Joseph C. Steffan v. William J. Perry, Secretary of Defense

RANDOLPH, Circuit Judge,

concurring in part:

I join all of the court’s opinion, except part IIIB, which holds that Steffan did not have standing to challenge the constitutionality of the Department of Defense regulations.

Steffan has never pinpointed where on the continuum between homosexual conduct and mere homosexual thoughts he placed himself at the time of his “constructive” discharge. He treats the matter as irrelevant. Our opinion in Steffan v. Cheney, 920 F.2d 74 (D.C.Cir.1990) (per curiam), basically agreed. The legal issue posed by the case, both then and now, is whether the military relied on unconstitutional grounds in threatening to force Steffan out of the Naval Academy. 920 F.2d at 76 . Obviously, one cannot begin to decide that issue unless one first identifies the military’s grounds. Here is where Stef-fan’s case runs into difficulty. The problem for Steffan is not lack of standing. It is that he failed to substantiate an essential portion of his case — namely, the truth of his claim that the military constructively discharged him solely because of his “homosexual orientation.” Two points strike me as important in this regard.

First, Steffan’s allegation is aimed at what the military officials had in their collective minds, not what Steffan had in his. Given the posture of the ease, the majority opinion’s list of “facts that would have to be true” for Steffan to have standing — whether Stef-fan read the regulations, whether he had some particular definition in mind when he said he was a homosexual, whether (unknown to officials at the Academy) he had engaged in homosexual conduct — seem to me beside the point. It is the military’s grounds for decision that are decisive. “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 , 63 S.Ct. 454, 459 , 87 L.Ed. 626 (1943); White v. Secretary of the Army, 878 F.2d 501, 503 (D.C.Cir. 1989).

The second point is more significant. Stef-fan has not established, and in my view cannot establish, that the military constructively discharged him only because of what he calls

*700 “homosexual orientation.” Of course one may safely assume that individuals who engage in homosexual conduct have such an orientation. But in attributing reasons to the military, Steffan excludes those individuals. He envisages those men, and only those men, who are sexually attracted to other men, who have not engaged in homosexual conduct, and who predict they will never act on their sexual urges during their years in the military, on duty or off. The problem for Steffan is that the record fails to disclose that the military acted on the basis he proposes. The relevant Department of Defense and Naval Academy regulations do not even mention “homosexual orientation.” To be sure, the psychological report submitted to the Brigade Performance Board said that Steffan “admitted to homosexuality” and that this “orientation pre-dates his tenure at the Naval Academy.” The Board thereupon heard Steffan profess to being a homosexual and, after deliberating privately, rendered its decision that Steffan should be discharged “by reason of homosexuality.” There is but one conclusion to be gleaned from this: the Board found that Steffan had violated the Naval Academy regulation, which states that “homosexuality” includes “statements by the member that he or she is a homosexual.... ” United States Naval Academy Regulation, COMDTMIDN Instruction 1610.6F Ch-2.15.3.C (July 16, 1987). Steffan’s claim that the military meant what he supposes is a claim he has not proven, and it is one he cannot at this stage establish. He must take the record as it was made at the time. So must we. When the Academy proceedings terminated with the Board’s recommended decision and Steffan’s resignation, the record closed. Thereafter, the mental processes of the decisionmakers could not be probed. United States v. Morgan, 313 U.S. 409, 421-22 , 61 S.Ct. 999, 1004-06 , 85 L.Ed. 1429 (1941); National Nutritional Foods Ass’n v. FDA 491 F.2d 1141 (2d Cir.1974) (Friendly, J.). As a result, the only question before us with respect to both sets of regulations is whether a member’s statement that he is a homosexual supplies the military with a rational basis for discharging him. On that score, I fully agree with the reasoning of the majority opinion that it does. Insofar as Steffan claims that the military acted against him pursuant to a policy of discharging those he defines as having only a “homosexual orientation,” he loses because he has not made out an essential element of his claim. Steffan had standing to try. He simply failed in the attempt. Since the majority opinion credits Steffan with standing in regard to the Naval Academy regulations, and since what I have written conforms to my reading of the majority’s resolution of the DOD regulations, I concur with all but part IIIB of the majority’s opinion.