Petition — Beller v. Lehman

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e) “Supreme Court, U.S.

ss () ea l 3 9 0 — T ED

No. FEB 17 198!

ALEXANDe L. 21c WAS,

CLERK

oan

IN THE

Supreme Court of the United States

October Term, 1980

AG1 DENNIS R. BELLER,

Petitioner,

vs.

THE SECRETARY OF THE UNITED STATES NAvy:;

CAPTAIN C.R. WARD, COMMANDING OFFICER,

FLEET NUMERICAL WEATHER CENTRAL,

MONTEREY, CALIFORNIA

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD P, FOx*

9911 W. Pico Boulevard

Los Angeles, California 90035

(213) 553-2700

DONALD C. KNUTSON

STEPHEN PARRISH

Gay Rights Advocates, Inc.

540 Castro Street

San Francisco, California 94114

Attorneys for Petitioner

*Counsel of Record

No.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1980

AG1l DENNIS R. BELLER,

Petitioner,

vs.

THE SECRETARY OF THE UNITED STATES

NAVY; CAPTAIN C.R. WARD, COMMANDING

OFFICER, FLEET NUMERICAL WEATHER

CENTRAL, MONTEREY, CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD P. FOX

9911 West Pico Boulevard

Los Angeles, California 90035

(213) 553-2700

DONALD C. KNUTSON

STEPHEN W. PARRISH

Gay Rights Advocates, Inc.

540 Castro Street

San Francisco, CA 94114

(415) 863-3624

Attorneys for Petitioner

*/ Counsel of Record

Questions Presented

l. Whether the Constitutional right

to due process of law requires the Armed

Forces to articulate standards or to set

forth a rationale when an administrative

decision by the Armed Forces results in

adverse action to one of their members.

2. Whether administrative decisions

by the Armed Forces must first be tested

in the Armed Forces Board for Correction

of Military Records before the federal

courts obtain subject matter jurisdiction

over the case.

3. Whether the Navy regulations, con-

strued by the Court of Appeals as man-

dating discharge of those who engage in

homosexual conduct, comport with due

process of law.

LIST OF PARTIES TO THE

PROCEEDING IN THE COURT BELOW

(See App., infra, p. 56a)

AGI DENNIS R. BELLER,

Plaintiff-Appellant

JAMES LEE MILLER,

Plaintiff-Appellant

MARY ROSEANN SAAL,

Plaintiff-Appellee.

J. WILLIAM MIDDENDORF,*

Secretary of the Navy,

Defendant - Appellant

DONALD H. RUMSFELD,

Secretary of Defense,

Defendant - Appellee.

* Mr. Middendorf has been

replaced as Secretary of the

Navy. At the time this Petition

was prepared, a new Secretary

has not been appointed. There-

fore, this petition has been

styled pursuant to Rule 40.4,

naming the Secretary of the Navy,

in his official capacity, as a

Respondent.

LIST OF PARTIES TO THE

PROCEEDING IN THE COURT BELOW

(See App., infra, p. 56a)

AGI DENNIS R. BELLER,

Plaintiff-Appellant

JAMES LEE MILLER,

Plaintiff- Appellant

MARY ROSEANN SAAL,

Plaintiff-Appellee.

J. WILLIAM MIDDENDORF,

Secretary of the Navy,

Defendant- Appellant

DONALD H. RUMSFELD,

Secretary of Defense,

Defendant- Appellee.

TABLE OF CONTENTS

ledbie of Authorities

Opinions Below

Jurisdiction

Statutes and Regulations Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

Order of the United States

District Court for the

Northern District of

California

Memorandum of Decision of

the United States District

Court for the Northern

District of California

Order Granting Defendants

Motion for Summary

Judgment of the United

States District Court for

the Northern District of

California

la.

4a.

48a.

Opinion of the United

States Court of Appeals for

the Ninth Circuit

O° ier of the United States

Court of Appeals for the

Ninth Circuit

Order of the United States

Court of Appeals for the

Ninth Circuit Denying Petition

for Rehearing

10 U¥.8.C.S. § 1552

Correction of Military

Records: Claims Incident

Thereto

Department of the Navy

SECNAV Instruction 1900.9A

32 Code of Federal Regulations

41.4(a) (1976)

-ii-

Page

56a.

154a.

156a.

157a.

léla.

l7la.

TABLE OF AUTHORITIES

Cases Page

Bard v. Seamans,

507 F.2d 765 (10th Cir. 1974) 20

Berg v. Claytor, 10,

591 F.2d 849 (D.C. Cir. 1978) 12

Boutilier v. INS,

387 U.S. 188 (1967) 21

Carey v. Population Services Int.,

431 U.S. 678 (i977) 24

Champagne v. Schlesinger, i oe FP

506 F.2d 979 (7th Cir. 1974) 19

Committee for G.I. Rights v.

Callaway,

518 F.2d 466 (D.C. Cir. 1975) 19

Crawford v. Cushman,

$3] F.2d@ 1114 (2nd Cir. 1976) 15

Craycroft v. Ferrall,

337 U.S. 335 (i970) 18

De Santis v. Pac. Tel. & Tel.,

608 F.2d 327 (9th Cir. 1979) 23

Doe v. Commonwealth's Atty., 23,

403 F.Supp. 1199 (E.D. Va. 1975) 24

Downen v. Warner,

481 F.2d 642 (9th Cir. 1973) 20

-iii-

Gay Law Students Assoc. v.

Pacific Tel. & Tel.,

24 Cal.3d 458; 156 Cal.Rptr.

14 (1979) 23

Gaylord v. Tacoma School Dist.,

88 Wn.2d 286, 559 P.2d 1340

(1977) 23

Hayes v. Secretary of Defense,

515 F.2d 668 (D.C. Cir. 1975) 19

Hodges v. Calloway,

499 F.2d 417 (5th Cir. 1974) 19

In re Labady,

326 F.Supp. 924 (S.D.N.Y. 1971) 23

In re Nemetz,

485 F. Supp. 470 (E.D. va. 1980) 23

Matlovich v. Secretary of the Air

Force,

591 F.2d 852 (D.C. Cir. 1978) at

Morrison v. State Bd. of Educ.,

1 Cal.3da 214, 461 P.2d 375 (1969) 22

Nelson v. Miller,

373 F.2d 474 (3rd Cir. 1967) 20

Norton v. Macy,

417 F.2d 1161 (D.C. Cir. 1961) 22

People v. Onofre,

N.Y. (1980) 23

~ iv-

Ratchford v. Gay Lib,

434 U.S. 1080 (1978)

Sanger v. Seamans,

507 F.2d 817 (9th Cir. 1974)

Seepe v. Department of the Navy,

518 F.2d 760 (6th Cir. 1975)

Singer v. Civil Service Comn.,

530 F.2d 247 (9th Cir. 1976)

United States ex rel. Checkman

v. Laird,

469 F.2d 787 (2d Cir. 1972)

United States v. Haughton,

413 F.2d 736 (9th Cir. 1969)

Statutes and Rules

5 U.S.C. Section 552 (a)

10 U.S.C. Section 1552 (a)

28 U.S.C. Section 1254(1)

28 U.S.C. Section 1331

28 U.S.C. Section 1361

32 C.F.R. Section 41.4(a)

Rule 19(b), Revised Rules of the

Supreme Court of the United States

Miscellaneous

Homosexuality and the Law,

5 J. of Homosexuality 5 (1980)

Symposium, Sexual Preference and

Gender Identity, 30 Hastings

L.J. 799 (1979)

-vi-

No.

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1980

AG1l DENNIS R. BELLER,

Petitioner,

vs.

THE SECRETARY OF THE UNITED STATES NAVY;

CAPTAIN C.R. WARD, COMMANDING OFFICER,

FLEET NUMERICAL WEATHER CENTRAL,

MONTEREY, CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable Warren E. Burger,

Chief Justice of the Supreme Court of the

United States and the Associate Justices

of the Supreme Court of the United States:

Petitioner prays that a writ of

certicrari issue to review the judgment

of the United States Court of Appeals

for the Ninth Circuit, entered on

October 23, 1980, as amended November 3,

1980, affirming the order of the United

States District Court for the Northern

District of California granting Respon-

dents' motion for summary judgment.

OPINIONS BELOW

The opinions of the District Court

are set out in the Appendix, infra, pp.

4a, 48a. The opinion of the United States

Court of Appeals affirming the District

Court is reported at 632 F.2d 788 (1980)

and is set forth in the Appendix, infra,

p. 56a. The order of the Court of Appeals

denying the petition for rehearing is set

out in the Appendix, infra, p. 156a.

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit

was entered on October 23, 1980, was

amended on November 3, 1980, and a timely

petition for rehearing was denied on

November 21, 1980. Jurisdiction to review

the Court of Appeal's judgment is con-

ferred on this Court by 28 U.S.C. §

1254(1).

STATES AND REGULATIONS INVOLVED

10 U.S.C. 1552(a) [App. p. 157a]

which provides:

(a) The Secretary of a military

department, under procedures

established by him and approved

by the Secretary of Defense,

and acting through boards of

civilians of the executive part

of that military department, may

correct any military record of

that department when he consi-

ders it necessary to correct

an error or remove an injustice.

32 Code of Federal Regulations 41.4

(a) ‘1976) [App. p. 17la] which provides:

The Armed Forces have the:right

and duty to separate from the

Service, with an appropriate

characterization of service,

those members who clearly

demonstrate they are unquali-

fied for retention. At the

same time, such members have

rights which shall be protec-

ted.

Secretary of the Navy Instruction

1900.9A [App. p. 1l16la.] which provided

in pertinent part:

Members involved in homosexuality

are military liabilities who can-

not be tolerated in a military

organization. In developing and

documenting cases involving

homosexual conduct, commanding

officers should be keenly aware

that members involved in homo-

sexual acts are security risks

who discredit themslves and

the naval service by their

homosexual conduct. Their

prompt separation is essential.

At the same time, every safe-

guard must be taken to insure

against unjust action that will

stigmatize an innocent person.

STATEMENT OF THE CASE

The Petitioner originally enlisted

in the Navy on August 19, 1960. From

that date, he served continuously on ac-

tive duty, maintaining an exemplary

service record. On August 29, 1962,

Petitioner again re-enlisted for a period

of six (6) years. During 1975, while

ees og

Pte

dae aa

Petitioner was assigned as an Aerographer's

Mate First Class (a weatherman) assigned

to a weather station at Monterey,

California, the Navy decided that he

required access to "Top Secret" informa-

tion and initiated an investigation per-

taining to the security clearance.

During this investigation, Peti-

tioner was interrogated by an agent

of the Naval Investigative Service and

made a sworn statement on September 24,

1975 which, as found by the District

Court, Appendix, infra, p. 6a, stated in

pertinent part:

Regarding my sexual activities

I first engaged in sexual acts

with males after my enlistment

in the Navy. Since that time

I have engaged in sex with

males. I would not like to

name any people that I have

been engaged with. I have and

do now beliv [sic] myself to

be bisexual. I have been

President of the Monterey Dons

Motorcycle Club fo. 2 years.

I have been in the Guilded Cage,

Rightous [sic] Ram, known to be

Gay Bars.

The statement made by Petitioner

was referred to his commanding officer.

An administrative discharge board was

convened on November 28, 1975 to con-

sider his discharge from the Navy as "un-

fit". This action was taken pursuant to

Naval regulations which mandate processing

for discharge of members of the Navy

found to have engaged in homosexual acts.

At the administrative discharge

board hearing, evidence was presented

through Petitioner and other witnesses

concerning fitness of Plaintiff to con-

tinue serving honorably in the Navy. As

noted by the Court of Appeals in its de-

cision, Appendix, infra, p. 146a, footnote

14, there was confusion among the members

of the discharge board, or among Navy

discharge boards in general, as to their

authority to recommend retention in the

service for individuals being processed

for discharge as "homosexuals."

The Administrative Discharge Board

recommended that Petitioner be discharged

from the Navy for "unfitness". After

transmittal through military channels

to the Chief of Naval Personnel, on

December 19, 1975, he was ordered dis-

charged from the Navy as "unfit." Peti-

tioner obtained a temporary restraining

order from the District Court. Juris-

diction was alleged under 28 U.S.C. §

35h 55 €0°U28.0.-§ 13561, and 5, U.8.C.

§ 552(a). His motion for preliminary

injunction was denied. Appendix, infra,

pop. L4a7va.

The Navy subsequently moved the

District Court for summary judgment in

its favor, which was granted. Appendix,

infra, p. 48a. A timely notice of appeal

to the United States Court of Appeals for

the Ninth Circuit was filed. Petitioner's

case was consolidated with two other cases

involving separation of alleged homosex-

uals by the Navy, Miller v. Rumsfeld,

and Saal v. Middendorf, Appendix, infra,

p. 56a.

In an opinion filed October 23, 1980,

Appendix, infra, p. 56a, the actions of

the Navy were upheld as to all three

plaintiffs and in favor of the Navy by

the Court of Appeals on November 3, 1980,

Appendix, infra, p. 154a. A petition for

rehearing by Beller was filed and denied

by the Court of Appeals on November 21,

1980, Appendix, infra, p. 156a.

REASONS FOR GRANTING THE WRIT

1. A decision by this Court is nec-

essary to secure uniformity of decision.

The decision by the Court of Appeals

that the discretion to discharge or re-

tain those found to have engaged in

homosexual acts is not subject to judicial

review is directly contrary to the deci-

sions of the Court of Appeals for the Dis-

trict of Columbia in Matlovich v. Secre-

tary of the Air Force, 591 F.2d 852 (D.C.

Cir. 1978) and Berg v. Claytor, 591 F.2d

849 (D.C. Cir. 1978).

In Matlovich, the District Court had

granted the Government's motion for summary

judgment on the grounds that (1) "there

is no constitutional right to engage in

homosexual activity;" (2) that the dis-

charge policy satisfied the "rational

10.

basis" test of due process; and (3) that

Matlovich "had not proved that an excep-

tion had to be made in his case." (591

F.2d 854). The Court of Appeals declined

to decide the constitutional challenges

to the Air Force discharge policy. In-

stead, it vacated the decision granting

summary judgment and remanded with in-

structions to direct the Air Force to

provide a statement:

..-. which will show the re-

viewing court that improper

considerations were not taken

into account, that the parti-

cular airman was not treated

differently from others in

the same position, and that

there is a rational basis

for the refusal to retain this

serviceman.

591 F.2d 860.

Citing numerous cases from this

Court and the Courts of Appeal, the

District of Columbia Circuit held that

ii.

remand was necessary to comply with the

"normal rule" that where discretionary

administrative action is to be reviewed,

the agency must provide sufficient indi-

cation of the reasons for its decision

(591 F.2d at 857).

In Berg v. Claytor, 591 F.2d 849

(D.C. Cir. 1978), the Court of Appeals

for the District of Columbia again remand-

ed for articulation and explanation of

the Navy's policy and the application of

those standards to a discharged Naval

officer (591 F.2d at 85l1[footnotes omit-

ted])]:

Although the Navy regulation on

homosexuality (SECNAVIST 1900.

9A (July 14, 1971)) does not

in terms provide any exception

to the general policy of

separating homosexuals, the

Navy has interpreted it as not

mandating separation in all

cases. See Champagne v.

Schlesinger, 506 F.2d 979, 983,

984 (7th Cir. 1974). The Board

Aas

which considered appellant's

case was instructed that it had

discretion to recommend reten-

tion. Judge Gesell recognized

that, under the Navy's regulation

and policy, discharge was dis-

cretionary but felt that he had

no basis for overturning the

Navy's negative determination.

436 F.Supp. at 79, 83. He

said, however, that "it would be

helpful for the Navy to clarify

the considerations which apparent-

ly govern the circumstances under

which a homosexual, as a matter

of discretion, may be retained."

436 F.Supp. at 83.

As in Matlovich, we cannot

tell why Berg failed of retention

Or appraise that exercise of

discretion. The Administrative

Discharge Board found that his

record in the service did not

reflect such an outstanding po-

tential as a naval officer as

to militate against separation.

The District Court observed that,

though he “was a fine officer,"

"there is nothing in his record

that marks him as being unusual

or especially valuable to the

Navy." 436 F.Supp. at 83.

But we have nothing to show or

indicate that these very general

and very imprecise standards

represent Navy policy, or that

they have been applied in the

past or are being applied current-

ly, or that they sum up the

actual considerations which went

13.

into the Navy's ultimate decision

not to retain Berg. It is proper,

therefore, to call upon the service

for a fuller articulation and

explanation of its policy on re-

tention of homosexuals and the

application of those standards to

Berg's case.

The decision below is also in conflict with

Champagne v. Schlesinger, 506 F.2d 979

(7th Cir. 1974), where the Seventh Circuit

held, at the urging of the Navy, that

"there is room uncer the regulations for

the use of discretion in individual cases

of homosexual conduct." Exhaustion of

remedies to the Board for Correction of

Naval Records was required in order to

"give the Navy an opportunity to adopt a

narrowing construction of its regulation"

in order to facilitate judicial review

and to give the discharged seamen an op-

portunity to challenge the propriety of

the discharges as applied to them. (506

F.2d at 984). The Ninth Circuit held

14.

in the case at bar that exhaustion to

Board for Correction of Records was

not required, see App., infra p.

The judgment in the instant Peti-

tion goes far beyond the rights of ser-

vice personnel processed for discharge

because of homosexual conduct in impor-

tance. The decision is contrary to a

series of Courts of Appeals decisions

holding that meaningful review of

military discharges requires articulated

reasons, a requirement that cannot be

satisfied "by a bare recitation

of the ultimate statutory [regulatory]

criteria ... ." United States ex rel.

Checkman v. Laird, 469 F.2d 773, 787

(2d Cir. 1972). See also, United States

v. Haughton, 413 F.2d 736 (9th Cir.

1969).

In Crawford v. Cushman, 531 F.2d

is.

1114 (2d Cir. 1976), the Court of Appeals

for the Second Circuit held that upon an

allegation that a military official had

acted beyond his powers, his actions are

reviewable and when a military regulation

sets up what is in effect an irrebuttable

presumption, such presumptions may well

be unconstitutional. Crawford clearly

stands for the proposition that the

Armed Forces must take an individual

approach to the disability of its mem-

bers to determine whether or not such

members, individually, may be involun-

tarily separated from the service. ‘Cee

also, Sanger v. Seamans, 507 F.2d 814,

817 (9th Cir. 1974):

This requirement [of reasons]

is dictated by basic consider-

ations of fairness: The in-

service applicant [for release

because of conscientious objec-

tions] should know the reasons

for the denial of his applica-

16.

tion so that he may be able ef-

fectively to seek judicial

relief . . . Moreover, the re-

viewing court must know the

reasons for the adverse decision

in order adequately to review

the Secretary's decision within

the narrow scope permitted.

The court below determined that it

was "limited to determining whether or

not the Constitution prohibits the Navy

from adopting the rule before us." (App.,

p. 58a) This statement referred to the

Navy's blanket exclusion of homosexual

personnel and the regulatory proceedings

prescribed for separating such persons.

Petitioner had not advanced an argument

tnat homosexual personnel have a Consti-

tutional right to remain in the Armed

Forces. He has maintained that he was

entitled to articulated reasons why he

should not be considered as an exception

to the general policy. This Court is

so a

respectfully urged to grant this Petition

to resolve the conflict with other Courts

of Appeal on the same matter. (See Rule

19 (b), Revised Rules of the Supreme

Court of the United States.)

In addition to the conflict in the

circuits regarding a Constitutional right

to reasoned disposition of an administra-

tive claim by a member of the Armed

Forces, the state cf the law regarding

subject matter jurisdiction of the federal

courts in cases involving administrative

claims by members of the Armed Forces,

is also in serious disarray. In Cray-

erett v. Ferraii, 397 0.8. 3358 (1970),

upon concession by the Solicitor General,

this Court held administrative remedies

to the Boards for Correction of Records,

established under 10 U.S.C. 1552, would

not be required in administrative claims

18.

to conscientious objector status.

In addition to the conflict between

the Ninth Circuit, in the instant case,

not requiring exhaustion to the Board

for Correction of Records, and the

Seventh Circuit in Champagne v. Schles-

inger, et al., supra, the conflict is

further shown by decisions from other

circuits. For example, in Committee

for G.I. Rights v. Callaway, 518 F.2d

466 (D.C. Cir. 1975), and in Hayes v.

Secretary of Defense, 515 F.2d 668 (D.C.

Cir. 1975), the Court of Appeals for the

District of Columbia Circuit held that

exhaustion would not be required in

military administrative cases. In

Hodges v. Calloway, 499 F.2d 417 (5th

Cir. 1974), the United States Court

of Appeals for the Fifth Circuit stated

that that Circuit had long and firmly

|»

eae

adhered to the rule military plaintiffs

must exhaust their remedies to the

Boards for Correction Of Records before

the federal courts would take jurisdic-

tion. 499 F.2q at 420. The Sixth Cir-

cuit appears to adhere to this rule,

Seepe v. Department of the Navy, 518 F,

2d 760 (6th car. 1975), as does the

Second Circuit, Michaelson vy, Herren,

242 F.2d 693 (2nd Cir. 1957). Also in-

Structive on this issue is Nelson y.

Miller, 373 F.2q 474 (3rd Cir. 1967);

Bard yv, Seamans, 507 F.2d 765 (10th Chey

1974); Downen Vv. Warner, 48] F.2d 642

(9th Cir, 1973).

2. The decision below raises impor-

tant questions of federal law that should

be decided by this Court.

This court has never given plenary

consideration to a case where federal

20.

constitutional rights have been claimed to

have been infringed on account of an indi-

vidual's private homosexual conduct. By

its decision upholding the constitution-

ality of the Navy's blanket disqualifica-

tion of persons who have engaged in such

acts, the decision below raises "important

questions of federal law which have not

been, but should be, settled by this

Court." (Rule 19(b), Revised Rules of

the Supreme Court of the United States.)

Numerous decisions by lower federal

courts and by state courts have adjudica-

ted the question of the extent to which

the Federal Constitution may limit state

*/ Boutilier v. INS, 387 U.S. 188 (1967)

decided only that Congress intended to

include homosexuals in the term "psycho-

pathic personality". No serious claim

was made that Congress could not consti-

tutionally exclude homosexuals under the

Immigration and Nationality Act.

ass

or federal sanctions on homosexual

conduct. (See, e.g., Symposium, Sexual

Preference and Gender Identity, 30

Hastings L.J. 799 (1979); Homosexuality

and the Law, 5 J. of Homosexuality 5

(1980)). As the decision below recog-

nized, these cases turned on, or were

perceived to depend upon, whether consen-

sual private homosexual conduct is pro-

tected by the due process or equal pro-

tection clauses of the Federal

Constitution. The case law is in

disarray.

Compare Norton v. Macy, 417 F.2d

1161 (D.C. Cir. 1961) with Singer v.

Civil Service Commission, 530 F.2d 247

(9th Cir. 1976) cert. granted 429 U.S.

1034 (1977) (Federal Civil Service

Regulations); compare Morrison v. State

Board of Education, 1 Cal.3d 214, 461

22.

P.2d 375 (1969) with Gaylord v. Tacoma

School Dist., 88 Wn.2d 286, 559 P.2d 1340

(1977) cert. denied 474 U.S. 879 (1977)

(schoolteachers); compare Gay Law Students

Assoc. v. P.T. & T., 24 Cal.3d 458; 156

Cal.Rptr. 14 (1979) with DeSantis v.

Pacific Tel. & Tel., 608 F.2d 327 (9th

Cir. 1979) (private employment discrimi-

nation); compare People v. Onofre,

N.Y. (1980) with Doe v. Common-

wealth's Attorney, 403 F.Supp. 1199

(E.D. Va. 1975) summarily aff'md 425

U.S. 901 (1976) (constitutionality of

state sodomy statutes); compare In re

Labady, 326 F.Supp. 924 (S.D.N.Y. 1971)

with In re Nemetz, 485 F.Wupp. 470

(E.D. Va. 1980) (naturalization).

Much of the confusion surrounding

application of these important questions

of federal constitutional law has been

23.

exacerbated by the seemingly conflicting

summary affirmance by this Court of Doe

v. Commonwealth's Attorney, supra, and its

footnote reference in Carey v. Population

Services International, 431 U.S. 678, 688

n.17 (1977) that "the Court has not defin-

itively answered the difficult question

whether and to what extent the Constitu-

tion prohibits state statutes regulating

[private consensual sexual] behavior

among adults."

The time is ripe for this Court to

address this question. As Justice

Rhenquist argued in his dissent from the

denial of certiorari in Ratchford v.

Gay Lib, 434 U.S. 1080 (1978):

There is a natural tendency on the

part of any conscientious court

to avoid embroiling itself ina

controversial area of social policy

unless absolutely required to do

so... . . Unlike the District

Court and the Court of Appeals,

24.

Congress has accorded us .. . the

discretion to decline to hear a

case such as this on the merits

without explaining our reasons

for doing so. But the existence

of such discretion does not im-

ply that it should be used as a

sort of judicial storm celler to

which we may flee to escape from

controversial or sensitive cases.

CONCLUSION

For the foregoing reasons the petition

for certiorari should be granted.

Respectfully submitted,

RICHARD P. FOX

DONALD C. KNUTSON

STEPHEN W. PARRISH

Attorneys tor Petitioner

*/ Counsel of Record

ads

APPENDIX

THE DISTRICT COURT OF THE UNITED STATES

NORTHERN DISTRICT OF CALIFORNIA

AGI DENNIS R. BELLER,

Plaintiff,

Vv.

THE HONORABLE J. WILLIAM

MIDDENDORF, SECRETARY OF THE

NAVY: CAPTAIN C. R. WARD,

COMMANDING OFFICER, FLEET

NUMERICAL WEATHER CENTRAL,

MONTERY, CALIFORNIA,

Defendants.

CIVIL

moO. C 75 2747

ORDER

Based upon the Application for Temporary

Restraining Order, Motion for Preliminary

Injunction, Memorandum of Points and Authori-

ties and Affidavit in Support Thereof, and

specifically based upon the irreparable injury

which would result to the Plaintiff herein,

and the lack of apparent injury to the

Defendants herein, as well as the prima facie

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showing of constitutional and statutory

violations of Plaintiff's rights;

IT IS ORDERED the Defendants, their

agents, employees, attorneys, and all

persons subject to their commands and

orders and directives, shall take no

action whatsoever to order Plaintiff to be

discharged or separated from active duty

in the United States Navy, or to other-

wise remove him from the geographical jur-

isdiction of this Court until such time as

Ordered by this Court.

The 8th day of January, 1976.

SPENCER WILLIAMS

UNITED STATES DISTRICT JUDGE

12/29/75

4:45 P.M.

PRESENTED BY:

RICHARD P. FOX

Attorney for Plaintiff

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MAX GEST

Attorney for Plaintiff

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

AGI DENNIS R. BELLER,

Plaintiff,

sb Civil No. 75-2747

THE HONORABLE J. WILLIAM GBH

MIDDENDORF, Secretary of

the Navy; CAPTAIN C.R.

WARD, Commanding Officer,

Fleet Numerical Weather

Central, Monterey,

California,

Defendants.

et ee ee ee ee ee ee ee ee ee ee ee es Ge es es Se

MEMORANDUM OF DECISION

Plaintiff Dennis R. Beller is an

Aerographer's Mate first class on active

duty with the United States Navy and as-

signed to the Fleet Numerical Weather

Station, Monterey, California. Plaintiff

is before the court on his motion for a

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preliminary injunction enjoining the Navy

from administratively discharging him for

unfitness due to homosexual activity.

The court has previously granted

plaintiff's motion for a temporary re-

straining order.

The facts in the case are not disputed.

Plaintiff was born on September 23, 1941.

He enlisted in the United States Navy on

August 19, 1960. From that date until the

present he has maintained an exemplary ser-

vice record, attested to by the numerous

commendatory reports which appear in his

service file.

On August 29, 1972, plaintiff re-en-

listed for a six-year term. In the latter

part of 1975 plaintiff was informed that

the Navy desired to upgrade his security

clearance to permit him access to "Top

Secret" information. During the course

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of a routine background investigation of

plaintiff, Navy personnel discovered that

plaintiff had had contacts with homosexual

groups since entering the navy.

This information was turned over to

the Naval Investigative Service for investi-

gation concerning plaintiff's homosexual

involvement. During said investigation,

plaintiff provided a sworn statement on

September 24, 1975 which recited in perti-

nent part:

Regarding my sexual activi-

ties I first engaged in sexual

activity with males after my

enlistment in the Navy. Since

that time I have engaged in sex

with males. I would not like

to name any people that I have

been engaged with. I have and

do beliv [sic] myself to be bi-

sexual. I have been President

of the Montery Dons Motocycle

Club for 2 years. I have been

in the Gilded Cage, Rightous

[sic] Ram, known to be gay bars.

An administrative discharge board was

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thereupon appointed on October 20, 1975,

and convened on November 18, 1975, to con-

sider plaintiff's possible administrative

discharge by reason of unfitness.

The pertinent regulations here are Bureau

of Naval Personnel Manual [BUPERSMAN] §3420220

(32 C.F.R. §730.12) and the implementing policy

in Secretary of the Navy Instruction

[SECNAVINST] 1900.9A.

The relevant portions of BUPERSMAN

§3420220 provide:

2. Members may be separated by

reason of unfitness with an unde-

sirable discharge or with a more

creditable type discharge when it

is warranted by the particular cir-

cumstances in a given case. A dis-

charge by reason of unfitness, re-

gardless of the attendant circum-

stances, shall be effected only when

directed by or authorized by the

Chief of Naval Personnel.

3. Members may be recommended

for discharge by reason of unfit-

ness for:

e. Homosexual acts. Processing

for discharge is mandatory. (See

SECNAVINST 1900.9 series for con-

trolling policy and additional ac-

tion required in cases involving

homosexuality.)

SECNAVINST 1900.9A sets forth the follow-

ing relevant policy:

Members involved in homosex-

uality are military liabilities who

cannot be tolerated in a military

Organization. In developing and

documenting cases involving homosex-

ual conduct, commanding officers

should be keenly aware that members

involved in homosexual acts are se-

curity and reliability risks who

discredit themselves and the naval

service by their homosexual conduct.

Their prompt separation is essen-

tial. At the same time, every

safeguard must be taken to insure

against unjust action that will

stigmatize an innocent person.

SECNAVINST 1900.9A.4.

The Instruction describes the "degrees of homo-

sexuality" in subsection 4b:

This instruction is not

limited in its application to

"true," "confirmed," or "way of

life" homosexuals. Knowing parti-

cipation in a homosexual act or

strong tendencies toward such

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acts constitutes a sufficient

basis for proceeding hereunder,

and the existence or absence of

prior, similar conduct will be

considered as matter in mitiga-

tion or aggravation.

The Instruction also defines four classes of

homosexual conduct, of which the following

are relevant there:

(2) Class II

(a) Definition. Persons who,

while in the naval service, have

engaged in one or more homosexual

acts, or have attempted homosexual

acts, or have solicited a homosexu-

al act under aggravated conditions,

Or whose acts do not fall in the

categories of Class I, Class III,

or Class IV.

* * * * *

(3) Class III

(a) Definition. Persons who

exhibit, profess, or admit homosex-

ual tendencies, or who solicit a

homosexual act in absence of aggra-

vated circumstances, and whose con-

duct does not come within the cage-

gories of Class I, II, or Class fv.

* * * * *

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Plaintiff was represented by counsel at

the administrative discharge board hearing.

Upon direct examination by his counsel, plain-

tiff characterized himself as "bisexual."

Counsel for plaintiff presented evidence

through plaintiff and other witnesses concern-

ing the fitness of someone with plaintiff's

predilections to honorably serve in the armed

forces.

The administrative discharge board recom-

mended that plaintiff be given an honorable

discharge based upon unfitness. This recom-

mendation was forwarded to the Chief of Naval

Personnel on December 9, 1975. On December 19,

1975, the Chief of Naval Personnel ordered

plaintiff's discharge (honorable) for unfit-

ness, but before plaintiff's local command

completed the discharge action, plaintiff

filed his complaint and was granted a tempor-

ary restraining order by this court.

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Plaintiff's complaint alleges jurisdic-

tion under 28 U.S.C. §§1331 and 1361 and un-

der 5 U.S.C. § 552(a). The complaint alleges

that defendants' conduct amounts to a breach

of his enlistment contract; that the decision

to discharge plaintiff was violative of his

rights to privacy and substantive due process;

and that he is entitled to an injunction

against his separation, a declaration of

rights under his enlistment contract, and

damages for violations of the Privary Act.

Plaintiff further alleges that he has exhaus-

ted all administrative remedies available to

him.

In their opposition to plaintiff's motion

for a preliminary injunction, defendants have

raised several legal issues, each of which is

addressed hereinbelow.

I. Exhaustion of Adminis-

trative Remedies

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Defendants contend that plaintiff must

first seek relief from an available adminis-

trative tribunal, the Board for Correction

of Naval Records [BCNR], prior to seeking ju-

dicial review. Defendants cite cases which

support the BCNR's authority to grant plain-

tiff the full relief requested here as well

as cases which have required exhaustion of

administrative remedies in military discharge

cases.

Plaintiff, on the other hand, argues

that exhaustion is not required where, as

here, the only issue is one of constitutional

law. Plaintiff also relies upon the recent

case Of Rew v. Ward, 402 F.Supp. 331 (D. N.M.

1975), in which the court discussed the inef-

fectiveness of military review boards.

The BCNR exists pursuant to 10 U.S.C.

§1552 and the implementing regulations of

32 C.F.R. §723. Its broad remedial powers

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include the ability to recommend reinstate-

ment, correction of records, and the award of

backpay if appropriate. E.G., Hodges v.

Callaway, 499 F.2d 417, 422 (5th Cir. 1974)

In Champagne v. Schlesigner, 506 F.2d

(7th Cir. 1974), two female seaman apprentices

in the United States Navy admitted to homosex-

ual activity before a field board convened to

consider their dismissal. After the district

court denied the plaintiffs' motion for inter-

im injunctive relief, each woman received a

general discharge under honorable conditions.

On appeal from the district court's grant of

defendants’ motion for summary judgment, the

circuit court addressed the issue of plain-

tiff's failure to exhaust their administra-

tive remedies by seeking relief from the

BCHR.

The plaintiffs in Champagne argued

that review before the BCNR would be futile

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because the applicable Navy policy made dis-

charge for homosexuality mandatory, but de-

fendants responded that there was room under

the regulations for the use of discretion in

individual cases of homosexual conduct. The

appellate court concluded that because plain-

tiffs had already been discharged, and be-

cause of the representations made that the

Navy might adopt a narrowing construction of

its regulation, the district court should

have dismissed the complaint without preju-

dice pending the exhaustion of plaintiffs'

appeal to the BCNR.

Although the Champagne case bears some

resemblance to the instant case, it is dis-

tinguishable in several particulars. First,

the appellate court there noted that little

harm would ensue by requiring plaintiffs

to exhaust, since they had already been dis-

charged. Here, of course, the very motion

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before the court seeks to enjoin discharge.

Second, the defendants in Champagne took

the position that the applicable regulations

did not require mandatory discharge of homo-

sexuals. The court found that requiring ex-

haustion would give the Navy an opportunity

to adopt a narrowing construction of its regu-

lation. The court based this position on a

representation from the Secretary of De-

fense, who was a party therein, that the ap-

plicable regulation did not mandate dis-

charge whenever homosexuality is proved.

In the instant case, however, no such rep-

resentation has been forthcoming, and the

Navy has not taken the position that there

is discretion in the application of the

regulation which might permit the BCNR

"to adopt a narrowing construction." Third,

the court in Champagne placed some reliance

on the fact that one member of the field

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board recommended retention of plaintiffs,

thus supporting the view that discharge

might be permissive only. No such situa-

tion exists here. Fourth and last, the

court in Champagne relied on the facts and

representations before it to find that,

despite its clear language, the regula-

tion might not be mandatory. This court

cannot accord the strong language of the

regulation such a reading: it clearly in-

tends that those engaging in homosexual

conduct will be discharged without excep-

tion.

Although the general rule does require

exhaustion of administrative remedies, it

is subject to several exceptions. One such

exception occurs where the effort to ex-

huast would be futile. See Seepe v.

Department of the Navy, 518 F.2d 760, 762

(6th Cir. 1975). The facts before this

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court indicate that it would be futile for

plaintiff to seek relief before the BCNR,

Since the regulation is absolute on its

face, and defendants have not represented

that there is any leeway in the matter--nor

have defendants cited any authority in

which a contention such as plaintiff's

has been upheld. It is noteworthy, too,

that despite the ostensible opportunity

for the Navy to adopt a narrowing construc-

tion of its regulation in Champagne, there

is no evidence before this court that it

has in fact done so.

Related to the futility argument is

the strong contention that military re-

view boards have simply proved innefective

in granting the kind of review or relief

sought herein. In Rew v. Ward, supra, an

airman sought to have his administrative

discharge from the Air Force declared

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unlawful because of the failure to accord him

certain procedural safeguards. Although the

court found against the plaintiff therein on

the merits, it rejected the contention that

the plaintiff should have first exhausted his

administrative remedy before the Air Force

Board for the Correction of Military Records.

Relying in part on the findings of law

review articles concerning the operation of

military review boards, the court in Rew made

a finding equally applicable herein:

When one scrutines the

specific administrative system

here involved, the Air Force

Board for Correction of Military

Records, in light of the forego-

ing policies, as McKart [v. United

States, 395 U.S. 185 (1969)] in-

structs the court to do, it be-

comes all too apparent that due

to fiscal neclect and the lack

of legislative reford the BCMR

is totally inept at handling with

fairness questions such as those

raised by the plaintiff herein.

402 F.Supp. at 334.

Finally, it must be noted that the only

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issue before this court, and the only one

that could be presented to an administra-

tive board in any event, isa purely legal

One involving constitutional considera-

tions. There is here no question of fact,

or issues concerning the proper application

of military procedure or regulations, mat-

ters more within the competence of the BCNR.

There is a line of authority which rejects

exhaustion where the issues in question are

purely legal and require no exercise of mil-

itary discretion or expertise. See Committee

of GI Rights v. Callaway. 518 F.2d 466 474

(D.C. Cir.1975); Downen v. Warner, 481 F.2d

642, 643 (9th Cir. 1973); Unglesby v. Zimny,

250 F.Supp. 714, 717 (8.D. Ca. 1965). Cf.

3 Davis, Administrative Law Treatise §20.04

at 74 (1958). But see Bard v. Seamans, 507

F.2d 765, 768 (10th Cir. 1974).

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II. Subject Matter

Jurisdiction

Defendants contend that the court lacks

jurisdiction in this matter, except for the

Privary Act allegations. Defendants argue

that no federal question has been alleged to

confer jurisdiction under 28 U.S.C. §1331l,

and that mandamus jurisdiction does not lie

under 28 U.S.C. §1361 because there is no

Clear right in the plaintiff to the relief

sought nor a clear duty by defendants to

provide the same.

Defendants concede that jurisdiction

exists to entertain plaintiff's allegations

of the Privacy Act, 5 U.S.C. §552a, but

they point out that remedies thereunder are

limited to damages and costs, not injunctive

relief. 5 U.S.C. §552a(g) (4).

Certainly a claim under 28 U.S.C.

§1331 will not confer jurisdiction where it

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is frivolous, insubstantial and made merely

to secure federal jurisdiction. Preston v.

Purtell, 410 F.2d 234, 236 (7th Cir. 1969).

The Claims in the instant case, however, are

neither frivolous nor pretextual. Although

the particular applicability of §1331 to

claims such as those now before the court

has not often been expressly passed upon,

numerous cases have assumed jurisdiction

under §1331 in similar contexts. E.g.,

Bard v. Seamans, supra at 767n.3 (§1331

available where jurisdictional amount

properly shown); Mindes v. Seaman, 453 F.2d

197, 200 (5th Cir. 1971); Rew v. Ward,

Supra at 333n. 7; Baldauf v. Nitze, 261

F.Supp. 167, 168 (S.D. Cal. 1966); Lundig,

"Judicial Review of Military Administra-

tive Discharges," 83 Yale L. J. 33, 62

(i973); See also Murray v. United States,

154 Ct. Cl. 185 (1961), a case similar to

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the instant one in several respects. Cf.

Reed v. Franke, 297 F.24 17, 21 (4th Cir.

1961) (relied upon generally equity juris-

diction).

The language of 28 U.S.C. §1361 has

been construed to mean that mandamus will

not lie unless the claimed duty imposes a

mandatory or ministerial Obligation; if

the claimed duty is discretionary or direc-

tory, the duty is not "owed." Short v.

Murphy, 512 F.24 374, 377 (6th Cir. 2975)