APPEAL FROM THE FINAL ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 78-691)
Before Weis and Garth, Circuit Judges, and Miller,*fn* Judge.
This appeal requires us to decide whether an action brought by a female enlistee who was discharged from the New Jersey National Guard pursuant to a regulation forbidding the enlistment of single parents with minor, dependent children, presents a justiciable claim. A secondary question is presented whether summary judgment could properly be granted if we were to hold Ms. Dillard's claim to be justiciable. Contrary to the district court's determination, we hold that Dillard's constitutional challenge is justiciable. We also hold that summary judgment on the present record was improperly granted. Accordingly, we reverse.
Frances Dillard enlisted in the District of Columbia Army National Guard in April, 1977. At that time, Dillard allegedly was instructed by a recruiter not to disclose on her application that she, an unmarried woman, had a minor, dependent child. In a later application Dillard stated that she had one dependent, but did not specify that the dependent was a minor child.
On processing, Dillard's file revealed that she had enlisted in the Guard in violation of an Army regulation. Army Regulation, Rule F, Table 2-1 ("AR 601-210"). This regulation provides in relevant 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.
Dillard was therefore honorably discharged on December 13, 1977, as an "erroneous" enlistee.
For a period of time in 1972 to 1973, prior to Dillard's enlistment, single parents with no more than one minor dependent had been allowed to enlist in the Guard. For a year following this period, such parents could still enlist, but needed an approved waiver. However, on July 15, 1974, enlistment eligibility for single parents with minor dependents was ended. The Army's Director of Military Personnel Management, General Williams, explained that single parent soldiers presented the Army with many problems particularly in regard to extra-duty requirements, assignment flexibility and morale because of their parental responsibilities.*fn1
Dillard sued Harold Brown, Secretary of Defense of the United States, Major General Wilfred Menard Jr., Adjutant General of the New Jersey Army National Guard, Major General Laverne Weber, Adjutant General of the Army National Guard of the United States, the United States, and the State of New Jersey. She sought an injunction staying the effectiveness of her discharge from the National Guard and compensatory damages to the extent that she was not made whole by injunctive relief. Dillard claimed that AR 601-210 "discriminates against women on its face and upon information and belief is applied so as to discriminate against women", App. at 6, and that it infringed her constitutional right of privacy.
The district court granted summary judgment in a memorandum opinion and order dated January 10, 1979 against Dillard and in favor of all defendants except Major General Menard and the State of New Jersey. It first stated that since Dillard had already benefited from being classified as an "erroneous" rather than a "fraudulent" enlistee, thereby obtaining an honorable discharge and avoiding prosecution under 18 U.S.C. § 1001 ,*fn2 she could not be heard to complain that the discharge violated her constitutional rights. The district court then found that:
the question sought to be pressed (is) nonjusticiable. The composition of the armed services is a matter within the discretion of the military. Gilligan v. Morgan, 413 U.S. 1 (93 S. Ct. 2440, 37 L. Ed. 2d 407) (1973). "(T)he complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army." Orloff v. Willoughby, 345 U.S. 83 (73 S. Ct. 534, 97 L. Ed. 842) (1953). The Army is the best judge of what qualifications are needed in military personnel. Plaintiff has no right to enter the military at all. The Army has decided, for whatever reason, that persons with care of minor children should not be members of the National Guard. The court will not now review that decision.
Dillard v. Brown, Civ. 78-691 (D.N.J. January 10, 1979). The district court's holding that Dillard's claim was non-justiciable provided the main basis for its summary judgment order.
Dillard appealed from this order, but her appeal was dismissed by this court on November 27, 1979 for lack of appellate jurisdiction, in as much as the judgment entered had not disposed of all claims against all the defendants. Thereafter, in an order dated June 18, 1980, the district court dismissed Dillard's complaint against the remaining defendants. By so doing the district court's orders became final and hence appealable. Dillard filed a timely appeal from the June, 1980 order and the earlier 1979 order of the district court, both of which, as we have noted, became final on entry of the June 18, 1980 order. On appeal Dillard's claims are asserted only against the United States, and not against New Jersey.*fn3
The government first argues that Dillard's claims of sex discrimination and privacy are entirely non-justifiable. It is not disputed that this court has subject matter jurisdiction to hear Dillard's claims. Her claims arise under the Constitution of the United States, and jurisdiction exists under 28 U.S.C. § 1331. In deciding whether her claims are justifiable, we must determine whether the separation of powers provided by the Constitution bar our review or whether the claims "presented and the relief sought are of the ...