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OWENS v. BROWN

July 27, 1978

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



The opinion of the court was delivered by: SIRICA

ORDER GRANTING CLASS CERTIFICATION

The only serious objection to certifying this case as a (23)b(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 In an effort to illustrate a difference in opinion in this respect, defendants point only to the results of an unpublished and admittedly inconclusive survey that was taken by defendants' employees of 81 female members of the Navy.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).

 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). *fn1" 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. *fn2" 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. *fn3" 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 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 of the plaintiffs named in this action. Plaintiff Yona Owens, for example, serves in the Navy as an Interior Communications Electrician. Her position involves the repair and maintenance of sophisticated electrical equipment that is primarily used for navigation and found aboard Navy ships. To develop and utilize her skills more fully, plaintiff Owens has requested that she be assigned to a shipboard position. However, because of section 6015, the Navy has refused to even consider her for duty at sea irrespective of her personal qualifications. The Navy has similarly refused to consider plaintiff Natoka Peden, a photographer and diver, for assignment as a support diver because the diving unit with which she wishes to work is deployed from a ship. This, too, is without regard to plaintiff Peden's individual abilities.

 Plaintiff Kathleen Byerly is a naval officer with approximately twelve years of experience. Ranked as a lieutenant commander, and recognized by the Navy as a distinguished officer, she holds the position of Aide and Flag Secretary to the Commander Training Command in the Pacific Fleet. This assignment entails the performance of administrative and liaison functions between the commanding admiral, his staff and his ten subordinate commands. Plaintiff Byerly is the first woman to hold a position of this type. But unlike male officers with comparable backgrounds and experience, she is precluded by section 6015's absolute prohibition from advancing to the prized position of shipboard command. This is so solely because the command of a vessel necessarily involves an assignment at sea and because plaintiff Byerly is a female.

 Like plaintiff Byerly, plaintiff Joellen Drag serves as a naval officer. As part of an experimental program, the Navy recruited her to become a member of the first group of women to be trained as Navy pilots. After qualifying as a helicopter pilot, plaintiff Drag was assigned to a support squadron whose primary function involves servicing vessels at sea with supplies. This duty typically requires a temporary assignment to a supply ship and regular flights to and from cruising vessels. Yet because of section 6015, plaintiff Drag is barred from this kind of duty, while equally qualified males are not. As her commanding officer noted to the Secretary of the Navy, plaintiff Drag "is excluded from virtually all operational commitments routinely undertaken by her contemporaries" despite her "demonstrated outstanding performance in all aspects of her assigned duties." *fn4" In addition, this same limitation on assignments also impairs plaintiff's ability to accumulate the flight time she needs to advance to higher ratings even as a Shore -based aviation specialist. The reason is that helicopter pilots are required as a condition to advancement to qualify as aircraft commanders with 300 hours of flight time, a goal that is made especially difficult for women because of the scarcity of flight opportunities that are not precluded by the broad sweep of the statute.

 The obstacles to career development and national service faced by these women are by no means unprecedented. Traditionally, service in the Navy has been a masculine calling and until World War II the only females allowed to serve as members of the Navy were employed in the traditional areas of nursing and office work. *fn5" Constraints on female service in the naval forces were somewhat relaxed, however, in 1948 with the enactment of the Women's Armed Services Integration Act. *fn6" This piece of legislation signified a major step in the direction of expanding the range of career opportunities available to women interested in pursuing a career in the Navy and towards equalizing the distribution of privileges and benefits that accompany naval service. *fn7" But it also contained fundamental limitations. *fn8" One of the most prominent of these restrictions is the absolute bar against shipboard duty currently reflected in 10 U.S.C. § 6015 (1970).

  Many of the limitations brought into effect by the Integration Act of 1948 were removed by amendments passed in 1967. *fn9" These changes were for the most part directed at eliminating general ceilings on the level of female recruitment and specific restrictions on the ability of women to hold permanent positions in some of the Navy's higher grades. *fn10" The 1967 amendments did not, however, modify the scope of section 6015's blanket prohibition. Far from doing that, they heightened the adverse effect of the constraint by allowing an increasing number of female members to enter the Navy and advance upward through the ranks, while at the same time denying them the career opportunities that comprise the primary mission of the naval forces.

 The decision in 1970 to end the draft added a significant impetus for military authorities to reevaluate the utilization of women in the armed services. *fn11" This reevaluation was necessitated because of the serious and evenly debated question concerning the ability of the military to recruit sufficient numbers of male volunteers without an unacceptable increase in costs and without compromising the quality of new recruits. *fn12" The effort was also influenced by congressional approval of an Equal Rights provision that did not contain an exception for military affairs. *fn13" An exception of this kind was offered during the debate on the Equal Rights Amendment, but was defeated by a wide margin. *fn14" Finally, the reevaluation of the issue of women in the military was occasioned by the enactment of legislation *fn15" in 1975 that allowed the admission of women to the military academies, the primary source of combat officers, and by the introduction of several bills *fn16" to prohibit the exclusion of women from combat duty.

 As part of this review process, a number of studies were undertaken to look into the relationship between women in the military and military needs and effectiveness. *fn17" These reports recognize that the projected decline in the number of eligible males makes an increase in the number of women recruits inevitable. *fn18" In addition, once female enlistments are significantly increased, considerations of personnel management and flexibility require a corresponding expansion in female utilization. *fn19" This is because, as the Deputy Chief of Naval Personnel recently explained, "If you build into your structure ...


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