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GUTIERREZ v. LAIRD

July 28, 1972

Mary S. GUTIERREZ, Plaintiff,
v.
Melvin L. LAIRD et al., Defendants


John Lewis Smith, Jr., District Judge.


The opinion of the court was delivered by: SMITH, JR.

JOHN LEWIS SMITH, Jr., District Judge.

 Plaintiff Mary Gutierrez is a first lieutenant in the United States Air Force. She was involuntarily discharged pursuant to Air Force Regulation 36-12(40) [hereinafter sometimes referred to as "the pregnancy rule"] and her request for a waiver was finally denied by the Secretary of the Air Force on June 10, 1971. In accord with Air Force Regulation 36-12(41) [hereinafter referred to as "the hearing rule"], she was denied a Disposition Board hearing. On August 7, 1971, the United States District Court for the District of Columbia enjoined Air Force orders compelling plaintiff's discharge and return to the United States from her overseas station in Incirlik, Turkey. The government appeal from the preliminary injunction was dismissed by the United States Court of Appeals on November 2, 1971. Plaintiff, who is currently serving in Wiesbaden, Germany, asks this Court to permanently enjoin her discharge from the Air Force and to declare AFR 36-12(40), and AFR 36-12(41) unconstitutional.

 The case is here on cross motions for summary judgment. There are no material facts in dispute. The only questions before this Court are the constitutionality of the pregnancy rule and the hearing rule.

 The Court's review of this case is tempered by the fact that "Judges are not given the task of running the Army." Orloff v. Willoughby, 345 U.S. 83, at 93-94, 73 S. Ct. 534, at 540, 97 L. Ed. 842 (1953). The Supreme Court has cautioned against "[The needless] friction that will result if civilian courts throughout the land are obliged to review comparable decisions of military commanders in the first instance." Noyd v. Bond, 395 U.S. 683, 694-696, 89 S. Ct. 1876, 1883, 23 L. Ed. 2d 631 (1969). In Levy v. Corcoran, 128 U.S. Ap.D.C. 388, 389 F.2d 929, cert. den. 389 U.S. 960, 88 S. Ct. 337, 19 L. Ed. 2d 369 (1967), this circuit recognized that the military is a specialized community in which the balance between freedom and discipline differs from that of civilian society. Only when the denial of freedoms is arbitrary, capricious, and irrational should the federal courts intervene in military matters.

 Plaintiff argues that the denial of a Disposition Board hearing to officers with less than three years service deprives her of procedural due process and equal protection of the laws. The underlying premise of this claim is that plaintiff's career as an Air Force officer is a right which cannot be denied without due process of law.

 Plaintiff cites Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961) for the proposition that when one's right to practice a chosen profession is at stake, it must be balanced with the governmental interest in summary adjudication. Yet in that case, the Supreme Court recognized ". . . where it has been possible to characterize that private interest . . . as a mere privilege subject to the executive's plenary power, it has traditionally been held that notice and a hearing are not constitutionally required." It has always been recognized that the commissioning of officers in the armed forces is a matter of Presidential discretion over which the courts have no control. Orloff v. Willoughby, supra, 345 U.S. at 90, 73 S. Ct. 534. No one can seriously dispute the fact that service as an officer in the armed forces of the United States is a privilege and not a right. Even that privilege is accorded the protections of due process when an officer faces a dishonorable discharge -- and its attendant stigma -- despite the administrative inconvenience of providing a hearing in every case. However, the same administrative burden is not warranted by the granting of an honorable discharge on any one of many grounds. By Act of Congress, plaintiff's commission as a probationary reserve officer may be withdrawn at "the pleasure of the President" without a due process hearing (10 U.S.C. §§ 1162, 1163). The relevant provisions of Title 10 of the U.S. Code read as follows:

 
Sec. 1162
 
(a) Subject to other provisions of this title, reserve commissioned officers may be discharged at the pleasure of the President . . .

 and

 
Sec. 1163
 
(a) An officer of a reserve component who has at least three years of service as a commissioned officer may not be separated from that component without his consent except under an approved recommendation of a board of officers convened by an authority designated by the Secretary concerned, or by the approved sentence of a court martial.

 The cases cited by plaintiff proscribing summary dismissal from public employment without the due process requirements of a hearing or inquiry all apply to civilian employees. Connell v. Higginbotham, 403 U.S. 207, 91 S. Ct. 1772, 29 L. Ed. 2d 418 (1971) [school teachers]; Birnbaum v. Trussell, 371 F.2d 672 (2nd Cir., 1966 [doctor at public hospital]; Hunter v. City of Ann Arbor, 325 F. Supp. 847 (E.D. Mich., 1971) [city administrative employee]. For reasons outlined above, the same due process protections do not extend to the privileged status of an Air Force officer.

 Plaintiff further argues that the hearing rule violates her Fifth Amendment right to equal protection of the laws since the classifications "probationary" and "non-probationary" bear no reasonable relation to the purposes behind the rule. The policy of affording officers who have completed the probationary period a certain amount of career protection not available to probationary officers is hardly irrational. The Air Force may well recognize a substantially greater commitment to the service on the part of a third year officer. In any event, there has been no showing by the plaintiff that the distinction between probationary and non-probationary officers is not reasonably ...


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