consistency refrained from training women for callings reserved entirely for members of the opposite sex. Aside from the obvious effect this has on the advancement of females within the Navy, this limitation works the additional consequence of depriving women members of skills that in all likelihood will prove vital to their ability to compete for and secure satisfactory employment when they end their military careers and reenter the private sector.

The disadvantage faced by women in the private sector as a result of section 6015 is heightened by the fact that the statute effectively places a ceiling on the level of female recruitment by the Navy. Despite the current policy to enlarge the female component in the naval forces, the fact remains that only so many shore-confined members are capable of being integrated into a contingent that is "organized, trained and equipped primarily for prompt and sustained combat incident to operations at sea." 10 U.S.C. § 5012(a) (1970). The practical effect of this limitation is that a disproportionately small number of women will have the opportunity to embark upon a career whose successful completion carries with it numerous and economically significant veterans' benefits and preferences.

But a career in the Navy is not measured entirely in terms of the employment opportunities and veterans' privileges that accompany military service. There is in addition to the practical benefits that inure upon serving in the Navy a moral element that forms an integral part of the overall experience. This springs from the idea of individuals taking part in an essential national enterprise to the limits of their abilities. This aspect of a naval career is not something plainly reserved for one gender rather than the other. But because of section 6015, sex is required to take precedence over individual ability where the essential part of naval service is concerned.

Significantly, none of the limitations and disadvantages facing Navy women is traceable to any studied evaluation made of male and female capabilities that reveals that women lack the native ability to perform competently in positions held exclusively by men. Indeed, several reports on the subject made under military auspices suggest that just the opposite is true with respect to some women and some positions. The distinction is rather the product of the statutory presumption reflected in section 6015 that all women are unqualified to discharge any of the duties performed on any of the Navy's ships.

For obvious reasons, the harsh effects occasioned by this presumptive disqualification in individual cases are not difficult to picture. They are amply illustrated by looking at the limitations placed on the military careers of several...