Captain Susan R. STRUCK, Plaintiff-Appellant, v. SECRETARY OF DEFENSE Et Al., Defendants-Appellees

460 F.2d 1372 9 Fair Empl.Prac.Cas. 1259 , 4 Empl. Prac. Dec. P 7571, 4 Empl. Prac. Dec. P 7806 Captain Susan R. STRUCK, Plaintiff-Appellant, v. SECRETARY OF DEFENSE et al., Defendants-Appellees. No. 71-1150. United States Court of Appeals, Ninth Circuit. Nov. 15, 1971. As Modified on Denial of Rehearing and Rehearing In Banc May 4, 1972. Jan E. Peterson, (argued), Seattle, Wash., David McGoldrick, Tacoma, Wash., Michael H. Rosen, Seattle, Wash., for plaintiff-appellant. Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal. (argued), L. Patrick Gray, III, Asst. Atty. Gen., Washington, D. C., for defendants-appellees. Before CHAMBERS, Circuit Judge, MADDEN, * Judge of the United States Court of Claims, and DUNIWAY, Circuit Judge. MADDEN, Judge: 1 Captain Susan R. Struck, of the United States Air Force, hereinafter sometimes referred to as the appellant, brought the action from which the instant appeal arises, in the United States District Court for the Western District of Washington. Her suit sought a permanent injunction and declaratory relief "To Prevent Unlawful Discharge from Military Service." The Air Force filed an answer to the complaint and made a motion to dismiss.…

Captain Susan R. Struck, of the United States Air Force, hereinafter sometimes referred to as the appellant, brought the action from which the instant appeal arises, in the United States District Court for the Western District of Washington. Her suit sought a permanent injunction and declaratory relief “To Prevent Unlawful Discharge from Military Service.” The Air Force filed an answer to the complaint and made a motion to dismiss. Briefs were filed and oral arguments were heard by the District Court on January 29, 1971. The Court made findings of fact which we summarize as follows:

Captain Struck entered on active duty in the United States Air Force on April 8, 1967, as a commissioned offieér, and served continuously on active duty from that date. On and prior to the date of her commission and continuously thereafter there was a regulation, promulgated by the Secretary of the Air Force, providing for the discharge from the Air Force of officers who became pregnant. During 1970, while serving on active duty in Viet Nam, Captain Struck became pregnant. About October 16, 1970, she appeared before a duly constituted Board of Officers duly convened pursuant to the pertinent statute.…

On Petition for Rehearing and Suggestion of a Rehearing in Banc

ORDER

Judge Madden having died while the petition for a rehearing was pending, Circuit Judge Wright was chosen by lot to take his place on the panel to consider the petition for a rehearing. Chief Judge Chambers and Circuit Judge Wright vote to deny the petition for a rehearing .by the panel. Circuit Judge Duniway votes to grant a rehearing by the panel, and files a dissenting opinion.

All members of the court in active service have considered the suggestion of a rehearing in banc, and a majority *1378 votes against a rehearing in bane. Circuit Judges Browning, Duniway, Ely, Hufstedler and Goodwin vote to grant a rehearing in banc.

Circuit Judge Hufstedler concurs in Circuit Judge Duniway’s dissenting opinion.

The petition for a rehearing is denied. The suggestion of a rehearing in banc is rejected.

(dissenting).

I dissent. I think that the panel should grant a rehearing. As a member of the panel that first heard the case, I concurred in Judge Madden’s opinion. However, the petition for rehearing and the decision in Reed v. Reed, 1971, 404 U.S. 71 , 92 S.Ct. 251 , 30 L.Ed.2d 225 , persuade me that a rehearing should be granted, and the judgment appealed from reversed.

' In Reed v. Reed, supra, a unanimous Court in an opinion by the Chief Justice, held that a state statute giving preference to males over females in the administration of estates violates the equal protection clause of the Fourteenth Amendment. In so doing, the Court held that the difference-in sex of the competing applicants for letters of administration bore no “rational relationship to a state objective that is sought .to be advanced.” (92 S.Ct. p. 254.) The principle of the Reed decision is applicable here because federal action of a kind which, if done by a state, would violate the equal protection clause of the Fourteenth Amendment, is a violation of • the due process clause of the Fifth Amendment. Bolling v. Sharpe, 1954, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 .

It is not yet clear whether…