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LEWIS v. UNITED STATES ARMY

September 27, 1988

VIVIAN LEWIS
v.
UNITED STATES ARMY, et al.



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE

 This action involves a challenge to the enlistment policy of the United States Army (Army) and United States Army National Guard (USANG) that permits men who have not graduated from high school but who have obtained a General Educational Development (GED) certificate to enlist but prohibits women from so doing.

 I have before me the federal defendant's (the government) motion for judgment on the pleadings. In accord with my pretrial order and Fed.R.Civ.P. 12(b), I will treat the motion as one for summary judgment under Fed. R. Civ. P. 56. For the reasons set forth below, the motion is GRANTED.

 I. Background

 Under a policy promulgated by the Secretary of the Army, women soldiers are excluded from units or positions that would require participation in combat. Army Reg. 611-201, para. 4-1; Army National Guard Reg. 600-200, para. 2-12a. As a result of this combat exclusion policy, a much greater number of men must be enlisted than women. *fn1" On the basis of empirical studies, the Army has found that high school diploma graduates (HSDG) are more likely to complete their initial term of enlistment and to reenlist than GED holders and non-HSDGs. Defendants' Memorandum, App. A. Because sufficient HSDG males cannot be recruited to meet annual Army and USANG requirements, a limited number of male GED holders and non-HSDG applicants are permitted to enlist. *fn2" On the other hand, because the Army and USANG have been able to obtain enough woman accessions who are high school graduates, they have not permitted female GED holders or non-HGDGs to enlist.

 Plaintiff Lewis has a GED certificate and has earned some college credits. In July 1986 Ms. Lewis sought to enlist in the Army and USANG. Although female GED holders are not permitted to enlist, female GED holders with fifteen hours of college credit are permitted to enlist. Army Reg. 601-210, Table 2-1, Rule D; Army National Guard Reg. 600-200, Table 2-1, Rule D, as amended by Army National Guard Accession Criteria for Fiscal 1987. When it was determined that Ms. Lewis had only twelve hours of college credit, she was told that she was not eligible for enlistment in the Army. Defendants' Memorandum, App. D. She also was "discharged" from the USANG for the same reason. *fn3"

  Ms. Lewis commenced this action on May 8, 1987. As amended, the complaint names as defendants the Secretary of Defense of the United States, the Chief of the Army National Guard, and the United States of America. Ms. Lewis alleges that the aforementioned enlistment policy *fn4" discriminates against her and women in general, and that it denies her equal protection of the law and due process. Remedies sought include damages, a declaration that the enlistment regulation is unconstitutional on its face or in its application, and an order allowing plaintiff to enlist in the Army or USANG.

 II. Standard for Summary Judgment

 A trial court may enter summary judgment if, after a review of all evidentiary material in the record, there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. Bank of America Nat. Trust and Sav. Ass'n v. Hotel Rittenhouse Associates, 595 F. Supp. 800 (E.D. Pa. 1984). Where no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the non-moving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3rd Cir.), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981).

 The moving party has the initial burden of identifying evidence which it believes shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). The moving party's burden may be discharged by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions or answers to interrogatories showing there is a genuine issue for trial. Celotex, 477 U.S. at 324. Moreover, when the nonmoving party bears the burden of proof, it must "'make a showing sufficient to establish [every] element essential to that party's case.'" Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting Celotex, 477 U.S. at 322).

 III. The Parties' Arguments

 Ms. Lewis argues that the enlistment policy of the Army and USANG is unconstitutional on its face and as applied to her and women in general. As a policy that distinguishes between men and women solely on the basis of gender, Ms. Lewis contends that the government must demonstrate that the policy is substantially related to the achievement of an important government objective. She further asserts that the government has failed to show that the exclusion of women with GEDs substantially furthers the Army's recruiting goals, and argues that a question still remains regarding this issue.

 The government, on the other hand, argues that the enlistment policy is reasonable and necessary for the recruitment of adequate numbers of the highest quality soldiers. First, it notes that HSDGs are favored because they have lower attrition rates and higher retention rates than non-HSDGs. Because women are excluded from combat positions, more men than women are needed in the Army. To obtain a sufficient number of men, the Army permits a limited number of non-HSDGs to enlist. Enough female HSDGs can be recruited to fulfill the Army's needs, however, so women enlistees are required to be HSDGs. Finally, although the ...


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