Schlesinger v. Ballard – Oral Argument – October 15, 1974

Media for Schlesinger v. Ballard

Audio Transcription for Opinion Announcement – January 15, 1975 in Schlesinger v. Ballard

del

Warren E. Burger:

We will hear arguments next 73-776 in Schlesinger against Ballard.

Mrs. Shapiro you may precede by whenever you are ready.

Harriet S. Shapiro:

Mr. Chief Justice and may it please the Court.

This case is here on direct appeal by the government from the judgment of a three-judge district court in the Southern District of California.

The court enjoined the Navy’s discharge of Lieutenant Ballard and declared the statute requiring his discharge unconstitutional.

Lieutenant Ballard claims and the court below found that the Navy’s basic separation statute discriminates against men in violation of the Fifth Amendment.

That statute requires Lieutenant Ballard’s discharge because he was twice passed over for promotion.

Although he had less than 10 full years of commissioned service.

A special statute applicable to certain woman Lieutenants provides for their discharge after 13 years of service if they’re not selected for promotion.

This three year difference is the basis of the claim of discrimination.

I think it’s important to point out in the first that the different treatment doesn’t turn simply on sex.

In the course, where woman and man fill substantially the same types of jobs, for instance, the judge advocate general core, the medical core and the dental core all officers are subject to the basic statute requiring separation if they are twice passed over for promotion.

Similarly nurses men and women are subject to a 13 years statute similar to the one that applies to the line lieutenant.

The special 13 years statute applies to women line lieutenants and certain staff women.

These women are competing for jobs against men line lieutenants but the statute provides that women may not serve on naval vessels except hospital ships and transport ships.

Therefore, the jobs that the women are subject to a special statute made fill are significantly different than the jobs that are — many of the jobs that are filled by the men line lieutenants.

Byron R. White:

I take it as we judge this case, assuming the validity of that statutory restriction?

Harriet S. Shapiro:

Yes, I believe that is not basically in this case.

Both the special 13 years statute and the basic statute providing for a separation after being twice passed over reflect the special military philosophy.

In civilian life, if you are reasonably good at your job you can normally expect to keep it even if you’re not promoted but in the military that sort of competence is not enough.

In this instead, in the military every officer is periodically compared with his peers.

Those best qualified are promoted, the others are separated.

This is a very tough system but it was developed after World War 2 to meet the special military need to have the best possible officers available for command.

Byron R. White:

Mrs. Shapiro, are there some male officers ineligible for sea duty?

Harriet S. Shapiro:

No.

Byron R. White:

Ineligible to do the duty —

Harriet S. Shapiro:

There are limited service officers, limited duty officers who are not eligible for command at sea.

Byron R. White:

So they’re disadvantaged by the existing system then?

Harriet S. Shapiro:

Not necessarily, they can serve on board ships but they can’t command ships.

On the other hand woman can’t serve on board ships at all except possibility of transport ships, yes.

Byron R. White:

Would you have felt any differently if the court below had declared 6401 unconstitutional instead of the general statute?

Harriet S. Shapiro:

As a —

Byron R. White:

That should be here today?

Harriet S. Shapiro:

As a practical matter I’m not sure that the Navy would have felt nearly as upset about it for one thing, the Navy has proposed to Congress that the special 6401 statute is no longer necessary in light of current conditions.

Byron R. White:

Is that the younger of the two statutes the most recent or is it?

Harriet S. Shapiro:

Yes, not by very much but slightly.

Lieutenant Ballard claims that he is not challenging these basic up or out procedures but in attacking the navy’s authority to discharge him after he has been passed over twice, he is attacking the procedures since prompt separation is important to the effective functioning of the procedures.

And this is no less true because a different rule applies to a particular small group of officers whose special circumstances justify this different treatment.

Thurgood Marshall:

Why isn’t the up and out rule good for the women?

Harriet S. Shapiro:

Well the up or out rule does apply to certain women and it applies, the up or out right rule does apply to women the only difference is that out doesn’t occur after two pass over it occurs after 13 years.

It’s basically the same situation —

Thurgood Marshall:

Why isn’t out rule good for women as you said?

Harriet S. Shapiro:

Well the out rule applies to women, it just doesn’t apply as rapidly —

Thurgood Marshall:

Well it doesn’t apply to the women.

Harriet S. Shapiro:

Pardon?

Thurgood Marshall:

Why do you have to say this is a very good rule for the men?

But why isn’t it “s a good rule for woman”?

Harriet S. Shapiro:

Well, there are several reasons, one of the reasons is that the women are affected by it are relative small group, they are at a disadvantage in competing with men in the group for sea jobs.

Thurgood Marshall:

And that disadvantage is brought about by the navy, the same group that brought up or out rule?

Harriet S. Shapiro:

Well, it’s brought about by the statute which prohibits them from serving on ships, on combat ships.

Thurgood Marshall:

The same thing.

You can’t separate the navy from — Congress controls the navy.

Harriet S. Shapiro:

Well that’s true but the — let’s say I don’t believe that the statute prohibiting women from serving on combat ships is really in this case.

Thurgood Marshall:

Why couldn’t you put that out, why is this up or out rule on women?

Harriet S. Shapiro:

Well, you could.

Thurgood Marshall:

Congress doesn’t prohibit that.

Harriet S. Shapiro:

Yeah, well Congress says that women shall not be discharged until after 13 years of service, if they’re not on a promotion list.

Thurgood Marshall:

Well, in order to conform the Congress, why didn’t you say that “Its the navy people who are sent to sea duty shall up or out”?

Harriet S. Shapiro:

You mean why doesn’t the navy say that?

Thurgood Marshall:

Instead of making it male to female.

Harriet S. Shapiro:

The Congress has said that the —

Thurgood Marshall:

I don’t think — couldn’t the navy say that all people subject to sea duty shall either qualify twice or get out–

Warren E. Burger:

They always have to accept transport —

Harriet S. Shapiro:

I don’t believe the navy could say that in light of the current statutes, Congress could say that.

Thurgood Marshall:

You don’t think the navy could?

Harriet S. Shapiro:

No.

Thurgood Marshall:

Why not?

Harriet S. Shapiro:

Well because Section 63 A —

Thurgood Marshall:

Well the Navy has said it, so far the women are concerned.

I think I’m arguing just as they get out of the point.

Harriet S. Shapiro:

The problem in the case Mr. Justice Marshall is that 6382 A provides that; Male officers and women – well, it actually provides that all officers except women appointed under Section 5590.

Thurgood Marshall:

Right.

Harriet S. Shapiro:

— must be separated after they have twice failed of selection.

Thurgood Marshall:

There’s nothing the navy could do to get around that that’s the one point I am talking about.

Harriet S. Shapiro:

No that’s, that just way —

Thurgood Marshall:

So the only way that we correct it is to go against the statute itself?

Harriet S. Shapiro:

That’s correct.

Thurgood Marshall:

That’s what I was trying to explain —

Harriet S. Shapiro:

Yes, exactly.

The basic procedures are those designed by congress to assure the selection of the best qualified officers for military command.

This is exactly the kind of congressional choice that is entitled to great difference since it is so closely related to the navy’s ability to fight effectively.

The basic rule requiring the separation of officers who’ve been twice passed over for promotion is not as the court below believed basically a fiscal or administrative provision.

Instead, it’s a means of assuring a high quality of the pool from which eligible officers are chosen.

All officers eligible for promotion are annually evaluated against their peers.

The best are promoted but the quality of the pool from which future officers must be selected must also be protected.

Therefore, those officers who have served long enough to show that they are not qualified for promotion must be witted out.

In that way, there’s additional space in the pool for new officers to enter.

They replace not only the best but also the least qualified.

In other words, the effect of the two passover procedure or the prompt separation of those not selected for promotion is that you don’t just skim the cream off the eligible pool but you also take off the bottom layer so that the quality of the pool remains constant.

Congress has defined a point at which this witting out —

William J. Brennan, Jr.:

What percentage of lieutenants that are passed over twice these days, a lot of lieutenants?

Harriet S. Shapiro:

Well, approximately 15% to 30%, the promotion rate is about 85% — 70% to 85%.

William J. Brennan, Jr.:

To lieutenant commander.

Harriet S. Shapiro:

Pardon?

William J. Brennan, Jr.:

To lieutenant commander.

Harriet S. Shapiro:

But yeah, this is from lieutenant to lieutenant commander.

The point of which the witting occurs is defined in two different ways.

The basic provision applies to most officers including unrestricted line officers and to men and women in most of this stay of course.

It requires separation after the officer has been twice passed over.

That’s not a statute that operates as the district court believed on the turn of the calendar.

The determination of women officers has been passed over involves the exercise a very substantial military judgment.

Since being passed over does not mean simply that an officer was eligible for promotion but was not selected.

Instead it means that he served long enough so that the fact that he is not selected should be counted against him.

The determination of when that point occurs is a very complex one.

It requires balancing the very needs of the service for officers.

The manpower needs from year to year and the desirability of having a large enough group from which to select the officers against the need to treat the people equally from year to year.

There really are two important points in this procedure as the need for combat officers increases in national emergencies, the length of service before promotion decreases.

That length is currently about 9 years as opposed to peacetime goal of 12 years.

Secondly, the increased need for officers places a heaver drain on the pool of officers eligible for promotion and makes it increasingly important to assure the high quality of the pool.

One way of doing that is by the prompt separation of those passed over, since the current promotion rate is 70% to 85% those who like Lieutenant Ballard are passed over twice are less qualified on 70% to 85% of their peers.

Their separation improves the quality of the pool by making spaces in the pool available to others who have not yet been evaluated.

The effect of the decision below is to delay the separation of these least qualified officers for about three years.

Since about 200 lieutenants subject to the basic rule are passed over for the second time each year.

The potential effect of the decision under current conditions would be that about 600 such officers would have to be retained in the pool of eligible lieutenants.

That means again that about 1900 officers in the lower grades who’ve not been evaluated would have to be separated.

Of course, if the conditions change so that the length, the normal length of service is shorter or that the promotion rates drop then the number of officers in the deleterious effect on the pool would be increased.

In any event the pool of eligible officers is permanently degraded and the caliber of officers at all higher levels inevitably suffers.

The 13 year rule which is as I have noted, applicable to certain woman officers was intended to provide for them lengths of service, roughly equivalent to those anticipated for the vast majority of officers under peacetime conditions.

Potter Stewart:

When you’re talking about officers, you’re talking about lieutenants or ?

Harriet S. Shapiro:

Lieutenants and yes, I’m sorry.

Potter Stewart:

Lieutenants.

Harriet S. Shapiro:

I’m talking about lieutenants, yes.

Potter Stewart:

Navy lieutenant?

Harriet S. Shapiro:

Navy lieutenant that’s right.

Potter Stewart:

Incidentally is the ratio of female lieutenants to female lieutenant commanders about the same as male to male in both of the categories?

Harriet S. Shapiro:

There are less women lieutenant commanders.

Potter Stewart:

What about the ratio?

Harriet S. Shapiro:

The ratio is lower.

The 13 year rule does interfere with the operation of the basic system.

Since it requires the retention of a few officers who would other wise be separated.

But the effect is not as serious in the female line officer category as it would be if it were applied to all naval lieutenants now subject to the basic rule.

First, the absolute numbers involved are far smaller.

In 1972 the year in which Lieutenant Ballard was passed over for the second time 14 women officers were held over simply because of the special 13 year statute.

Potter Stewart:

Even though they had been passed over —

Harriet S. Shapiro:

Passed over twice, yes.

Potter Stewart:

Their promotion twice.

Harriet S. Shapiro:

Yes, that’s right.

And in comparison 238 male lieutenants were passed over for the second time except for a few of those who were retained because they were close to retirement or separated out.

Potter Stewart:

So that you say in peacetime, they too would have stayed on for almost 13 years?

Harriet S. Shapiro:

Yes.

Potter Stewart:

Well, that would have been the predicted average?

Harriet S. Shapiro:

That’s the normal peacetime.

Potter Stewart:

It was not the statutory about that and it was just the predicted average time.

Harriet S. Shapiro:

Well, a statute process that the normal length of service should be 12 years and this is the peacetime goal.

Potter Stewart:

Oh actually, is that the statute that has been suspended by the executive order?

Harriet S. Shapiro:

The eligibility statute has been suspended by the executive order.

Potter Stewart:

Does that have a relation to this process?

Harriet S. Shapiro:

Yes, yes.

Potter Stewart:

How could a lieutenant is so close to retiring?

Probably he would have been a mustang I guess.

Harriet S. Shapiro:

Well, as a matter of fact, Lieutenant Ballard, the real, I think the real reason of Lieutenant Ballard is so anxious to remain in service is because he was — did have a listed service.

Potter Stewart:

A listed service.

Harriet S. Shapiro:

Yeah.

Byron R. White:

Does the Army and the Air Force have similar differences in (Inaudible).

Harriet S. Shapiro:

No, they don’t.

On the other hand, their selection out procedures are somewhat different because both the Army and the Air Force operate on a two level system, that is that you are promoted in temporary grades and if you’re selected out in the temporary grade then you revert to the permanent grade and you’re not separated until you have been passed over in the permanent grade.

So that you — if Lieutenant Ballard were in the Army or the Air Force, he would still be in service, he would revert to his permanent grade rather than to his temporary grade.

There are justifications for permitting these female officers to serve a few years longer than their male counterparts who have been twice passed over.

First, the special 13 year rule permits the retention for a few years of women who would otherwise be separated.

It thus helps to improve the proportion of women officers in the Navy.

Since there are over 20 times as many male officers as female officers, this serves a reasonable legislative purpose.

Byron R. White:

(Inaudible) tension however to the subject of any difficult amendment, other than this, I mean in terms of quality?

Harriet S. Shapiro:

No, this at least, this is —

Byron R. White:

You just could pass it over —

Harriet S. Shapiro:

Yes, I’m not sure if that would be a wise policy.

Byron R. White:

Well, I take it that your goal is that all the navy’s goals but one could be accomplished by saying women are subject to same rule as men, namely out and if you pass over twice.

And the same one is that you want to increase the number of —

Harriet S. Shapiro:

No.

Well, as far as the Navy’s goals perhaps the other —

Byron R. White:

Well, you could solve, you can solve the fact that having an over supply of lieutenants by simply making those women and the men subject to same rule.

Harriet S. Shapiro:

Yeah.

That’s right, that would solve that problem but–

Byron R. White:

But that part of your argument all aside.

That still leaves the question of whether it’s just the — case is the different due to want of more women in the Navy.

Harriet S. Shapiro:

Well, the other justification relates to considerations of fairness to the woman involved.

They’ve — promotion rates for women have been significantly slower than for men and promotion opportunities more limited.

This was the case until certainly until 1967.

At that time many of the statutory restraints applicable to women were removed.

The Navy has since then speared up promotions for woman, and finally in 1972, the length of service before promotion of woman line lieutenants equal those of their male counterparts for the very first time.

Nevertheless, the records of the woman who are being retained in 1972 because of the 13 year provisions were made while the slower rates prevailed.

William H. Rehnquist:

Mrs. Shapiro, when the 13 year statute was first enacted was it at that time fairly close to the length of time that a man had to go to be passed over twice?

Harriet S. Shapiro:

The statute was designed to be equivalent to the peacetime goals for men.

The actual length of service for men at that time was about the same as it is now.

Byron R. White:

Why was the statute ever passed out?

Harriet S. Shapiro:

Well, that the Title 10 includes when it was caught upon in 1947, it included one section that was — permanent design, the permanent peacetime military provisions and then there are other sections that are temporary national emergency sections, the permanent provisions have never come into effect, they come into effect when there are no more reserves in the military.

Finally, the women subject to the 13 year provision still suffer a disadvantage in competition with the men for the available jobs in the line category.

About 40% of all the jobs in that category involve ship board duty and women by statute can’t fill these jobs.

More over, they compete for the jobs for which they are qualified with men and in that competition, they’re disadvantaged because their records reflect the lack of seaboard duty.

And the 13 year rule serves to counteract these disadvantages to some extent by giving the women somewhat more job security.

As a matter of policy, the navy has concluded that the 13 year rule for woman is no longer necessary since promotion rates are now equal.

And therefore, they have suggested to the Congress that the special in 6401 be eliminated as part of the overall revision of the military promotion and separation provisions which are currently before Congress.

Potter Stewart:

Is there any statutory limitation now on the promotions for the women in the navy, used to be back generation ago for example, (Inaudible) ways was a captain, he didn’t have the flag rank and that was a matter of statute.

Harriet S. Shapiro:

Until 1967, the highest rank that a woman could have I believe was captain.

Potter Stewart:

As a matter of statute?

Harriet S. Shapiro:

As a matter of statute.

Potter Stewart:

The highest rank to which a woman could achieve in the navy was captain.

Harriet S. Shapiro:

That’s no longer true.

Potter Stewart:

There are no limitations?

Harriet S. Shapiro:

No.

Potter Stewart:

There is no sex limitations?

Harriet S. Shapiro:

No, the only limitations.

Potter Stewart:

Limitations on the overall member of flag hoisters I guess.

Harriet S. Shapiro:

Yes, that’s right, and of course, there is this limitation on service.

William J. Brennan, Jr.:

Where stands this proposal or appeal of a 13 year statute.

Harriet S. Shapiro:

Hearings were held on it over the summer, it’s part of a overall provision, an overall revision of the entire military promotion and retirement provisions.

William J. Brennan, Jr.:

For all the services or just the Navy?

Harriet S. Shapiro:

All services.

Nevertheless, the difference in treatment of which Lieutenant Ballard complains may no longer be necessary and it may soon be eliminated as a matter of legislative judgment.

William J. Brennan, Jr.:

Well, you say soon be eliminated that’s rather optimistic is it?

Harriet S. Shapiro:

It’s probably not this here.

Thurgood Marshall:

Ms. Shapiro, I think you’ve covered it, but your figures on the women includes the medical and the nurse school?

Harriet S. Shapiro:

No the 14 year — the 14th figure, no, that includes only the women that are subject to this special provision.

And it doesn’t the nurse core which has got another 13 year provision.

Potter Stewart:

And then the nurse core, excuse me.

Thurgood Marshall:

How about the medical core?

Harriet S. Shapiro:

The medical core the women are subject to the same two pass over role.

Potter Stewart:

And are there now men in the naval nurse core?

Harriet S. Shapiro:

Yes, not very man —

Potter Stewart:

Commission officers?

Harriet S. Shapiro:

Yes.

Potter Stewart:

Commissioned officer nurse in?

Harriet S. Shapiro:

Commissioned officer nurses, yes.

Potter Stewart:

The new navy?

Harriet S. Shapiro:

If there no further question, I will reserve the time I have?

Warren E. Burger:

Very well Mrs. Shapiro.

Mr. Khoury.

Charles R. Khoury, Jr.:

Mr. Chief Justice and may it please the court I’m Charles Khoury.

And several years ago when Lieutenant Ballard came to my office and asked me for help in this situation, I knew it was a unique case and I was able to discern after a short time that it involved the issue which is before the court now.

Sex discrimination, he sought me out because I had been in the navy for 11 years and he knew that I graduated form the Naval Academy that accounts for four of 11 years.

And I was familiar with the problems that are involved in promotion, I was familiar with the problems of a mustang and having an individual who walks into your office and has 17 years of active duty which is creditable towards a 20 year retirement and he’s about and if he were a woman he would have, he’d be over the top, he would be able to retire.

And of course, this was the overriding issue, this is overriding is concern as Mrs. Shapiro stated from Lieutenant Ballard.

And it was a simple as that, it is as simple as that.

Potter Stewart:

How many years will he need —

Charles R. Khoury, Jr.:

Well, right now at this instant he will retire in February of 1975 which is about 4 months from now.

Potter Stewart:

So he will have.

Charles R. Khoury, Jr.:

I mean he would, but that’s another issues that I want to talked about is mootness of this case but I’m saving that for the end of that.

William J. Brennan, Jr.:

Well, let me see if I get this.

While he was asked there, was that he’d be eligible for retirement?

Charles R. Khoury, Jr.:

Exactly, and if he will win this —

William J. Brennan, Jr.:

And now this law suit has accomplished that for him or will by February as you said it.

Charles R. Khoury, Jr.:

Exactly, Your Honor.

But let me state what I’m going to talk about briefly outline, I’m going to talk about the rational basis.

Potter Stewart:

Mrs. Shapiro, tells tells us the statute is going to be repealed, you tell us he gets everything he wants, but what are we dealing with?

Charles R. Khoury, Jr.:

Sounds like in its fullness, doesn’t it?

But at any rate the relief — I’m going to talk about whether there is any rational basis to support this particular statute and what relief should be granted and then I’m ready to talked about why this appeal might be dismissed.

Lewis F. Powell, Jr.:

Is it your view that the rational basis test applies?

Charles R. Khoury, Jr.:

Your Honor, I feel that the compelling interest test would apply here, however we’re talking about if the court were to find a rational basis I feel that that would also be a compelling interest in this particular situation.

I feel that there’s no reason not to apply a compelling interest here because this not a Kahn versus Shevin situation namely protective legislation being —

Potter Stewart:

Being a man it’s not a tax case.

Charles R. Khoury, Jr.:

That’s right.

Potter Stewart:

That’s what Kahn v. Shevin was.

Charles R. Khoury, Jr.:

And so I’m not at all saying, I’m responding to what Mrs. Shapiro said about a rational basis and our brief I talk.

Potter Stewart:

It’s not a Florida tax case either which is what that was.

Charles R. Khoury, Jr.:

But at any rate, I agree that con is not applicable here, but basically what Mrs. Shapiro is saying is that because this is going to cause a great problem there’s a military necessity for doing this, in other words, it’s the reasoning backward problem.

And this Court has been faced before with situations where attorney’s have said that the courts — if the Court implements this decision in other words, if the court finds something unconstitutional it’s going to cause a great problem.

And in the integration cases I’m sure that was argued to the court that great problem would occur in the implementation of the decision by the court namely that integration must occur.

And what Mrs. Shapiro is doing is talking about the relief aspect and then using that — the difficulties saying that there’s going to be difficult relief and then using that to say that there is a compelling military necessity to continue the same scheme.

Namely a separate system for women and a separate system for men as far as selection out is concern.

And I submit to the court that we should not confused that and I also want to talk about the figures that are being talked about here is namely in the court below the only people who had the same amount of years as Mr. Ballard or more were nine, nine people.

That was an affidavit that was filed by admiral force and it’s in the appendix and of course, the court below —

Thurgood Marshall:

Since you want to talk about figures, what’s your basis of nine based on the number, total number of years he was in the navy?

Charles R. Khoury, Jr.:

That’s right.

Thurgood Marshall:

The total number of years that he was a Lieutenant.

Charles R. Khoury, Jr.:

Officer and enlisted man, I’m talking about total number of years in the Navy Officer and enlisted men.

There were nine people who had —

Thurgood Marshall:

What has that got to do with the issue in this case?

Charles R. Khoury, Jr.:

Well —

Thurgood Marshall:

I mean how lieutenants did they have that it never been an enlisted man.

Charles R. Khoury, Jr.:

Her figure about lieutenants who would be covered by the statute 10 U.S.C. 6382 the whole number of lieutenants is correct.

In other words this 200 figure.

Thurgood Marshall:

What’s wrong with that figure?

Charles R. Khoury, Jr.:

Well, what I’m talking about Your Honor.

Thurgood Marshall:

The statute only talks about those, is that right?

Charles R. Khoury, Jr.:

The statute talks about.

Thurgood Marshall:

The statute talks about enlisted people?

Charles R. Khoury, Jr.:

No.

Thurgood Marshall:

People that have enlisted services, they don’t talk about that, the statute you’re talking about talks about lieutenants?

Charles R. Khoury, Jr.:

Well, let me talk about this Your Honor too.

Since we’re talking about the number of people —

Thurgood Marshall:

It is somewhere in the statute or where it is?

Charles R. Khoury, Jr.:

How many people are actually going to, if the Court finds that this is an unconstitutional discrimination how many lieutenants are actually going to say I want to stay in the Navy for an extra one or two years.

Now —

Thurgood Marshall:

You tell me I don’t know.

Charles R. Khoury, Jr.:

Okay, the point is that she is trying to stay.

Thurgood Marshall:

Well, how many in (Inaudible)

Charles R. Khoury, Jr.:

One person, one person it’s not possibly.

Thurgood Marshall:

1It’s awful large person.

Charles R. Khoury, Jr.:

That is exactly right and that’s the point I’m trying to make is that we’re talking about one person here and the government is arguing that we’re going to bring the, you know, have a whole lot of people 600 people over 33 years.

Thurgood Marshall:

Can you take care of this one without taking care of it yet?

Charles R. Khoury, Jr.:

Well that’s what I suggest that the Court do here is worry about the cases, the class action when it comes —

Thurgood Marshall:

Did the lower Court take care of one or all.

Did the lower court go after the whole study.

Charles R. Khoury, Jr.:

One person, and it declared the statute unconstitutional.

Thurgood Marshall:

Well that affects how many people.

Charles R. Khoury, Jr.:

Well as a practical matter, it would affect only those people who opted to take advantage of it and that’s point I’m trying to make.

You see what I’m getting at.

In other words it would be only those what the Court did since the government is talking about the effectiveness.

Let me talk about what happened after this, in other words, the class action was filed and the Court, the three-judge Court below allowed individuals to opt whether or not to stay in as if for the 13 years or to get out, and isn’t that the figure and that case hasn’t gone to trial yet – that’s still down in the District Court in San Diego, and that’s the point I’m trying to make.

We shouldn’t be talking about figures that have not been subject to trial and I’m going to get to that when I talk about an improperly presented Federal question because I really believe that this question has been improperly presented to this Court.

Last minute affidavits but I want to go on and talk about this, this idea of the rationale that the government has put up saying that they need this statute.

Charles R. Khoury, Jr.:

This 10 years 10 U.S.C 6382 and has opposed from and the ten US there is a rational basis for having the different treatment that’s what I’m talking about.

We’re not questioning selection of procedures, I’m talking about the situation where there is a rational basis or compelling interest to have different treatment or women as opposed to men, and they talk about a combat needs.

In other words, a tremendous increase of combat individuals.

Well from my own experience, that whenever you have an increase and necessity of getting combat individuals the support people are needed.

For every combat individual there are three or four individuals who have to support that individual and so this need of — this expanding of the service cuts across just the males, it cuts across that and into the women also and of course, basically all the government’s argument here is that because this may cause some fiscal inconvenience to the navy, then what makes it the military necessity and there is a compelling interest to have disparate treatment between men and women.

And we can’t argue backwards and say because it’s hard and it maybe hard, and I’m conceding that it is because as I was talking to Justice Marshall, we don’t know exactly how many people would opt to take advantage of the statute.

The women have the extra the 13 years, Lieutenant Ballad obviously is opting to take advantage of that because he can retire but it’s going to be a very small number of in generally mustangs as Justice Stewart says, and that’s the name that the Navy uses individuals who have been enlisted men and then go into the officer ranks.

And I want to respond to the — it was very clear and the Court below found after trial that this is a very highly qualified officer and on substantial evidences, this was a very highly qualified officer and his fitness reports were outstanding and during the period of time at the temporary restraining order he did very well and there were additional fitness reports were submitted by his command showing that they recommended him for promotion every time and so it is —

Lewis F. Powell, Jr.:

Does that tie to your constitutional argument at all?

Charles R. Khoury, Jr.:

It talks about the turn of the calendar.

In other words, if this is only a turn of the calendar and I’m responding to the government’s statement about a less qualified individual but correct, in other words, the constitutional issue is whether or not similarly situated people whether or not similarly situated women has the better situation whether a similar situated man is discriminated against by statutory here.

William H. Rehnquist:

That’s the basis that Court had followed in —

Charles R. Khoury, Jr.:

Exactly, Your Honor, and another point that I want to talk about that has to do with this constitutional issue is the assertion that women are also subject to the same statute.

I’m complaining is applied to my man and that was discussed below and evidence was taken below on that issue and the Court found that no woman had been discharged under 10 U.S.C. 6382.

That’s in the three- judge court’s opinion and I wanted to make that perfectly clear that they found that in fact no women had been discharge under this statute which the government is saying, well it really does apply to some women.

Potter Stewart:

Is it not valued that I have been promoted.

Is that the answer?

Charles R. Khoury, Jr.:

Namely, in other words, that no — well the government is trying to say that basically that there has been a detriment,in other words, a detriment equally applies to women and I guess what the Court is saying is that maybe no women has ever been passed over that is subject to — twice that was subject to the statute and that’s a possible interpretation.

But getting on to the, to the relief now in other words, we talked about the fact that there is a disparate treatment here of men and women similarly situated.

Now, what is the relief and that’s really what the government is complaining about, that’s really what is hurting the government here is that they’re worried about the relief, not whether or not there is a constitutional deprivation because that really has to be clear from the record especially when it was clear at the time Congress enacted this 13 year statute but they were just trying to make it be the same time as men and that’s very clear from the record, but there was never, that Congress wasn’t attempting any protective legislation or anything of that nature when they enacted this 13 year protector statute to women.

William H. Rehnquist:

Why did the custom changed with respect to men Mr. Khoury, I take it, it hasn’t been a result of statute but simply it’s a result of practice that gradually the period for men has gone down from 13 years.

Charles R. Khoury, Jr.:

Basically, what happened is that a restriction on time and grade was listed by an executive order, Presidential order and the latest one was signed by President Johnson in 1958 which took away a restriction that’s — before it used to have to be an (Inaudible) in a certain amount of time and then lieutenant JG a certain amount of time, before he was even eligible for promotion.

Potter Stewart:

Well, is this accurate in the government’s supply brief?

That, that suspension was made because suspension of normal time and grade provisions was of these officers was acquired in times of National Emergency, and this executive order suspended them as in a time of national emergency, is that right?

Charles R. Khoury, Jr.:

Basically, it says the suspension order says this is a national emergency.

One of the affidavits provided for the government as we’ve been in this state of national emergency for some many, many years right now and that’s true.

William H. Rehnquist:

Well of course, in the Second World War you had 21-year-old Colonels.

They did away with all sorts of time and grades.

Charles R. Khoury, Jr.:

And they did away with also this, the up or out procedure too during that period of time.

Nobody was getting kicked out during that period of time due to the Passovers, because the President has the authority to suspend all of that.

William H. Rehnquist:

But if he does in fact suspend, so that you don’t have to spend as much time and grade, doesn’t it follow as a natural consequence of that, that the opportunity to judge the man may come up more frequently?

Charles R. Khoury, Jr.:

The opportunity to judge the man is still going to be subject to two Passovers.

It means it’ll come faster and his total time and service will be less maybe by three years and if he is like the Lieutenant Ballard he may not be able to retire.

That’s the operative effect of it, not necessarily he is going to be observed more at all.

I mean in the Navy you’re observed once a year, no matter what, on your fitness reports unless you’ve been transferred and then you may have multiple observations.

William H. Rehnquist:

But that your chance to be promoted from lieutenant would come at the sooner date by reason of the Executive Order.

Charles R. Khoury, Jr.:

That’s right, and that’s exactly right.

Now — but we’ve must look at what Congress intended and we can’t at all say that Congress did not — Congress would not intend the benefit of the women not be applied to Lieutenant Ballard in this case.

I mean how it can be asserted that in any way shape or form that the Court below was wrong in applying the 10 U.S.C.6401 to Lieutenant Ballard to cure the — to grant the relief requested.

William H. Rehnquist:

Well, if you’re right the Court below was wrong if Congress wouldn’t have intended this to apply to Lieutenant Ballard they should have enforced the Congressional intent and not declared as statute unconstitutional.

Charles R. Khoury, Jr.:

Well, I never asserted and didn’t mean to give the Court the impression that it was Congress’s intent not to apply 6401 to Lieutenant Ballard.

In fact, it’s very possible that Congress, in fact the record shows that it was a Congress’s intent to equalize the services the male and the female when it said 13 years that’s conceded by the government.

So in no way, shape or form do I want to state that it could be Congress’s intent not to give that benefit because I mean that’s the relief that was sought, that’s the relief that was granted and there’s nothing in the record that would indicate that Congress’s intent would be other than to have this man get the same benefit as a woman.

William H. Rehnquist:

Well, why on earth do they have to declare a statute unconstitutional.

Charles R. Khoury, Jr.:

Well that was an executive order and in 1968 and the —

William H. Rehnquist:

Why wouldn’t they just told the Executive order was inconsistent with this intent of Congress that you described.

Charles R. Khoury, Jr.:

No, I wouldn’t say that the — because here’s the thing can we say that Congress would realized that the same statute or that the suspension of time and grade or the President would realize that this suspension of time and grade which causes the rapid promotion would also push out a bunch of well qualified people, do you see what I’m getting at.

I mean that’s really what the effect is, you want to increase the number, it’s a paradox, you want to increase the size of the military but at the same time because you’re suspending the time and grade a whole bunch of well qualified people maybe are getting pushed out.

Thurgood Marshall:

And I’m still worried about your statement that this one man Lieutenant Ballard, Congress meant to give him the same relief he gave women.

Charles R. Khoury, Jr.:

Because it’s in the record that Congress made 13 years in the women statute so it would equal the male statute.

That was their reasoning.

Thurgood Marshall:

Well, does that apply to the other 200 to be in the same category as Lieutenant Ballard?

Charles R. Khoury, Jr.:

Well, it would apply if in fact, the Department of Defense bill —

Thurgood Marshall:

If the other 214 join in this lawsuit would it apply to him?

Charles R. Khoury, Jr.:

If the other 214 were to join in this lawsuit, they — depending on how many years they had been in the service.

Thurgood Marshall:

But what is there in the Congressional History that limited to the number of years?

Charles R. Khoury, Jr.:

I’m just saying, Your Honor, that we can’t assume that it would be the intent of Congress to deny Lieutenant Ballard of this extra three years, that’s the assumption that we can’t make.

Thurgood Marshall:

Well, we can’t speak of Lieutenant Ballard but I still think of those other 200 in this.

Charles R. Khoury, Jr.:

Well, that’s a separate lawsuit that maybe completely decided by the changing of the slot.

Thurgood Marshall:

I don’t know there’s separate lawsuit.

Thurgood Marshall:

I thought you said they get in to being in this one.

Charles R. Khoury, Jr.:

Well, basically we’re talking about men who, they haven’t intervened and we’re up to the Supreme Court.

Thurgood Marshall:

Of course, (Inaudible) so all 200 and some of them are now in the same category as women according to you —

Charles R. Khoury, Jr.:

Anybody who was subject to discharge of that statute and if the statute is declared unconstitutional could be subject to that, but this is not a class action even though the government is talking about it like it’s a class action.

Warren E. Burger:

Besides several times that this procedure operates to push out well qualified people but isn’t that inherent in a process of keeping better qualified people?

Charles R. Khoury, Jr.:

We don’t attack the selection out procedure, Your Honor, just as the government stated we don’t attack that.

Warren E. Burger:

Well, I wondered why you put so much emphasis on the fact, that on the idea that this pushes out well qualified people.

Bound to be so when you move out of the Vietnam war or any other war in to a peacetime period that we begin to trim down your military establishment and this is part of that process isn’t it?

Charles R. Khoury, Jr.:

But what if you inject sex into that pushing out of well qualified people and that’s really what our problem is, because we have no quarrel with the selection — the up or out selection procedure – so it is a hard procedure but I’m not attacking it here, I can’t really but if it’s tied to sex I can and have and —

Warren E. Burger:

The government tells chooses that’s part of a compensatory arrangement for the fact that the female officers can’t get sea duty except in limited categories.

Charles R. Khoury, Jr.:

Well, I have a hard time with that, I couldn’t find any intent of Congress to that effect and I’m wondering about justifying a discriminatory scheme by saying that it’s to make up for another discrimination and we’re not in an attack situation like Congress or Shevin.

What I think the government is trying to do there is to bring this case — to attempt to bring this case within a rationale Congress or Shevin to say that this is really remedial or compensatory legislation and the record doesn’t support that.

Potter Stewart:

Mr. Khoury, getting back from this February date when he would be eligible for retirement, have you had any assurances from the Navy without the guards and the outcome of this case, that he will be kept out until he is eligible?

Charles R. Khoury, Jr.:

No Your Honor.

What we’re talking about here is what actually — what the government stated is that these nine people that I mentioned before are subject — in Mr. Ballard’s case who did not have 20 years in or 19 ½ years because they rounded off to 20, who do not have that period of the time in — they were kept in under 10 U.S.C. 1006 (e) which is called the Continuation Program and when you get within two years of retirement you are eligible for that program.

Now, he is very, he is lot closer than two years retirement.

He was not within two years retirement when we brought the lawsuit.

He is within four months of retirement right now, and so I feel that the Navy under 10 U.S.C. 1006 (e) will go ahead and retire the man anyway.

Potter Stewart:

Even if the judgment flows reverse?

Charles R. Khoury, Jr.:

Exactly.

Potter Stewart:

On that basis that you’re suggesting this case might be moot and dismissed?

Charles R. Khoury, Jr.:

Yes Your Honor, and the reason is such a late suggestion on my part is that I just came across Odegaard and that logic, and DeFunis v. Odegaard yesterday in researching this and I felt that I must bring that up to the Court.

Also the idea of dismissing this appeal on the idea of the fact that the federal question hasn’t been properly presented, so much of what I’ve been talking about here has been affidavits and what the government has been putting forth were presented in affidavits which presented after the trial in this case in a motion for new trial.

They have never been responded to by Lieutenant Ballard because the trial was over, and that’s not a proper way to bring the federal question before this Court as I said in my brief and I did raise this in my brief that the federal question is not properly presented.

It would be best for the Court, if the Court isn’t going to rule in favor of me and my client on the merits.

It would be best to dismiss the appeal and have the question properly presented or if again the Court isn’t going to rule in favor of my client on the merits in this case and fine number one that there was a constitutional deprivation, sex discrimination here and grant the same relief that was granted below.

William H. Rehnquist:

If the rational basis applies Mr. Khoury, does it make much difference whether the arguments are put in the form of an affidavit by an admiral or whether they are put in the form of an attorney’s brief saying rational people could argue that such and such would serve a purpose, I mean one way you’re confronted with that as a statement of fact, and other way your confronted with a legal argument but it’s pretty much the same right?

Charles R. Khoury, Jr.:

Your Honor, the whole point of their affidavits is the Pandora’s Box argument that I’ve alluded to before, namely, words to the effect that the Navy is going to come it’s screeching halt if the Court implements this relief.

Not that there is a discrimination but that the relief is going to be very hard on the Navy and that’s what I’m contesting, that I’ve never had a chance to contest by a way of interrogatory, that never stood the test of trial because let me say this, that there are actually in my experience and here I’m doing the same thing that I’m saying the government is doing I don’t want to be testifying but there are very few people who are going to take advantage of this so it can’t bring the Navy to his screeching halt.

William H. Rehnquist:

Is this really the way we’re trying constitutional cases now.

William H. Rehnquist:

What I’m saying is addressed perhaps more to the government than to you that instead of making arguments as lawyers as to supporting justifications, you take people’s depositions and put them on the witness stand to see what they were thinking when they promulgated a particular right of regulation?

Charles R. Khoury, Jr.:

There are a lot of facts which have been spoken to by the government in an attempt to support a rational basis which would never raise before and that’s and I contest their accuracy.

I’m contesting that even it is that they make a rational basis and so —

William H. Rehnquist:

But you’re just as able to make that argument now having seen the affidavit as you would be had just seen it in our opposing brief.

Charles R. Khoury, Jr.:

Oh!

No Your Honor, no that’s not true I mean because of the fact that we would be, I would be able to tell the Court that as a matter of fact it’s not 200 people that are taking advantage of this lawsuit but maybe 20.

Did you see the difference in that?

I mean their whole basis is that this is causing an administrative problem with the Navy and a money problem with the Navy that’s really what their whole argument is Your Honor.

William H. Rehnquist:

Well, does that meet the rational basis test?

Charles R. Khoury, Jr.:

No, I don’t think that meets the rational basis test at all.

Byron R. White:

Mr. Khoury let me go back where I started.

Did this statute precede the admission of women into the navy?

Charles R. Khoury, Jr.:

10 U.S.C. 6382.

Did it precede the admission?

Byron R. White:

(Inaudible) was it a practice before the formation ways.

Charles R. Khoury, Jr.:

I can’t answer that, Your Honor, and all that —

Byron R. White:

If it were I suppose at that time, there isn’t any constitutional argument, and the constitutional argument arises only because of the presence of 6401.

Charles R. Khoury, Jr.:

That’s true.

Byron R. White:

And then why is it in 6401 the unconstitutional statute?

Charles R. Khoury, Jr.:

Well, the scheme is unconstitutional and the point is in the two ways that we approach this, the Court below has the decision what were they going to do, what relief were they going to grant and then that’s the decision that they had to make is to try to figure out what Congress intended.

In other words, when you say which statue I don’t like to say that one or the other is unconstitutional because for one thing 10 U.S.C. 6382 did not combine women in it.

So I had to argue that two statutes in the same sections 10 U.S.C. operating together as a whole were unconstitutional, does the Court see what I’m getting at and that’s what my arguments was below.

Harry A. Blackmun:

My problem here is that do you think we have a constitutional system before 6401 was enacted, and because of it’s enactment all of a sudden you’re here claiming unconstitutionality of the others, I just wanted the chronology had to do anything with it all?

Charles R. Khoury, Jr.:

I think the chronology would help in figuring out what the intent of Congress is Your Honor and that’s what the Court has to do when they’re granting relief.

In other words, we can conclude on the merits that there is an unconstitutional discrimination.

The question is what to do about it and the Court below took the action that they did and I’m talking about the fact here now that there is ample justification to support their assumption that this is what Congress would do.

Now, unless there are any further questions —

Harry A. Blackmun:

Sure I understand your suggestion, that this case maybe moot?

Charles R. Khoury, Jr.:

Yes Your Honor, because of the fact that at the time the lawsuit was filed he did not come within the relief established in this and I’m referring, let me just refer the Court specifically to the brief and the government alluded to it in the oral argument but basically in the government’s brief at page 5, footnote 6, there is a statement about this long standing policy of the navy to retire individuals when they’ve gotten within two years of retirement and then there’s a Forbes’s affidavit which is in Appendix 9 (a) and then there’s also an affidavit which is not in the Appendix but which is in the record of this case which was filed by the government which stated that yes in fact, the navy does have this long standing policy to retire individuals when they get within two years of retirement and it’s supported by statute and that’s what I cited the statute 10 U.S.C 1006 e and that he is now within that and it‘s my understanding that he is going to be retired on that, that they really — based on the navy’s long standing policy what is there to exempt him from that long standing.

Potter Stewart:

And he is now within about five months or so.

Charles R. Khoury, Jr.:

Well February —

Potter Stewart:

Whatever that is next January?

Lewis F. Powell, Jr.:

Yeah, but that is not mandatory is it?

Charles R. Khoury, Jr.:

Let me state what that situation is.

It is the long standing policy all nine of the officers who were in Lieutenant Ballads class and this group of people, who were two years — within two years they were all retired, in the new bill that becomes mandatory, let me say something further, that in the new bill that the government was talking about, he has no problem.

None of this people have any problem in this new bill they all have equity, they get large equity payments — a lot of this is taken care of but it’s true Your Honor, it’s this 10 —

Potter Stewart:

Yes but the policy involved is the reserved appointment according to that but–

Charles R. Khoury, Jr.:

That’s right in other words —

Potter Stewart:

Your thought is that —

Charles R. Khoury, Jr.:

You resign —

Potter Stewart:

At this junction however this case comes out, he would probably get a reserved appointment so that it could retire in February.

Charles R. Khoury, Jr.:

Exactly.

Thank you, Your Honor.

Warren E. Burger:

Do you have anything further Mrs. Shapiro?

Potter Stewart:

I just have one other question.

If he gets the reserved appointment will that entitle him to stay in a total of 13 years after having —

Charles R. Khoury, Jr.:

Oh!

Well it will just —

Potter Stewart:

Will that equalize him with the woman — who have all the (Voice Overlap)

Charles R. Khoury, Jr.:

As a practical — yes Your Honor, as a practical matter he will be able to stay until retirement which his retirement is, well his retirement actually even if he stays in until February 16, 1975 that’s retirement that’s 19 ½ years, you mean in 19 ½ years February 16th 1975.

Potter Stewart:

But that still doesn’t give him what a woman would have, I take it, does it, 13 years as a Lieutenant?

Charles R. Khoury, Jr.:

Very close to it.

Potter Stewart:

As a lieutenant.

Charles R. Khoury, Jr.:

Very — it will be very close to it Your Honor.

William H. Rehnquist:

Mr. Khoury, I believe our practice in cases where we find the case is moot is to vacate the judgment below and direct the action be dismissed so that you would in effect lose the benefit of your District Court judgment whereas I understand it, we concluded it as it is moot, is that agreeable to you?

Charles R. Khoury, Jr.:

Well Your Honor, I was in dismissing I’m talking about that in the context of dismissing the appeal.

I felt that the Court would dismiss the appeal on the grounds of number one; if for example, it was improperly presented Federal question.

William H. Rehnquist:

If a case is moot though under our (Inaudible) case we vacate the judgment below and directed the action be dismissed.

Potter Stewart:

It’s different from a dismissal and the appeal is properly broad.

The judgment in the latter case stands but in the former a dismissal is moot — vacation.

Charles R. Khoury, Jr.:

May I suggest something to the Court then, because this is a very important point and I’m only raising for the first time.

I would like to submit refund.

Additional refund is issued because it is so important and obviously I don’t want any way, shape or form to be asking the court to do something that will undercut the victory that was one below and so I would ask to be able to —

Potter Stewart:

Suppose the government were to say to us today we’re doing the apply this policy put him on a reserve appointment status so that then he can be retired in February.

Would you still object to a vacation and dismissal of the action as moot?

Charles R. Khoury, Jr.:

The court puts me in a tough position, I don’t see how — if the — if my client is going to be — is to get this retirement which is — which was really the ultimate of the lawsuit, I don’t see how I could object.

Thank you.

Potter Stewart:

What about other?

Warren E. Burger:

Mrs. Shapiro.

Potter Stewart:

Well, what about — is it true that as your –instances like this, if within two years of retirement as he now is, — your plot park probably practice where they have to do it or not is to give them a reserve appointment and let them finish out the term.

Harriet S. Shapiro:

That is the policy but this is certainly a special situation.

The only reason that he is still in service is because the navy has been enjoined from discharging him and that is not the same kind of the situation if this Court should decide that the injunction was properly issued the secretary of the navy has not made up his mind what he would do.

As a matter of fact, he is waiting to see how this case comes out.

Byron R. White:

Well if you could still win the case and the injunction could still have been proper issue.

Harriet S. Shapiro:

I —

Byron R. White:

Well, what about — I suppose — until the appeal was finally over, until the case is finally over and the injunction has been outstanding.

Harriet S. Shapiro:

Well, the injunction against discharging him I believe is based on the conclusion that the statute was —

Byron R. White:

Requirements on the merits?

Harriet S. Shapiro:

Yeah!

There’s a permanent injunction that we are under and the reason for the injunction —

Byron R. White:

Is there a preliminary injunction?

Harriet S. Shapiro:

Yes there was.

Potter Stewart:

Of course if there is an affirmance, then what’s your situation?

Harriet S. Shapiro:

The Secretary of the Navy hasn’t decided.

He doesn’t and he —

Potter Stewart:

Well, that — if the injunction remained, you can’t discharge him.

Harriet S. Shapiro:

That’s true.

Yeah!

Oh!

Yes.

Harriet S. Shapiro:

That’s his —

Potter Stewart:

And in February he may retire.

Harriet S. Shapiro:

That’s right.

Warren E. Burger:

Well, no — he can’t retire —

Harriet S. Shapiro:

Well, we can’t discharge him until — for 13 years.

Potter Stewart:

And you can’t even discharge him in February.

You have to hold him —

Harriet S. Shapiro:

We have to hold him —

Potter Stewart:

Just prior to the expiration, you can’t just discharge him prior to expiration of 13 years of commission service.

Harriet S. Shapiro:

Yeah.

Potter Stewart:

Making him the same equivalent as though he were a female.

Harriet S. Shapiro:

We would hope that if the Court found that there was an unconstitutional discrimination — we would have — the relief would indicate that if the special statute were repealed, why?

He wouldn’t have to be kept for the 13 years that you know the —

Potter Stewart:

Well, I would suppose if it were reputed, you’d go back to District Court and tell him so and let them decide in the first instance for what happens.

We wouldn’t decide that on a ‘if he’ basis here.

Harriet S. Shapiro:

The only other point, I wanted to make was that the class actions that Mr. Khoury referred to are pending in the District Court and as a matter of fact, we are under injunctions prohibiting the discharge of the people that are involved in those cases.

Lieutenant Ballard would have been discharged in June of 1972.

There’s one case involving Lieutenants who would’ve been just discharged in June of 1973 and the other in June of 1974 and those cases are being held pending the outcome of this case.

Warren E. Burger:

Thank you Mrs. Shapiro, and Mr. Khoury.

The case is submitted.