Captain Susan R. STRUCK, Plaintiff-Appellant, v. SECRETARY OF DEFENSE Et Al., Defendants-Appellees

Before CHAMBERS, Judge, Circuit MADDEN,* Judge of the United States Claims, Court of DUNIWAY, and Cir Judge. cuit Judge: MADDEN, Struck, Susan of the Unit- R. Force, ed States Air hereinafter some- appellant, times referred to as brought the action from which the in- appeal arises, stant in the United States District Court for the Western District Washington. sought per- Her suit injunction declaratory manent relief Discharge “To Prevent Unlawful from Military Service.” Air filed Force complaint an answer to the and made a motion dismiss. Briefs were filed arguments by and oral were heard January District Court on 1971. findings of fact made which we summarize as follows: duty entered on active Struck April Force on States Air United 8, 1967, offieér, and as a commissioned duty continuously active from served prior to the date of that date. On continuously there- her commission and promulgat- regulation, after Force, Secretary of ed Air providing from the who became Force of officers serving During 1970, nant. while ac- duty Nam, Captain tive in Viet Struck pregnant. became October About duly appeared consti- before duly tuted Board of convened Officers pursuant pertinent statute. Board found that she was separation from recommended her discharge. Air Force an honorable with Secretary About October Force, the Air an Air after review Judge, Claims, Madden, sitting designation. J. Warren Senior States Court questions disputed approved the There are no Board, Personnel Force problem about findings fact. There recommendations Regula- text, meaning Cap- Air Force directed Board of Officers It is clear and free discharged, tion an hon- 36-12. tain says: ambiguity. possible. discharge, as soon orable effecting Cap- promulgated were Orders of- The commission woman discharge on October tain Struek’s least terminated the ficer will be with Judge However, who District the 1970. practical delay determined when 1970, sitting a issued October on was in or b of the conditions a that one the stay date of the effective 24 hour of below exist . ap- discharge. an October On Pregnancy: a. stay temporary made plication a was for (1) General: Appeals, of this States Court discharged (a) A woman will be by it. Also on October and was denied practi- from the with the least service discharge 29, 1970, Captain was Struck’s delay made cal when a determination is Judge stayed by temporarily of this a preg- a officer that she is medical Appeals, for a until her motion of Court nant. . . . injunction preliminary be consid- could lief, tain Struck’s filing temporary of District application, preme sion discharge ered cember charge Washington. on the but Mr. Justice of Court a Court for this Court’s order stayed panel a relief. merits entered period of the United stayed pending motion for this Court of the order in the United States Douglas of ten On December an order Western Court. On De- temporary re- days for States, upon denying her denied of final that after her the Su- District deci- Cap- her the Air Struck, while in a commissioner officer status. any woman officer will be terminated constitutionality ^[*****] b. Minor (d) attack, (1) established Force, the must General. Has least (cid:127)» then, upon the given Children: that she: practical and is an discharge birth to a ^[*] commission delay n « action of attack of Regulation. living child Captain when ^[*] upon the of February The District on urges Captain that Air Struck Law, 1970, filed Conclusions of which its Regulation be is unconstitutional Force Reg- that the Air Force are to effect deprive application its cause concerning of ulation liberty proc property due of or without is reasonable and constitu- nant officers law, the Fifth ess of in violation might ; tional that Struck apparently claim Amendment. Her lawfully discharged; that therefore be arbitrary Regulation ir and that Findings of Fact the District Court’s brings an in such One who rational. constituted that and Conclusions Law entity public which dictment mer- Court's final determination “on the heavy has, legislation properly, a enacts its” the District as Court understood Regulation persuasion. As to burden of language Douglas his of Mr. in Justice ei persuaded that it is 36-12 we are not 17, 1970; order December arbitrary In the in ther or irrational. complaint was defendant’s motion the duty case, Captain was stant costs; prejudice dismissed with and with nursing Corps activity of the Air application Struck’s oral By September Viet Nam in stay pending appeal, made after for sev been time she had the District Court had rendered ad- its If, by own error of our eral an months. January opinion enemy, oral forces, verse an or attack charge hospital or denied. of which was damaged progress expectan- in which she worked had been of whether patients hospital personnel cy, will, may, had culmination, or its injured frightened probably been been or had will disable the soldier confused, improbable consequence performing a not the duties a soldier. As might Captain, expectant father, leave, been that as have his or the injury might orders, post or shock suf- result have deferment of his call are not miscarriage, irrevocable, patient suppose, perform- fered become we if his such, As instead a nurse. instead ance a soldier is needed. being soldier, have useful she would argues Captain Struck that because liability been a burden to the Secretary Air Force personnel, Force. fact application 36-12, waive the § might non-pregnant females, males and Regulation itself find no is invalid. We been and made useless disabled argument. merit There the attack is irrelevant. events Those particu- well be situations which would have been the result the for- circumstances, length service, long lar of pregnant of as to tunes war. But the highly special experi- qualifications or officer-nurse, Corps, it the when ence, Secretary would induce the to pregnancy, had become of her aware Regulation. It waive the is discre- his imprudently would have acted if it al- tion, Court, not that of a that in- is her lowed to in the of ac- remain zone volved. fighting. tive was in fact removed She States, discharge the and the correctly appellant points The out that proceedings ap- involved the instant the Due Process of the Fifth Clause peal place. took may, case, proper Amendment in- in a Regulation Federal action Air Force validate official of a kind 36-12 not in is State, which, conflict with Fifth if done would the Amendment’s violate Equal Due the Protection Clause of the Process Clause. Bolling Fourteenth v. Amendment. argues, effect, Struck that Sharpe, 347 it is uneconomical unwise to (1954). physi- L.Ed. a relevant But charge training an officer, whose has cal difference males and fe- between costly Government, been because justifies separate males their classifica- pregnant. points she become She purposes, and tion some avoids the for saying “During own her her situation Equal problem of a denial of Protection day not she did miss of one Court, of the Gruenwald Law. duty. ready, At all was times she will- Gardner, (CA 2, 1968), 390 F.2d 591 ing perform and able to her as an duties says: Air Force But nurse.” we recall fungible” fighting zone, not “two sexes removed from the [T]he * * * good recognition special the of the service her- and of constitutionally self and her favored treatment can unborn child. The wisdom * * * legislation and the the answer be afforded women. is question Court, the it had if only discrimination” or the “invidious legislature, been the would have enacted “patently is the classification which legislation is concern of lacking arbitrary utterly in ra- [and] appellant provi- Court. The refers to a justification” tional which is barred sion Air Force Manual to the effect “equal process” or either the “due if an Air Force Officer’s wife * * * protection” A clas- clauses. “port call fall orders will not regulation, or on the other sification during period six weeks before hand, “which is in relation reasonable delivery.” six weeks expected after We adopted in the in- its palpable think there is a difference be- community proc- terest of the is due expectant tween an father and an ex- regards pectant question mother ess.” heading, compelled an order were to do “We brief contains appellant’s was, right this situ- appellant’s of a Court. The Court violates 36-12 “A.F.R. Army’ ation, ‘running ”. privacy the Constitution.” under heading short. elaboration that Air asserts variety length recall we When Regulations deny her First to her Force the Su- opinions the Justices right Reli to Freedom of Amendment question in privacy preme I, gion. points C to Part She Connecticut, 381 U.S. Griswold Regulations, which Amendments (1965), we L.Ed.2d “Discharge says Action will Amendment thinking forgiven Pregnancy Terminat be cancelled ipse dixit should appellant's mere abortion, says as one Reg- ed.” She Air Force to invalidate suffice terminating by method simplified matter But ulation. her, proceedings was not availa appellant’s brief: sentence was a Roman her because she ble to * * show- substantial Without religious Catholic and her convictions ing should necessity, constitutionally permit did not have an abortion. in- allowed not be many No doubt female soldiers would private personal and most vade right they think not resort to abortion because its officers. of women act, a criminal but or should be for, necessity at least cases, problem their think no Constitutional We rationality degree high of Air involved. plainly Regulation 36-12 shows Force The to of whether answer through We of this case. the fabric public a statute or other or appellant’s claim find no merit with action constitutes an interference privacy. violation of Religion, an the Free Exercise of or Es is, Religion, dec tablishment of and for 83, Willoughby, v. 345 U.S. In Orloff been, of the most elusive in ades one 97 L.Ed. 73 S.Ct. Burger, in our law. Chief Justice ambigui- said, (1953) the without Court Commissioner, case of Walz Tax v. judges ty qualification, are not “But 25 L.Ed.2d U.S. S.Ct. running Army.” given the task (1969), elaborated the subtleties and displace asking Captain to us problem. difficulties of the He dis military in cases authorities Education, Everson Board of cussed v. military personnel, and 91 L.Ed. 711 every say Force, and to the Air (1947) ; Clauson, Zorach 343 U.S. Service, Military “You branch (1952); 96 L.Ed. 954 not, contempt penalty must under the Yerner, 398, 83 Sherbert v. 374 U.S. S. court, separate from her of military this woman (1963), Ct. 10 L.Ed.2d 965 you must not dis- And service. other cases. He said: against prejudice her criminate her and judgment the Reli- Each value under by doing in her career what gion turn on clauses must therefore you Struck, Captain re- did question particular acts in combat, moving her from the zone of * * * are intended to interfere exercise, anywhere, of her and from the professional religious practices with beliefs and skill which in doing effect of so. a nurse.” Struck’s case was injunction If the In case it is not claimed Court issued such an our instant unfortunate, per- Military, and the that the results were nor could it be claimed amending Regulation haps disastrous, be, drafting “Why Military imprudent as was the so 36-12 intended to discriminate religious permit princi- vulnerable an officer or sol- female soldiers whose so ples position?” dier to The be in such forbade But Chief abortions. be, Military’s quoted state- truthful answer would Justice’s clause last ment, doing “or quotation, have the effect of so” supra, We recur now our requires opinion consideration. In Sherbert from the Court’s in Sherbert v. Verner, supra, Mr. Justice Brennan rec- Verner. Our conclusion the Free Ex- ognized govern- Religion that the mere fact that problem ercise of raised ment tendency action would or have some compel- Struck is that there is a adversely ling public to affect having the Free interest in not Religion Exercise of did not the in- close nant Military female soldiers in the es- quiry. said, opinion p. The tablishment, at 406 of equal- that such a soldier is 398, p. ly 374 U.S. vulnerable, 1795 of 83 S.Ct.: whether she has reli- no gion, religion or a which forbids abor- We must next consider whether some tions, perfect and that and universal compelling state interest enforced in must, Religion give Free Exercise of eligibility provisions of the South way slight necessary extent justifies Carolina statute the substan- compelling public interest, conserve the infringement tial appellant’s being way practicable no to con- right. First Amendment is basic serve both interests. It will be remem- merely showing of a rational bered that the Freedom of Exercise of relationship in- to some colorable state Religion problem purely hypothetical highly terest would suffice in this in this case. sensitive constitutional area. judgment District Court Military, legislating on the dismissing appellant’s is af- action subject to do what about fe- stay entered heretofore firmed. soldiers, dealing male with a “com- days after will be dissolved 21 pelling” interest, public importance filing This the date of the of this order. hereinabove. discussed of which we have appellant apply will enable to the Cir- Military had deal But the also stay, cuit for a further de- Justice pregnancies. terminated sires to do so. pregnancy would The termination of Rehearing Sugges- On Petition for disability, terminate the charge Rehearing tion of a in Banc a waste- of the soldier would be training experience. So ful loss of Military CHAMBERS, Judge, Before Chief said that the termination the MADDEN,* Judge, United States the dis- pregnancy terminate should Claims, and DUNIWAY and charge proceedings. But WRIGHT, Judges. Circuit says the termination that this rule about against pregnancy discriminates ORDER apart fe- from other because it sets her religious by male soldiers affected Judge having Madden died while the Military, prob- principles. if that The petition rehearing pending, for a was it, well have lem had occurred to Judge Wright Circuit by chosen lot thought exempted Roman if it that place panel take his to consider the Catholics, perhaps of other members rehearing. Judge petition for the a Chief religions, principles forbade Wright the of which Judge and Circuit vote Chambers rehearing chargeable deny petition .by abortions, a for a it the would be Judge Duniway panel. the votes Circuit Re- Establishment of violation the No rehearing grant by panel, and a the ligion Clause of the First Amendment. dissenting opinion. files a aspect problem presented This length opinions separate the court in active members of All Verner, three Justices in su- suggestion Sherbert v. service considered the pra. majority rehearing banc, in a of a Madden, Judge, designation. Judge The on Feb- Honorable J. Warren Madden died Claims, sitting ruary 17, United States Court of Loving rehearing movement); v. Cir- interstate Vir- a bane. votes ginia, 1967, Ely, 1, 1817, Browning, Duniway, Judges U.S. 87 S.Ct. cuit 1010, grant a and Korematsu v. United L.Ed.2d Hufstedler and Goodwin vote 193, States, 1944,

rehearing 323 U.S. 65 S.Ct. in banc. (classification 89 L.Ed. 194 based Judge concurs Hufstedler Circuit race); Inn, Kirby, Sail’er Inc. dissenting Judge Duniway’s Circuit Cal.Rptr. 17-18, Cal.3d opinion. (classification 485 P.2d 539-540 rehearing petition is denied. The a sex). think, however, based on I that suggestion rehearing in of a banc eventually Supreme Court will so rejected. Reed, may, hold. that as su- Be it go pra, purport far, does not that Judge (dissent- but the criterion it DUNIWAY, Circuit that does estab- regu- requires ing). lish we that hold that question I lation here in can invalid. panel I I dissent. think that relationship find no rational between the rehearing. grant a member As should a regulation objective legitimate panel case, I that first heard that it can be said to achieve. to seek Judge opinion. concurred Madden’s enough say there are that rehearing It is not However, petition for physical men and between differences Reed, decision Reed women, are not men women that L.Ed.2d is, Rather, question fungible. does persuade rehearing me should the dif- take account judgment appealed granted, and the from way? Nor is ferences a rational reversed. ' enough say only can be- women Reed, supra, In Reed v. a unanimous therefore and that come Justice, opinion Court in an the Chief differently to treat is rational giving prefer- held that state statute physical from other disabilities. all ence to males admin- over females only to which disabilities There are equal istration of estates violates subject, just there are females protection clause Fourteenth subject. only men are some to which doing, In the Court held so Amendment. example, no woman can suffer For compet- difference-in sex enlargement “undiagosed or mass ing applicants for administra- letters of epiditymis,” which under testicle relationship tion bore “rational Reg. m(2), Army 40-501, 2-14 ff objective sought .to ad- state qualifies a man for service. (92 254.) princi- vanced.” p. general in view of obli- ple applicable here of the Reed decision is gation estab- alike to treat sexes which, kind because federal action Reed, supra, lished in state, done would violate unique special rational basis equal protection of Fourteenth clause pregnancy in the treatment of embodied (cid:127) Amendment, due is violation of the regulation. Indeed, I can find none. process clause of Amendment. the Fifth quite ir- seems to me be Bolling Sharpe, 347 U.S. rational. 98 L.Ed. 884. assumptions. yet One not I start with certain is clear whether classifica- government legitimate upon “suspect,” has a tion based sex is that is only upon and welfare of in the therefore can be interest health sustained showing by government pregnant unborn chil- women and their that a com- general, particular pelling of dren in interest classification makes the employees. necessary. Shapiro federal Thompson, those women who are Cf. (includ- government 1322, 22 A second 394 U.S. gov- ing military (classification especially of L.Ed.2d branch based legitimate length affecting ernment) interest right of also has of residence as Force, maintaining effective maintaining forces. effective any personnel. Is there evidence that any that could If other interest there be detectably pregnant able officers less promul- are as the basis for be advanced non-preg- perform than their duties gating Regulation 36-12, I am aware employees similar female nant jobs? it. pose I because Reg- (a) I consider subsection first reg- criterion that the sole among others, creates, ulation 36-12. It medically detected ulation establishes is following (1) preg- classifications: pregnancy. pregnancy de- whose One non-pregnant versus nant female officers days eight different- tected at is treated officers; (2) pregnant female female ly non-pregnant female from all other non-pregnant female em- officers versus inquiry, employees. apppropiaté officers; ployees (3) de- who are not therefore, or not women is whether pregnancy phys- all other tectable versus stage pregnancy any detectable may or ical conditions that can endure perform measurably their less able to for not more than nine months non-pregnant em- women tasks than ployees. Again, persons male or female Do officers. any I am unaware any such re- classifications have rational empirical support that affirma- data that lationship to the or welfare health tive. pregnant officer her unborn female child, who both, female separate I It is immaterial whether a class? eight may say, pregnant, be every gov- months can find female none. Even non-pregnant fe- employee less to work than a able were included ernment class, it, equally whether It is immaterial it could not stand. To sustain male. pregnant to work able female is there would be some less evidence regula- employment under combat conditions. that continued fe- of such criteria; it to- employees male tion does not use detrimental these be tally disregards their health. I them. am aware no such evi- contrary, dence. On centuries significance especial Of constitutional experience reality human attest preg- is the of detectable classification pregnant throughout women work tempo- nancy any kind of versus other pregnancies, their that work disability.” rary “physical fact performed fields, factories, mills, pregnancy mandates alone detectable cleaning offices, stores or or in homes discharge. physical temporary No other tending house, cooking, and their hus- mandatory dis- condition results' bands and their other children. Of charge. obviously 'There a difference course, pregnant not all women work and tempo- between and all other pregnant at least some women who work rary physical But under conditions. problems. have health But neither the Reed, supra, a classification based paid fact work nor the fact that one is un- that difference is not constitutional any necessary relationship for work has rational the difference some less bears infant maternal and health. governmental interest relation particular it is No doubt true any there evidence that served. Is work woman ability nancy to func- has some effect on perform may called on to affect her tion any is different as an officer that So, too, during health. pregnancy time temporary physical condition? when she called example, For to be- reason perform it have such effect. But a who suf- lieve that officer has female considerations not these do subsec- save leg is able fered fractured better (a). tion That subsection no ac- takes perform job officer than a female her them; count of cannot it be sustained eight days pregnant? for- who is the basis criteria that fit. it does not gets her mer leave retains medical discharged. commission; Similarly, I can find the latter no rational re- is nothing Why? rational, ir- lationship is (a) If this between subsection government, through the interest of the rational ! employees say, other federal all to as does female no answer at It is government person- “other who have opinion, babies. the court’s disabled and [be] . . . nel fungible. Obviously the sexes are not have would useless. Those events made however, fact, That does not show that Under sub- of war.” been the fortunes persons between the difference completely (a) immaterial is section has “a each of above classifications in com- officer is whether the fair and substantial ob- relation completely imma- It is or not. also bat ject legislation” {Reed, supra). “disability” any when how or other terial compelling inter- What and is the where who her An officer fractures occurred. government est is necessar- mandatory skiing leg is ily Why ? served these classifications leg discharge any than whose one more should infant female officer whose is Moreover, un- combat. fractured is adopted (Captain her commission lose (a) event that occurs der subsection situation), Struck’s and male officer imma- is after detection adopted keep Why whose his? infant discharged “with The officer terial. a female her should officer who aborts delay.” practical She is

the least keep commission, child her and a female dischargeable if miscarries three less officer her who delivers child forfeit her days later. Why of- commission? should a female career, baby ficer who forfeit that subsection has The conclusion follows every employee other regulation female federal (a) unconstitutional keep ? I can- she wishes to do so hers on its face. questions, not find an these answer to (d). (b) Here I subsection turn and I therefore that subsection conclude proof that a is mandated (b) (d) likewise unconstitutional on given liv- officer birth to a female its face. ing No child while she was an officer. grant To here relief is not transfer appear governmental here interests judges running army. task discussion than mentioned those (See Willoughby, Orloff (a). of subsection 83, 93, 842). 97 L.Ed. The Armed the Con- Forces are not above list is a non-exclusive of classi- Here stitution, but to it. If are subordinate (d): (b) created fications subsection they regulations adopt that violate (1) commissioned who are moth- officers Constitution, duty plain who ers commissioned officers versus say courts I so. cannot believe that (2) fathers; commissioned female colleagues any my would hesitate for give up officers who their children a moment strike down adoption of- versus commissioned male stating person that no of African ances- give up who their ficers children try commissioned, stating can be or one (3) adoption; commissioned female of- holding persons that all such com- now ficers been volun- whose infants have discharged. princi- missions shall In tarily involuntarily aborted versus ple, this case is no different. commissioned female deliv- officers who grant rehearing infants; I (4) reverse ered commissioned fe- their judgment. male officers who babies versus

Case Details

Case Name: Captain Susan R. STRUCK, Plaintiff-Appellant, v. SECRETARY OF DEFENSE Et Al., Defendants-Appellees

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 4, 1972

Citation: 460 F.2d 1372

Docket Number: 71-1150

Court Abbreviation: 9th Cir.