# Petition — Beller v. Lehman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1343%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 905 ## Text 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 22 15 a5 18 Miscellaneous Homosexuality and the Law, 5 J. of Homosexuality 5 (1980) Symposium, Sexual Preference and Gender Identity, 30 Hastings L.J. 799 (1979) -vi- 22 22 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 2. 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 4. 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. 6. 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 Ve 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 8. 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. te 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 -la- 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 -2a- MAX GEST Attorney for Plaintiff -3a- 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 -4a- 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 -5a- 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 -6a- 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 -8a- 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. * * * * * -9a- 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. -l0a- 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 -lla- 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 -l2a- 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 -l3a- 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 -l4a- 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 -15a- 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 -l6a- 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 -liva- 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 -18a- 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). -19a- 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 -20a- 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 -2la- 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) See also Lundig, "Judicial Review of Military Administrative Discharges," Supra at 64, Although the Ninth Circuit found in Jarrett v. Resor, 426 F.2q4 ai3, 216 (9th Cir. 1970) that mandamus would not lie to compel the plaintiff's dis- Charge from the Military as a conscien- tious objector, other cases have found Jurisdiction under §1361 where there is -22a- a challenge to a court martial., Baker v. Schlesinger, 523 F.2d 1031, 1035 (6th Cir. 1975); Angle v. Laird, 429 F.2d 892 (10th Cir. 1970), cert. den., 401 U.S. 918 (1971); Ashe v. McNamara, 355 F.2d 277 (lst Cir. 1965), and there is authority for finding jurisdiction under §1361 in the instant case. See Rew v. Ward, supra at 333n.7; Dowler v. Schlesinger, 384 F.Supp. 39, 41 (D. Md. 1975) (reserve officer on active duty in Air Force sought a preliminary injunction against his involuntary separation due to a Congressionally-mandated reduction in force). Defendants argue in the alternative that plaintiff's claim is merely one for breach of contract, and that as such jur- isdiction lies exclusively in the Court of Claims under 28 U.S.C. §§1346(a) (2) and 1491. -23a- Plaintiff's allegation of breach of contract is clearly not at the heart of his case, and in any event it has been held that the Court of Claims is the ex- clusive forum only where a claim for money forms the crux of a case, which is not the situation here. The cases cited by defendants all concern a claim for backpay and a finding that the com- plaint is essentially one for a money judgment. See Mathis v. Laird, 483 F.2d 943 (9th Cir. 1973); Carter v. Seamans, 411 F.2d 767, 771-772 (5th Cir. 1969), cert. den., 397 U.S. 941 (1970); Parrish v. Seamans, 343 F. Supp. 1087, 1093-1094 (D. S.C. 1972), affirmed, 485 F.2d 571 (4th Cir. 1973). Carter and Parrish were thus distin- guished in Melvin v. Laird, 365 F.Supp. -24a- 511 (E.D. N.Y. 1973). The court in Melvin found that although today both the dis- trict court and the Court of Claims can issue monetary and non-monetary judgments, this Coes not render Court of Claims juris- diction exclusive: The legislative background, however, leaves little doubt that the added powers of the Court of Claims to grant in- cidental relief were in no way intended to oust the jur- isdiction of the district courts to act pursuant to its mandamus and delcaratory judgment powers. [Citations omitted.] 365 F.Supp. at 518. The Court went on to note that in the only two cases where district court jurisdiction had been declined, Carter and Parrish, monetary relief was at the heart of the claim, whereas in the case before it that was not true. Id. at 520. Here, too, the primary relief sought is not merely monetary, and so Carter-Parrish -25a- cannot be considered to oust this court from its otherwise proper jurisdiction in favor of that in the Court of Claims. III. The Propriety of a Preliminary Injunction It is well established that in order to obtain a preliminary injunction the moving party must demonstrate the existence of the: following factors: A) Irreparable injury in the absence of preliminary relief, i.e. no adequate legal remedy; B) Absence of substantial harm to others if relief is granted; C) Compatability of the relief reques- ted with the public interest; and D) A strong showing of probable success on the merits. See MacKay v. Hoffman, 403 F.Supp. 467, 470 DO. Des 1975). -26a- A. Irreparable Injury Defendants argue that plaintiff has not shown that he will be irreparably injured if he is discharged because the temporary loss of income, which can be remedied upon a showing of wrongful discharge by reinstate- ment and the award of backpay, is not irrep- arable injury. Defendants rely here on Sampson v. Murray, 415 U.S. 61 (1974), taints the plaintiff, a probationary civil service employee, sought to enjoin her dis- charge from employment pending an administra- tive appeal to the Civil Service Commission. The district court granted the temporary re- lief sought and the court of appeals affirmed. The Supreme Court reversed, finding that Murray had failed to show the existence of irreparable injury. No witnesses had been heard on that topic, the complaint was -27a- unverified, and the plaintiff's affidavit did not discuss such injury. Id. at 88. The Supreme Court concluded that neither the tem- porary loss of income nor the allegation of damage to reputation nor both together consti- tuded such irreparable injury as to support the grant of injunctive relief in the case before it. Id. at 89-92. Ina footnote, the Court expressed a possible limitation upon its ruling: We recognize that cases may arise in which the circumstan- ces surrounding an employee's discharge, together with the resultant effect on the em- ployee, may so far depart from the normal situation that irreparable injury might be found. Such extraordinary cases are hard to define in advance of their occurrence. We have held that an insuffi- ciency of savings or difficul- ties in immediately obtaining other employment--external factors common to most dis- charged employees and not at- tributable to any unusual ac- tions relating to the discharge -28a- itself--will not support a find- ing of irreparable injury, how- ever severely they may affect a particular individual. But we do not wish to be understood as foreclosing relief in the genu- inely extraordinary situation. *** Id. at 92n.68. Subsequent cases have attempted to limit the reach of Sampson still further. Thus the court in Marsden v. United States Postal Service, 390 F.Supp. 329, 337 (D. Minn. 1974) distinguished Sampson on the basis that the plaintiff before it was a veteran and not a probationary employee, and that Sampson dealt with a factual issue while it was concerned solely with a legal one. In American Fed. of Gov. Employees Loc. 1858 v. Callaway, 398 F.Supp. 176, 193-194 (N.D. Ala. 1975), the plaintiffs were Army civil service employees who moved for a preliminary injuction to prevent the Army from effecting a reduction in force at an -29a- Alabama missile installation. The district court granted plaintiffs' motion for prelim- inary injunction, and in so doing distin- guished Sampson and found suffic’ent irrep- arable injury. Unlike the situation in Sampson, the court in American Federation had received a great deal of testimony dem- onstrating numerous examples of irreparable injury to the plaintiffs. Id. at 193. The court also noted that the plaintiffs before it were more than probationary em- ployees, and that at least some of the plaintiffs would be unable to later re- cover backpay or damages. Id. at 194n.3. Finally, the court found that, despite the ruling in Sampson, no irreparable injury need be shown where there exists a valid constitutional claim of a protected property right. Id. at 195. -30a- Despite the decisions in Marsden and American Federation, we think the present Situation is governed by Sampson and the recent case of MacKay v. Hoffman, supra, wherein the court denied temporary injunc- tive relief to a reserve captain in the United Stat-s Army who was to be adminis- tratively separated from active duty by reason of his nonselection for promotion. The Court found that the plaintiff car- ried a burden heavier than ususal because he sought to compel the United States to keep him in its employ during the pendency of his lawsuit. The court denied plain- tiff's motion for a preliminary injunc- tion, finding that his relief from active duty prior to a resolution of his adminis- trative appeal would not amount to irrep- arable injury. Here, too, plaintiff has failed to -3la- demonstrate that the injury he may suffer is "irreparable," since, as discussed} above, he can be fully compensated for his losses if he eventually prevails on the merits of his claim. ; Nor is plaintiff irreparably injured by receiving an honorable discharge, albeit for unfitness. The cases recognize that because most discharges are honorable, anything less than an honorable discharge stigmatizes the recipient and is punitive in nature. Denton v. Secretary of Air Force, 483 F.2d 21, 23n. 2 (9th Cir. 1973); Unglesby v. Zimny, supra at 717. Yet plaintiff herein has received an honorable discharge, and the law does not support a finding of stigmatization under this circumstance. See Heisel v. Chalbeck, 405 F.Supp. 361, 362 (M.D. Fla. 1976). Plaintiff contends that since his -32a- discharge is for unfitness--homosexuality-- his job opportunities will be jeopardized, but he has not presented proof in support of this contention. In any event, if plaintiff eventually succeeds on the merits of his claim, whether in this court or some other forum, he can be made whole and returned to the status he desires; the revelation of his sexual conduct, however, is a fait accompli and cannot be undone no matter what this court rules. If, on the other hand, plaintiff does not succeed on the merits, then he can complain of no legal injury by reason of his aischarge, since his challenge is to the fact rather than the characterization of his discharge. Therefore, plaintiff will not be irreparably injured within the meaning of the law if the prayed-for preliminary injuction is not granted. -33a- B. Harm to Others No evidence is before the court of any particularized harm that would befall others whether plaintiff's motion for a preliminary injunction is granted or not. C. Public Interest Defendants contend that to retain plain- titz in the Navy in his present uncertain Status would disrupt personnel planning and assignment and would prompt others to disre- gard military regulations. Defendants also claim that since plaintiff has been found unfit for ei iscary service, the Navy would be harmed if he were retained. As an individual case, it would appear that the harm to be suffered by the Navy were the plaintiff retained is less than that to be suffered by the plaintiff upon his discharge. But there is a larger inter- est at stake here, for if the court accepts -34a- the policy considerations stated in SECNAVINST 1900.9A, a decision for the plaintiff on the merits herein would jeopardize the Navy's desire for stability and reliability as ar- ticulated in its provisions on homosexuality. To what extent that desire is achieved is discussed infra. D. Success on the Merits The central question in an application for a preliminary injunction concerns the likelihood of the movant's ultimate success on the merits. Two of plaintiff's three claims can be quickly disposed of. The claim under the Privacy Act has not been established to the court's satis- faction, and, as found hereinabove, in no event would that claim entitle plaintiff to the injunctive relief which is the sub- ject of his motion now before the court. -35a- Plaintiff has also attempted to state a claim for breach of his enlistment contract, but under the applicable authority he has failed to demonstrate a likelihood of suc- ceeding on this claim. See Waller v. United States, 451 F.2d 1273, 1276 (Ct.Cl. 1972); Lowell v. Keef, 185 Ct.Cl. 454, 463-464 (1968); Dowler v. Schlesigner, supra at 42. Plaintiff's third and most substantial claim is summarized in paragraph 21 of his complaint: The decision to separate Beller was in violation of his statutory rights, as well as his constitutional rights to privacy and to due process of law. Specifically, the Navy's defi- nition of "homosexual" are [sic] violative of substantive due process of law, in that the Navy's definition of this term would include any member of the Navy who has ever even patted affectionately a member of the same sex. Defendants correctly point out that the decision to discharge administratively is -36a- a discretionary one. The authority to discharge a regular englisted member of the Navy is granted by 10 U.S.C. §§1169. The Navy has promulgated regulations, such as those cited hereinabove, with respect to discharges based on unfit- ness. Such regulations have the force of law. Rehart v. Clark, 448 F.2d 170, A739 (9th Cis. i973). Normally, military discretionary decisions are judicially reviewable only in the following limited circumstances: to determine whether the procedures em- ployed by the military comport with the requirements of procedural due process; and to determine whether the military has acted within its legal jurisdic- tion. See Hoersch v. Froehlke, 382 F.Supp. 1235, 1239n.21 (B.D. Pa. 1974). The standard or review is whether the -3/a- military's decision is "arbitrary and capricious" or "unsupported by substan- tial evidence." Sanford v. United States, 399 F.2d 693, 694 (9th Cir.) Plaintiff does not challenge the authority of the Navy to adopt and en- force regulations pertaining to admin- istrative discharge for members engaged in homosexual conduct. Plaintiff's attack here is limited to the allegation that the definition of proscribed homo- sexual conduct in SECNAVINST 1900.9A in- cludes isolated and innocuous conduct; i.e., the definition is either too vague, or too broad, or both. The doctrine of vagueness incorpor- ates notions of fair notice or warning. Smith v. Goguen, 415 U.S. 566, 572-573 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108 passim (1972). A -38a- statute will be considered constitutionally vague if the meaning provided by its termin- ology and syntax is not sufficiently under- standable to the average person so as to in- form him of his rights and duties under the law. Medrano v. Allee, 347 F.Supp. 605, 621 (S.D. Tex. 1972), modified 416 U.S. 802 (1974). Plaintiff does not dispute the Navy's finding of his homosexuality following his admission thereof, and there is no real question about his knowledge and under- standing of what activity constituted homo- sexual conduct within the proscription of the Navy's regulations. Under these cir- cumstances the plaintiff lacks standing to challenge the application of the Navy's regulation to the hypothetical conduct of others, since he is well within its pro- hibitions. See Parker v. Levy, 417 U.S. - 39a- 733, 756 (1974); Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973); Walker v. Dillard, 523 F.2d 3, 5n.6 (4th Cir. 1975); Big Eagle v. Andera, 508 F.2d 1293, 1297 (8th Cir. 1975); Glines v. Wade, 401 F.Supp. i286, i3in.5 (W.D. Ca. 1975). A second but related doctrine is that of overbreadth. A statute will be deemed overbroad if it sweeps too far and includes constitutionally a eahiieicid conduct within its prohibition. See Grayned v. City of Rockford, supra at 114. Under certain cir- cumstances a plaintiff may raise the over- breadth challenge without demonstrating that his own conduct in issue and within the proscription of the statute could not constitutionally be regulated by a statute more narrowly drawn. See Grayned v. City of Rockford, supra; Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); United States v. -40a- Dellinger, 472 F.2d 340, 356 (7th Cir. 1972), cert. den., 410 U.S. 970 (1973). Under the facts of this case, however, plaintiff's claim of overbreadth must fall. In Parker v. Levy, supra, the Supreme Court upheld certain provisions of the Uniform Code of Military Justice for the violation of which Levy had been convicted by court martial. The Supreme Court rejec- ted Levy's attack on the provions for vague- ness, and concluded in pertinent part on his challenge for overbreadth: While the members of the mili- tary are not excluded from the protection granted by the First Amendment, the different charac- ter of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposi- tion of discipline, may render permissible within the military that which would be constituion- ally impermissible outside it. 417 U.S. at 758. * * * * * * -4la- In the First Amendment context, attacks have been permitted on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow speci- ficity. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). Id. at 759. This Court has, however, repeatedly expressed its reluc- tance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Id. at 760. Here, too, we deal with conduct rather than speech, and plaintiff does not main- tain that there is not a wide range of con- duct which is properly proscribed by the Navy's regulation on homosexuality. In addition, recent case law has re- emphasized the special domain of the mili- tary and the fact that military exigencies May require regulation different from that tolerated in the civilian sphere. E.g., -42a- Greer v. Spock, .8. , 44 U.S. Law Week 4380 (March 24, 1976); Middendorf v. Henry, U.S. , 44 U.S. Law Week 4401 (March 24, 1976). This court's conclusion that plaintiff has failed to demonstrate a strong likeli- hood of eventual success on the merits of his claim is not intended to laud the Navy's regulations or conduct with respect to those found to have engaged in homosexual conduct. The Navy evidently shares the view taken by at least one court that ". . . the fac- tors of emotional instability and possible subjection to sinister pressures and influ- ences. . . have traditionally been the lot of homosexuals ... ." Adams v. Laird, 420 F.2d 230, 239 (D.C. Cir. 1969), cert. den., 397 U.S. 1039 (1970). But there is real question as to the empirical basis for the belief that those -43a- who have engaged in homosexual conduct are unduly subject to "Sinister pressures and influences." See Comment, "The Homosexual's Legal Dilemma," 27 Ark. L. Rev. 687, 703-704 (1973); Comment, "Homosexuals in the Mili- tary," 37 Fordham L. Rev. 465, 473 (1969). If this court can accept the results of the Kinsey Study, as cited in Norton v. Macy, 417 F.2d 1161, 1167n.28 (D.C. Cir. 1969), then it may be safely assumed that large numbers of men who have been or are now in the military have engaged in proscribed homosexual conduct, yet there is no evi- dence that a disproportionate number of those members found to be disloyal or in- efficient were also found to have engaged in homosexual conduct. Indeed, if the Navy is serious about Minimizing security and reliability risks, it would more logically encourage those -44a- who have fallen afoul of its regulations on homosexuality to admit that fact without fear or discharge or other reprisal. It is difficult to evaluate how well- founded is the Navy's view that those who engage in homosexual conduct are more sus- ceptible to blackmail for that reason. It would seem more reasonable to believe that if, as the Navy posits, the great majority of its members are heterosexual, then there is a graver danger of blackmail from illi- cit heterosexual than from homosexual liasons. The Navy would do well to re-evaluate its stance regarding homosexual conduct in the same manner that other governmental concerns have. See, e.g., Singer v. United States Civil Service Commission, F.2d (9th Cir. January 12, 1976) (noting changes in attitude by Civil Service -45a- Commission towards homosexuality); Norton v. Macy, supra; Society for Individual Rights, Inc. v. Hampton, 63 F.R.D. 399 (N.D. Ca. 1973). The emerging learning of these cases--and of current psychiatric thought-- is that there is no basis for homosexuality or homosexual conduct per se disqualifying one from positions of trust and responsibil- ity; rather, the inquiry should be as to one's fitness for his position without re- gard to his sexual orientation. The Navy does itself and the public little good by removing an experienced and able serviceman such as plaintiff from its ranks, and it should seriously consider what interest is furthered by its decision to do so. -46a- Conclusion For the foregoing reasons, plaintiff's n for a preliminary injuction is here- motio by denied. It is so ordered. pated: April 14, 1976 United States District Judge -47a~- IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AGI DENNIS R. BELLER, Plaintiff, Civil No. 75-2747 GBH Vv. THE HONORABLE J. WILLIAM MIDDENDORF, Secretary of the Navy; CAPTAIN C. R. WARD, Commanding Officer, Fleet Numerical Weather Central, Monterey, California, Defendants. eee eee eee eee eee ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT This matter arises from a complaint filed herein on December 29, 1975 by which plaintiff challenged the Navy's decision to administratively discharge him for un- fitness because of homosexual conduct. The complaint alleged jurisdiction under -48a- 28 U.S.C. §§1331 and 1361 and under 5 U.S.C. §552(a) [sic]. The complaint fur- ther alleged that defendants' conduct amounted to a breach of plaintiff's en- listment contract; that the decision to discharge plaintiff was violative of his rights to privacy and substantive aue process; and that he was entitled to an injunction against his separation, a declaration of rights under his enlist- ment contract, and damages for violation of the Privacy Act. | Upon motion by the plaintiff, this court granted a temporrary restraining order and issued an order to show cause why a preliminary injunction should not issue. Following the submission of briefs by the parties and oral argument on the matter, the court denied plaintiff's -49a- motion for a preliminary injunction in its MEMORANDUM OF DECiSION filed on April 15, 1976. The court expressed serious doubt about the wisdom of the Navy's policy concerning homosexuality, but concluded that plaintiff was not entitled to a preliminary injunction because he had failed to demonstrate irreparable injury or a reasonable likelihood of success on the merits within the teaching of the pertinent cases. Defendants have now moved for summary judgment on the same issues which were the subje~t of this court's analysis in its MEMORANDUM OF DECISION. I. Breach of Plaintiff's Enlistment Contract Plaintiff's first claim for relief rests on the allegation that the Navy's -50a- decision to discharge him was a breach of his contract of enlistment. There are no factual disputes on this issue, and as a matter of law plaintiff's claim must fail. See MEMORANDUM OF DECISION at 18. II. Violation of Plaintiff's Right to Due Process Plaintiff's second claim is that the Navy's definition of prescribed homosexual conduct in SECNAVINST 1900.9A is violative of his rights to substantive due process. On pages 19-22 of its MEMORANDUM OF DECISION, the court discussed and rejected plaintiff's contention that SECNAVINST 1900.9A was either unconstitutionally vague or overbroad or both. Plaintiff's constitu- tional attack on this regulation is further undercut by the Supreme Court's recent deci- sion in Doe v. Commonwealth's Attorney, 425 -5la- U.S. 901 (1976), affirming 403 F.Supp. 1199 (E.D. Va. 1975). III. Damages under the Privacy Act Plaintiff's final contention is that he is entitled to damages under the Privacy Act, 5 U.S.C. §552a. As defendants point out, however, subsection (b) thereof pro- vides: (b) Conditions of Disclosure.-- No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior consent of, the individual to whom the record pertains, unless disclo- sure of the record would be-- (a) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties. The information which was passed intra- agency in this case clearly falls within the "need to know" exception contained in 5 U.S.C. -52a- §552a(b) (1). See 40 Federal Register 37570 (1975) for proposed 32 C.F.R. §701.107, the implementating regulation for this excep- tion with respect to the Department of the Navy. Certainly plaintiff's commanding officer had a "need to know" that plaintiff had admitted to conduct which served as a basis for discharge due to unfitness under Navy regulations. Accordingly, the motion of defendants for summary judgment in their favor is here- by granted. It is so ordered. Dated: December 3, 1976 United States District Judge -53a- IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA | ) AGI DENNIS R. BELLER ) ) vs. )Civil Action File )No. C75-2747 GBH THE HONORABLE J. WILLIAM ) MIDDENDORF, etc., et al ) JUDGMENT ) This action came on for hearing before the Court, Honorable George B. Harris, United States District Judge, presiding, and the issues having been duly heard and a deci- sion having been rendered, It is Ordered and Adjudged that the motion of defendants for summary judgment in their favor is hereby granted. Dated at San Francisco, California, this -54a- 3rd day of December, 1976. William L. Whittaker Clerk of Court -55a- UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AG1 DENNIS R. BELLER, Plaintiff-Appellant, Vv. THE HONORABLE J. WILLIAM MIDDENDORF, Secretary of the Navy, et al., Defendants-Appellees. JAMES LEE MILLER, Plaintiff-Appellant, Vv. DONALD H. RUMSFELD, Secretary of Defense, et al Defendants-Appellees. MARY ROSEANN SAAL, Plaintiff-Appellee, Vv. J. WILLIAM MIDDENDORF, Secretary of the United States Navy, in his official -56a- ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) -) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 77-1354 No. 77-1671 No. 77-2461 OPINION Capacity, ) ) Defendant Appellant.) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Submitted 11/8/78 Before: BROWNING and KENNEDY, Circuit Judges, and CHRISTENSEN, * District Judge. Kennedy, Circuit Judge: Although the factual and procedural settings of these three consolidated appeals differ, the broad outlines are Similar: an enlisted person in the Navy, with an otherwise fine performance record, admitted engaging in homosexual acts, conduct prohibited by Navy regulations. Following proceedings before an adminis- * Honorable A. Sherman Christensen, Senior United States District Judge for the District of Utah, sitting by designation. -S/a- trative discharge board and review by the Secretary of the Navy, each was ordered discharged. Plaintiffs raise constitu- tional challenges ‘to the Navy's regulations and proceedings. We recognize that to many persons the regulations may seem un- wise, but if that be the case the politi- cal branches of the Government, which most certainly are on notice of the con- troversy here or in similar cases, have the right and the prerogative to declare a different policy. Our role is more con- fined. We are limited to determining whether or not the Constitution prohibits the Navy from adopting the rule before us. We cannot say that constitutional limi- tations have been exceeded here, and therefore we do not find the regulation is invalid. We first state the relevant facts of -58a- each case, relying extensively on the respective district court opinions. a Saal Plaintiff Mary Saal enlisted in the United States Navy on December 17, 1971. Following training she was assigned as an air traffic controller at Alameda Naval Air Station. In January 1972 she entered into a three-year enlistment contract. In March 1973, after an investigation by the Navy into plaintiff's activities, she signed a statement admitting homosexual relations with another Navy member assigned to the Air Operations Department. There- after, administrative proceedings to separate plaintiff were instituted pur- Suant to Navy regulations. An administra- tive discharge board was convened on July 6, 1973, and, after a hearing, it -59a- recommended on the basis of plaintiff's admitted homosexual activity that she should be separated from the service with a general discharge. At the hearing Saal admitted to having had homo- sexual relations since her March statement and indicated that she intended to continue her homosexual relationship. This action was filed on July 27, 1973, seeking injunctive relief to prevent the Navy from discharging plaintiff for her homosexual activity as well as damages for back pay and lost promotional opportuni- ties. In August 1973, the district court granted preliminary injunctive relief staying the discharge pending a decision on the merits. In November 1973, the Chief of Naval Personnel notified plaintiff that he had directed her separation with a general discharge, although the discharge -60a- remained stayed by court order. In January 1974, defendant moved for summary judgment contending that (1) plaintiff had failed to exhaust her administrative remedies, (2) the administrative hearing accorded plaintiff satisfied due process, and (3) the discharge was lawful. Om July 10, 1974, the district court denied the motion, rejecting the first contention and holding that the other two contentions were not ripe for disposition by summary judgment. With the term of her enlistment con- tract nearing its end, plaintiff in September 1974 submitted a written re- quest for extension to her commanding officer in accordance with Navy regula- tions. The commanding officer, aware of the pending litigation and not wanting to take action which might affect -6la- it, forwarded the request without recommen- dation to the Chief of Naval Personnel, the final authority in such matters, and asked for advice. On December 12, 1974, the Chief of Naval Personnel replied by denying plaintiff's request for extension and ordering her separation with an honor- able discharge upon expiration of her en- listment. The prior directive ordering her discharge by reason of unfitness was cancelled and her discharge was "charac- terized as warranted by the average performance evaluation marks which have been earned during her period of service." At the same time, plaintiff was assigned a reenlistment code of RE-4, which designates a person as ineligible for reenlistment. Plaintiff's enlistment expired on January 6, 1975. Defendant immediately moved to dismiss this action as moot. -62a- By order dated August 19, 1975, the dis- trict court granted the motion, lifted the prior stay order (thereby permitting issuance of an honorable discharge to plaintiff), but gave plaintiff leave to file an amended complaint. On August 22, 1975, plaintiff was discharged from the Navy. On September 15, 1975, she filed her first amended complaint in which she contended she was deprived of due process by reason of having been rendered ineligi- ble for reenlistment under Instruction 1900.9A. In the amended complaint plain- tiff sought declaratory, injunctive, and monetary relief. The district court granted partial summary judgment for Saal, holding due process requires that plain- tiff's application for extension of ser- vice or reenlistment receive the same consideration as that of other Navy -63a- personnel similarly situated without re- ference to policies or regulations substantially mandating exclusion or processing for discharge of persons who engage in homosexual activity. Saal v. Middendorf, 427 F. Supp. 192 (N.D. Cal. 1977). Miller Plaintiff James Miller, currently a Yeoman Second Class, enlisted ir. the Navy in February 1965. He had reenlisted twice, the most recent reenlistment being in 1972 for a period of six years. Asa result of an unrelated incident, a Naval Investigative Service (NIS) inquiry began in 1975, and in an interview with the NIS investigator, after being advised of his rights, plaintiff admitted that he had participated recently in homosexual acts with two Taiwanese natives while he was -64a- stationed in Taiwan. Pursuant to orders issued prior to the institution of the NIS investigation, plaintiff was transfer- red to the USS ORISKANY at Alameda, California. He served on board for over one year and was given a Secret clearance by his commander, who had knowledge of the NIS investigation. On April 12, 1976, a hearing board was convened to consider Miller's discharge for homosexuality. The board heard testimony from the NIS investigator, several witnesses as to Miller's good character and service in the Navy, ni Miller on his own behalf. It found that plaintiff had admitted to committing homosexual acts during his assignment in Taiwan, but nevertheless recommended, by vote of two to one, that plaintiff be retained in the Navy. The dissenting mem- -65a- ber of the board voted that plaintiff be administratively discharged under honora- ble conditions. Plaintiff was subsequently examined by the Senior Medical Officer who found that despite plaintiff's admitted homosexual episodes, he did not appear to be "a homosexual," and that he found no evidence of psychosis or neurosis. The medical officer recommended retention. The convening authority, the Commanding Officer of the USS ORISKANY, then forwarded the board proceedings to the Chief of Naval Personnel and recommended that plaintiff be retained in the Navy. The Assistant Director of the Enlisted Performance Division recommended that plaintiff be separated with a General Discharge under honorable conditions by reason of misconduct, for his admitted participation in in-service homosexual -66a- acts. That recommendation was approved by the Assistant Secretary of the Navy and plaintiff was then scheduled for separa- tion on June 23, 1976. On that date, Miller brought suit in the district court, asking that his dis- charge be restrained and in the alternative that he be given not less than an honora- ble discharge. The Chief of Naval Personnel subsequently ordered Miller separated with an honorable discharge, but this discharge was stayed by the district court until, relying largely on its decision in Beller, it granted summary judgment for the Navy. This court, however, stayed Miller's discharge pending disposition of this appeal. Miller has been retained in the Navy pursuant to this court's order. He currently works for the Commanding Offi- -67a- = cer, Enlisted Personnel, Treasure Island. His commanding officer there requested *hat the Navy retain him. Miller has tried to reenlist; the Navy denied his application. Beller Plaintiff Dennis Beller enlisted in the United States Navy in 1960. On August 29, 1972 he reenlisted 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 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 forwarded to the -68a- Naval Investigative Service. Plaintiff provided investigators a sworn statement which recited in pertinent part: Regarding my sexual activities I first engaged in sexual activi- ty 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 Monterey Dons Motorcycle Club for 2 years. I have been in the Gilded Cage, Rightous [sic] Ram, known to be gay bars. An administrative discharge board was thereupon convened to consider plain- tiff's possible administrative discharge by reason of unfitness. The board recom- mended an honorable discharge based upon unfitness. This recommendation was forwarded to the Chief of Naval Personnel, who ordered plaintiff discharged on December 18, 1975. Beller brought suit in the district court, seeking an injunction -69a- reventing the Navy from involuntarily discharging him, an injunction directing the Navy to expunge from service records and all other files maintained on Beller any reference to the administrative board or his separation from the Navy as a homo- sexual, declaratory relief to the effect that he is serving under a valid enlist- ment contract, and damages for violation of the Privacy Act. The district court granted a temporary restraining order preventing discharge, but eventually it denied plaintiff's motion for a prelimi- nary injunction and entered judgment for the Navy. The Navy then separated Beller with an honorable discharge based upon unfitness. Since discharge, Beller has remained a civilian. He has not applied for reenlistment. The delays inherent in securing appel- -70a- late review, and the shifting, at times seemingly inconsistent, position of the Navy with regard to several issues in this case, have combined to produce several difficult threshold issues. We address these issues in the context of Saal's case and then apply ovr analysis to Beller and Miller. Saal A. Subject Matter Jurisdiction 1. The District Court's Opinion In its motion for summary judgment, the Navy argued that the district court lacked jurisdiction because the amount in controversy did not exceed $10,000. In the alternative, the Navy contended that if the damages sought by Saal did exceed $10,000, the Court of Claims had exclusive jurisdiction. See 28 U.S.C. +7la- § 1491. The district court held Saal had alleged with sufficient certainty that the amount in controversy exceeded $10,000. It also held that it had jurisdiction over all of her various claims for relief under 28 U.S.C. § 1331, since "plaintiff's claim arises under the Fifth Amendment of the Constitution." The court noted that Davis v. Passman, 544 F.2d 865 (5th Cir. 1977), and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), supported a right of action for damages under the fifth amendment and were “authority for the existence of jurisdiction here." 427 F. Supp. at 196 n.2.* In granting partial summary judgment for Saal, how- ever, the court addressed itself only to Saal's requests for declaratory and in- junctive relief. See 427 F. Supp. at 203. -/2a- It stated, "The present record does not permit disposition of [Saal's] claim for damages and other relief." Id. at 195. 2. The Jurisdictional Amount Require- ment The congressional abolition of the jurisdictional amount requirement for suits brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity applies to this case.” Therefore, it is not essential to the district court's jurisdiction under 28 U.S.C. § 1331 that the amount in controversy exceed $10,000. Andrus v. Charlestore Stone Products Co., 436 U.S. 604, 607-J8 n.6 (1978). See also National Treasury Employees Union v. Campbell, 589 F.2d 699, 677 & n.19 (D.C. Cir. 1978) and cases cited therein. Al- though it is unnecessary for us to address the issue fully, mandamus jurisdiction -73a- might also be appropriate in these cases, see benShalom v. Secretary of the Army, No. 78-C-431, slip op. at 3-4 (E.D. Wis. May 20, 1980) and cases cited therein. 3. Sovereign Immunity As the court said in Neal v. Secretary of the Navy, 472 F. Supp. 763, 770 (E.D. Pa. 1979), "[{t]he legal principles which define the contours cf the doctrine of sovereign immunity are far from clear." In general, "(t]he United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of con- sent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941). See also United States v. Testan, 424 U.S. 392 (1976). Unless sovereign immunity has been waived or does not apply, it bars equitable as -74a- well as legal remedies against the United - States. Jaffee v. United States, 592 F.2d 712, 717 n.10 (3d Cir. 1979), citing Malone v. Bowdoin, 369 U.S. 643 (1962); Midwest Growers Co-op Corp. v. Kirkemo, 533 F.2d 455, 465 (9th Cir. 1976). See generally K. Davis, Administrative Law Treatise Ch. 27 (1958 & Supps. 1970); K. Davis, Admin- istrative Law of the Seventies Ch. 27 (1976 & Supp. 1980); 1 Moore's Federal Practice 4 0.65[2.-1 to 2.-3] (2d ed. 1979); C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3655 (1976). Saal's suit is against defendant Middendorf in his official capacity. ° We must first determine whether sovereign immunity bars Saal's claims for equitable relief. In Glines v. Wade, 586 F.2d 675 (9th Cir. 1978), rev'd on other grounds sub -75a- nom. Brown v. Glines, 48 U.S.L.W. 4095 (January 21, 1980), plaintiff Glines, a Captain in the Air Force Reserves on active duty, violated a regulation re- quiring him to obtain approval from his commander before circulating petitions on Air Force bases. As a result of his unauthorized activities, Glines was re- moved from active duty and reassigned to the standby reserves, with adverse financial consequences. This court con- cluded the regulations violated Glines' first amendment rights. It then held that "the district court was correct in declaring the regulations void, enjoining their enforcement, and ordering Glines reinstated in a status that is consistent with his status before he was relieved from active duty." 586 F.2d at 681. The court held that sovereign immunity -76a- did not bar the district court from awarding this nonmonetary relief: [In] actions claiming that a government official acted in violation of the Constitution or of statutory authority . . . Con- gress has either waived sovereign immunity or the doctrine does not apply. 5 U.S.C. § 702; Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-91 (1949); Hill v. United States, 571 F.2d 1098, 1102 (9th Cir. 1978); 14 Wright, Miller, and Cooper, Federal Practice and Procedure § 3655 (Supp. 1977). 586 F.2d at 681. The waiver of sovereign immunity found by the court was an amendment to the Administrative Procedure Act. The amend- ment provided in part: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity Or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States -7Ja- is an indispensable party. 5 vu.S.C. § 702. In Hill v. United States, 571 F.2d 1098 (9th Cir. 1978), an action brought in the district court under the Tucker Act, 28 U.S.C. § 1346(a), this court held that the waiver of sovereign immunity expressed in section 702 applied retroactively to actions brought in the district court under 28 U.S.C. § 1346(a). We construe the decisions in Glines and Hill as holding that section 702 waives sovereign immunity for Saai's action brought under 28 U.S.C. § 1331 seeking nonmonetary relief for violation of her fifth amendment rights. We recognize the division of authority on the question whether and under what circumstances section 702 waives sovereign immunity in actions brought under 28 U.S.C. § 1331. Compare, e.g., Jaffee v. United States, -78a- Supra, and Neal, supra (waiver) with Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978) and Sharrock v. Harris, 473 F.Supp. 1173 (S.D.N.Y. 1979) (no waiver). See also National Treasury Employees Union, supra, 589 F.2d at 673 N.7 (waiver) (dicta). Employees Union, supra, 589 F.2d at 673 n.7 (waiver) (dicta). Although the Glines decision admittedly did not address the sovereign immunity issue in as much detail as the courts in Jaffee or Watson, we think it states the controlling law of this circuit. We therefore affirm che district court's determination that it had jurisdiction over Saal's claims for nonmonetary relief under 28 U.S.C. § 1331. Our conclusion is consistent with Lee v. Blumenthal, 588 F.2d 1281 (9th Cir. 1979), where the plaintiff sought a -79a- writ of mandamus to compel the Secretary of the Treasury to redeem certain bonds con- trolled by the Second Liberty Bond Act. 31 U.S.C. §§ 752, 754(b). The court view- ed the plaintiff's lawsuit as essentially one for money damages arising from a con- tract dispute and concluded that the Court of Claims had exclusive jurisdiction over the action since a judgment over $10,000 was sought. See also Watson, supra. The court's brief discussion of 5 U.S.C. § 702 and Hill, supra, is best understood as recognizing that section 702 was not intended to disturb the existing limitations on district court jurisdiction imposed by the Tucker Act. We do not interpret Lee to hold that section 702 was not a waiver of sovereign immunity in actions properly brought under section 1331. -80a- In light of our holding, we find it un- necessary to address whether the language in Glines and Larson, stating that sover- ign immunity does not apply where the plaintiff claims "that a government offi- cial acted in violation of the Constitu- tion,” 586 F.2d at 681, would provide an alternate grounds, independent of 5 U.S.C. § 702, for finding sovereign immunity in- applicable to Saal's nonmonetary claims.” At least one commentator has viewed the decisions in this area as hopelessly in- consistent, see K. Davis, Administrative Law Treatise Ch. 27 (1958 & Supps. 1970); K. Davis, Administrative Law of the Se- venties Ch. 27 (1976 & Supp. 1980), and we decline to attempt a reconciliation here. As we noted before, the district court granted summary judgment only on Saal's -8la- Claims for nonmonetary relief. There may be several difficult issues with regard to whether sovereign immunity bars Saal's claims for monetary relief. Since that aspect of her case is not before us, however, we do not resolve them on this appeal.” Beller Plaintiff Beller also sued Middendorf and his codefendants in their official capacities. Like Saal, Beller alleged that the amount in controversy exceeded $10,000 and that jurisdiction was proper under 28 U.S.C. § 1331. He also claimed the district court had mandamus jurisdic- tion, 28 U.S.C. § 1361. Beller requested damages only with regard to his action brought under the Privacy Act, 5 U.S.C. § 552a. The district court granted sum- mary judgment to the Navy on this claim, -82a- and we affirm. ° Beller requested an injunction prohibit- ing the defendants from discharging him in violation of his statutory and consti- tutional rights and also an order direct- ing defendants to expunge from his service records and all other files any reference to his administrative board proceedings or separation from the Navy as a homosex- ual. The congressional waiver of sover- eign immunity in these circumstances, see pp. 10-11 supra, is sufficient to give the federal courts jurisdiction over Beller's claims for nonmonetary relief. In the district court the Navy argued that the court had no jurisdiction be- cause plaintiff's action was merely one for breach of his enlistment agreement, and jurisdiction lay exclusively in the -83a- Court of Claims since the claims exceeded $10,000. The court rejected this argument, holding that the "primary relief" sought by Beller was nonmonetary. We can assume arguendo that a district court does not lose jurisdiction over a claim for non- monetary relief simply because it may later be the basis for a money judgment. See, e.g., Melvin v. Laird, 365 F. Supp. 511 (E.D.N.Y. 1973). This does not necessarily mean that a district court has jurisdiction over a back pay claim in excess of $10,000 if the court finds the relief sought is "essentially" or "primarily" nonmonetary, and we doubt that cases such as Mathis v. Laird, 483 F.2d 943 (9th Cir. 1973), stand for such a principle. Cf. Glines, supra. Beller, however, did not seek back pay charges in excess of $10,000 for viola- -84a- tion of his enlistment agreement. We think Glines v. Wade controls our dis- position of this issue and requires a holding that the Court of Claims does not have exclusive jurisdiction over the nonmonetary claims of Beller, Saal, and Miller. The cases before us more closely resemble Glines than Denton v. Schlesinger 605 F.2d 484 (9th Cir. 1979), where the plaintiffs sought $350,000 damages and full reinstatement because their termina- tion from the military allegedly violated their contract, statutory, and constitu- tional rights. Beller did not seek dama- ges, and the grounds which the court in Denton gave for finding Glines distin- guishable, see id. at 486 n.4, apply equally to this case. Miller Miller's action was also brought pur- -85a- a suant to 28 U.S.C. § 1331 and 28 U.S.C. § 1361. In the proceedings below Miller did not seek damages or back pay (possibly be- cause he has been retained in the Navy pursuant to this court's order), and his complaint did not request declaratory re- lief. Miller did, however, seek an in- junction "restraining respondents from discharging petitioner from the United States Navy, or awarding him a less than Honorable Discharge." In light of what we have already said above and the possibili- ty of awarding meaningful injunctive re- lief, which we discuss below, we conclude the district court had jurisdiction pur- suant to section 1331 of Miller's action. B. Mootness In all three appeals the Navy contends there is no case or controversy and that the suits should be dismissed as moot. -86a- Its argument is essentially this: (a) the enlistment terms of all three plain- tiffs has expired; (b) neither Saal nor Beller have applied for reenlistment after being discharged; (c) even if they, like Miller, had applied for reenlistment, the district court cannot order the Navy to accept those reenlistment applications; (d) thus, even assuming the discharge pro- ceedings were invulid for some reason, the district courts at this point are unable to provide a remedy and any adjudication regarding the Navy's reasons for refusing to permit Saal and Beller to reenlist would be premature; and (e) thus, there is no controversy capable of being de- cided by the courts. We disagree with the Navy. Although the facts in each of the appeals before us differ, with regard to mootness we conclude they are sufficient- -87a- ly similar so that separate consideration is unnecessary. For purposes of determining whether this appeal is moot, we note that the plaintiffs probably have a damages claim under the Tucker Act for less than $10,000 which they could maintain in the district court, see VanderMolen v. Stetson, 571 F.2d 617 (D.C. Cir. 1977), even if those claims were ultimiately determined to be without merit. In light of our holding below that the Navy did not act unconstitutionally in dis- charging these plaintiffs, no point would be served by permitting plaintiffs to amend their complaints. In passing on mootness, however, we consider the case as if such claims had been pled in the district court. When so considered, this appeal is not moot. See Memphis -88a- Light, Gas & Water Division v. Craft, 436 U.S. 1, 8-9 (1978); Bituminous Coal Oper- ators’ Assoc., Inc. v. U.M.W., 585 F.2d 586, 599 (3d Cir. 1978). Even if the district courts have no jurisdiction over any damages actions by these plaintiffs, we still conclude that their requests for nonmonetary relief are not moot. As a result of regulations and procedures challenged as constitution- ally infirm, the plaintiffs claim they were injured in various ways: for exam- ple, they were subject to stigma as being unfit for military service, allegedly without a hearing on this question; they were given a reenlistment code which pre- vented them from continuing employment in the military; and the discharge and accompanying materials in their personnel records may injure their employment -89a- prospects. These injuries, if proven, are of a continuing nature; they did not expire with plaintiffs’ term of enlistment. In a somewhat analogous context, this cir- cuit has held that the possibility of being recalled to active duty, even when there is no evidence of imminent recall, is sufficient to prevent an action chal- lenging the military's refusal to discharge the plaintiff as a conscientious objector from being moot. Taylor v. Claytor, 601 F.2d 1102 (9th Cir. 1979); Bratcher v. McNamara, 448 F.2d 222 (9th Cir. 1971). The possible continuing injuries noted above are, we think, sufficient to justify our conclusion that a live case or contro- versy exists in all three appeals. / See also Brown v. Board of Bar Examiners, No. CA 79-4529, slip op. at 4227-28 (9th Cir. July 18, 1980) (appellate review of order -90a- requiring that applicant be permitted to take bar examination cannot practically be obtained before the exam; therefore, case not moot). Cf. Berg v. Claytor, 591 F.2d 849 (D.C. Cir. 1978); Matlovich v. Secretary of the Air Force, 591 F.2d 852 (D.C. Cir. 1978) (jurisdiction asserted over claims similar to plaintiffs here). We reject the Navy's argument that no declaratory or injunctive relief capable of being granted by the courts would be responsive to the constitutional viola- tions alleged by the plaintiffs. We are aware of the principle that the military cannot be forced to accept a reenliateent application, O'Callahan v. United States, 451 F.2d 1396. (Ct. Cl. 1971). Sven ££ correct, however, this doctrine does not foreclose various other kinds of injunc- tive or declaratory relief discussed above -9la- and by the district courts in these cases. C. Exhaustion of Administrative Remedies The Navy maintains that Saal's and Beller's complaints should have been dis- missed because they failed to exhaust administrative remedies. Saal and Beller, say the Navy, should have applied for reenlistment and upon rejection sought review before the Board for Correction of Naval Records (BCNR). See 10 U.S.C. § 1552; 32 C.F.R. § 723. The principal authority relied upon by the Navy is Champagne v. Schlesinger, 506 F.2d 979 (7th Cir. 1974), where the court required an enlisted person discharged under In- struction 1900.9A for homosexuality to seek review before the BCNR before chal- lenging the constitutionality of his discharge in a district court. The court -92a- interpreted the relevant regulations to allow the BCNR to consider the validity of plaintiffs' discharges and to recommend to the Secretary of the Navy appropriate relief, including reinstatement and back pay. Our focus in this case is on the con- stitutionality of the Navy's actions in discharging the plaintiffs, not the con- stitutionality of Navy regulations pro- hibiting acceptance of enlistment applications from homosexuals. The Navy's arguments regarding the prematurity of the plaintiffs' challenges to those prac- tices are therefore inapposite. Even if the Navy's reenlistment practices were before us, the record makes it plain that any reenlistment application by Saal and Beller would be completely futile. There is some tension between the -93a- holding in Champagne and this circuit's decision in Glines v. Wade, supra, and Downen v. Warner, 481 F.2d 642 (9th Cir. 1973), which hold exhaustion of BCNR reme- dies unnecessary before challenging regu- lations principally on constitutional grounds. Our own precedents control. In any event, our interpretation of the applicable Navy policies differs from Chat in Champagne. We understand Navy policy to require discharge of members who have engaged in homosexual conduct, subject only to a power of discretionary reten- tion vested in the Secretary which is un- related to the BCNR's function. [In light of our understanding, it would serve no purpose for the plaintiffs to pursue such administrative remedies. Cf. Weinberger v. Salfi, 422 U.S. 749, 765 (1975); Johnson v. Robison, 415 U.S. 361 (1974) -94a- (suggesting that administrative agency may not pass upon constitutional challen- ges to statutes). Iilt The due process questions presented by the actions of the Navy are both sensi- tive and complex. We must consider interrelated issues of procedural due process, substantive due process, and to a lesser extent what one comiiator has labeled "structural due process," see Tribe, Structural Due Process, 10 Harv. C.R.-C.L. L. Rev. 269 (1975), and equal protection. ° A. The Navy's Policy Regarding Discharge of Homosexuals To evaluate the constitutionality of the Navy's conduct, it is necessary to deter- mine what the Navy's policy regarding discharge of homosexuals really is. The -95a- policy of the Secretary which was applied to the plaintiffs begins: "Members in- volved in homosexuality are military lia- bilities who cannot be tolerated in a military organization . .. . Their prompt separation is essential." inst. 1900.9A. We conclude that this instruction and the applicable regulations make discharge of known homosexuals mandatory, subject only to a kind of executive discretion vested in the Secretary which is unrelated to the fitness of any particular individu- 9 al. Since 1974, in Champagne v. Schlesinger, supra, the Navy in litigation has main- tained that its regulations do not require discharge of all homosexuals. It claims that the regulations, which are quoted at length below, require that homosexuals only be processed for discharge; the dis- -96a- charge board can recommend retention, and the Secretary has discretion to retain a known homosexual where he considers it appropriate. In Berg v. Claytor, supra, the Court of Appeals for the District of Columbia accepted the Navy's explanation of its policy but remanded the case to the Sec~ retary for a fuller explanation of why the Secretary decided not to retain the plaintiff. Cf. also Gayer v. Schlesin- ger, 490 F.2d 740 (D.C. Cir. 1973) (interpreting security clearance regula- tions). With all respect, we cannot agree with that court's view of the applicable regulations. The Secretary's policy regarding homo- sexuals states: Members involved in homosex- uality are military liabilities who cannot be tolerated ina military organization. In devel- -97a- Oping and documenting cases in- volving homosexual conduct, com- manding officers should be keenly aware that members involved in homosexual acts are security and reliability risks who discredit themselves and the naval service by their homosexual conduct. Their prompt separation is essential. SECNAVINST 1900.9A. The Navy's Personnel Manual prescribes several grounds on which enlisted persons "may be separated by reason hy wisconduct." BUPERSMAN § 3420185. Homosexual acts, various sexual offenses, and sale or trafficking in drugs are the only categories where the regulations provide, "Processing for dis- charge is mandatory." The regulations governing other grounds for discharge by reason of misconduct permit various ways for a member to rehabilitate himself or to demonstrate that because of other 10 reasons he should be retained. The regulations also provide that members may -98a- be discharged by reason of unfitness on Similar grounds, and the plaintiffs here were discharged under the unfitness regu- lations. Homosexual acts (and conduct labelled "sexual perversion") are singled out with the directive, "Processing for discharge is mandatory," while some form of individual consideration or rehabili- tation is provided for in connection with other grounds. ?+ The category for homo- sexual acts explicitly refers to INST. 1900.9 as an expression of the controlling policy. The district courts in Saal and Martinez v. Brown, 449 F. Supp. 207 (N.D. Cal. 1978), concluded the regu- lations required discharge of a person found to be homosexual. Both courts noted that the Navy was given the opportunity to demonstrate that it retains some -99a- known homosexuals and to articulate the factors which influence the Secretary's decision in such cases. The Secretary in these cases was either unable or un- willing to do 0.7? Other indications in the records of the cases before us support the conclusion that "as applied, the regulations require the mandatory dis- charge of those found to be homosexuals or to have engaged in homosexual conduct." Martinez, supra, 449 F. Supp. at 212.*° We can agree with the Navy that one kind of discretion is permitted by the regulations. The Secretary urges that he has broad discretion to retain a homosex- ual if the individual is of extraordinary value to the Navy. One explanation pro- ferred by the Secretary in Beller suggests that the fitness of the individual to serve and the likelihood that retaining -100a- the individual will impair the efficiency of the service are considered by the Secretary. In his brief, the Secretary states: [T]he decision of whether or not to discharge or retain a serviceman involves a high degree of military discretion and judgment. The de- cision is based on a balance that only the military can strike, and the individuality of each decision makes guidelines impossible. What must be weighed is the need of the service for the specific attributes and talents that the particular serviceman possesses and the effect on the military of the loss of the services of that individual, against the actual or probable detriment that cetention of the individual would have upon the military in general, and the effectiveness of the individual in particular. As developed further in this and other cases, however, see, e.g., Berg, supra, 436 F. Supp. at 81, 591 F.2d at 850-51; Matlovich, supra, 591 F.2d at 856-61, an individual with an otherwise fine service record will not be retained unless the -l0la- Secretary concludes his record marks him as being highly unusual or especially valuable to the Navy. This kind of consideration does not contemplate evaluating the fit- ness of an individual to continue military service. For our purposes, therefore, the appli- cable Navy practices may be summarized as follows: the Secretary will discharge a person found by a discharge board to have engaged in homosexual acts covered by the regulations. The Secretary has discretion to retain a person in rare instances, but these instances are unrelated to the fitness to serve of the particular indivi- dual or the reasons why the Navy in gener- al discharges homosexuals. ?4 B. Procedural Due Process In determining whether the procedures followed by the Navy in processing the -102a- plaintiffs for discharge violated the requirements of procedural due process, the threshold inquiry is whether the plaintiffs were deprived of an interest in Vv. property or liberty. Board of Regents Roth, 408 U.S. 564 (1972). 1. Property Interest The discharge proceedings and ultimate separations did not deprive plaintiffs of a property interest without due process. The district court in Berg stated the reason succinctly: [UJ]Jnder Navy policy there can be no dcubt that committing homosexual acts while in the Navy is cause for terminetion. Plaintiff has admitted to having performed homosexual acts while in the Service. Having admit- ted there was cause for dismissal, plaintiff's expectation of continued employment has been extinguished. Thus he had no property interest 436 F. Supp. at 81. The Navy regulations and practices create no reasonable expec- -103a- tation of continued employment once a per- son is determined to fall within the categories described in the applicable regulations. See, e.g., Austin v. United States, 206 Ct. Cl. 719, 723 (Ct. Cl.), cert. denied, 423 U.S. 911 (1975); Neal v. Secretary of the Navy, supra, 472 F. Supp. at 781-85; Knehans v. Alexander, 566 F.2d 312, 314 (D.C. Cir. 1977), cert. denied, 435 U.S. 995 (1978). Cf. Tennessee v. Dunlap, 426 U.S. 312 (1976). Therefore, unless the Navy as a substantive matter may not discharge all homosexuals, or unless it must consider factors in addi- tion to homosexuality in its decision, questions we discuss below, we see no ba- sis for inferring any expectation of continued service sufficient to consti- tute a constitutional property interest. See generally Perry v. Sindermann, 408 -104a- U.S. 593 (1972). See also benShalom v. Secretary of the Army, supra, slip op. at 6-7. Cf. Wehner v. Levi, 562 F.2d 5 1276 (D.C. Cir. 1977).? 2. Liberty Interest More difficult is the question whether the Navy's conduct deprived the plaintiffs of a protected liberty interest. The principles governing our analysis are contained in several leading cases, and we will not repeat them again. See, e.g., Codd v. Velger, 429 U.S. 624 (1977); Meachum v. Fano, 427 U.S. 216 (1976); Bishop v. Wood, 426 U.S. 341 (1976); Paul v. Davis, 424 U.S. 693 (1976) Roth, supra; Perry, supra. See also Graves v. Duganne, 581 F.2d 222 (9th Cir. 1978); Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361 (9th Cir. 1976). If the Navy's charges of homosexuality -105a- were false, made public, and followed by discharge, we can assume a deprivation of liberty would occur. In such a case the Navy's action "might seriously damage [the person's] standing and associations in his community" and would impose "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Roth, supra, 408 U.S. at 573. In the cases before us, however, the plaintiffs either admitted or were found in a predischarge hearing to have engaged in the acts which allegedly imposed a sigma on them. The plaintiffs were al- lowed to introduce evidence to support their arguments that the Secretary should exercise his discretion to retain them. Under the applicable regulations, there was nothing more about which to have a -106a-~ hearing. Still putting aside the substan- tive questions whether the Navy may dis- charge all homosexuals or whether it must consider additional circumstances particu- lar to the individual case, the reasoning of Codd v. Velger compels a conclusion that the plaintiffs' liberty interests were protected by the hearings they re- ceived. See also Graves v. Duganne, supra, 581 F.2d at 224 (9th Cir. 1978). Plaintiffs contend also they received the stigma of "unfitness" for retention, and that they never received a hearing on the issue. In the context of these cases, we reject this argument. The mere fact of discharge from a government position does not deprive a person of a liberty interest. See, e.g., Roth, supra, 408 U.S. at 574 n.13, Ventetuolo v. Burke, 596 F.2d 476, 483 (lst Cir. 1979); Knehans -107a- v. Alexander, supra, 566 F.2d at 314; Mazaleski v. Treusdell, 562 F.2d 701, 712-14 (D.C. Cir. 1977); Stretten, supra, 537 F.2d at 366; Lieberman v. Gant, 474 F. Supp. 848, 858 (D. Conn. 1979). The real stigma imposed by the Navy's action, moreover, is the charge of homosexuality, not the fact of discharge or some implied statement that the individual is not suf- ficiently needed to be retained. Cf. Tribe, supra, 10 Harv. C.R.-C.L. L.Rev. at 282-83 n.42. This is especially true since the regulations do not make fitness of the particular individual a factor in the decision to discharge. The plaintiffs' admission of homosexual acts, and the fact that hearings on the subject were allowed, serve to dispose of the procedural due process claims. We note in addition that the deprivation of -108a- liberty claims based on the fact that the reasons for discharge will become public seems to us without merit in any event. Albeit in apparent response to the initia- tion of litigation, plaintiffs were given an honorable discharge. The Navy contends that nowhere on the separation papers given to the plaintiffs is there any indication of the reasons for the honorable discharge. Assuming arguendo that a dis- charge under less than honorable condi- tions imposes a stigma, see Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L.J. 33, 33-41 (1973), the fact of an honorable discharge on its face seems to impose no stigma on the recipient. Plaintiffs contend the perma- nent records on file with the Navy contain the reenlistment code RE-4 and the reasons for their discharge. This information, -109a- contend plaintiffs, forecloses them from obtaining jobs with any other government agencies. The district court in Berg found, "There is no code or symbol con- nected with any papers or explanations available to prospective employees or the public that identify the reasons underlying the honorable discharge." 436 F. Supp. at 80-81 n.2. The court in Saal disagreed, reasoning that the reasons for Saal's discharge and her reenlistment code were "necessarily reflected in her service record," and that the Navy had "compelled disclosure of her otherwise private sexual activity." 427 F. Supp. at 198. We have been di- rected to no evidence indicating that the plaintiffs" service records are likely to impose stigma upon them or make it more difficult for them to seek post- -110a- discharge employment. According to the Navy, the documents likely to be examined by future employers would contain no rea- son for the honorable discharge. On this record, we cannot conclude that the Navy's action has deprived the plaintiffs of a 16 liberty interest. See Bishop v. Wood, Supra. See also Knehans, supra, 566 F.2d at 314; Lyons v. Sullivan, 602 F.2d 7, ll n.6 (lst Cir.), cert. denied, 100 S. Ct. 159 (1979); benShalom, supra, slip op. at 7-8; Ventetuolo v. Burke, supra, 470 F. Supp. 887, 895-96 (D.R.I. 1978), aff'd, 596 F.2d 476 (lst Cir. 1979). C. Substantive Due Process Plaintiff's ultimate contention is that the Navy's regulations violate substantive guarantees inherent in the due process clause. We decide at the outset that this case does not require us to address the -lila- question whether consensual private homo- sexual conduct is a fundamental right, as that term is used in equal protection?’ and some due process cases.28 If we were to answer in the affirmative, it would follow that the conduct in question is subject to prohibition only to further compelling state interests and that the category used or burden imposed by the regulation must be a necessary, or the least restric- tive, way to promote those interests. To formulate the issue in those terms would reflect, we think, a misunderstanding of proper substantive due process analysis. These appeals were not presented to us as implicating a suspect or quasi- suspect classification. The attacks, rather, were based on the claim that the conduct prohibited by the regulation was protected as an aspect of the fundamental -ll2a- right of privacy. Substantive due process, not equal protection, was the basis of the constitutional claim, and we address the case in those terms. The rather formal three-tier analysis of the Court's recent equal protection decisions differs somewhat from its less categorical approach when questions of substantive due process are involved. Recent decisions indicate that substan- tive due process scrutiny of a government regulation involves a case-by-case balan- cing of the nature of the individual interest allegedly infringed, the impor- tance of the government interests further- ed, the degree of infringement, and the sensitivity of the government entity responsible for the regulation to more carefully tailored alternative means of achieving its goals. See Zablocki v. -ll3a- Redhail, 434 U.S. 374 (1978); id. at 396 (1978) (Stewart, J., concurring in the judgment) (citing Williams v. Illinois, 399 U.S. 235, 260 (1970) (Harlan, J., concur- ring in the result); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plur- 19 ality opinion). Although the Court's approaches to equal protection and due process cases differ, there are important analytic and rhetori- cal similarities in the doctrines. When conduct, either by virtue of its inadequate foundation in the continuing traditions of our society or for some other reason, such as lack of connection with interests recognized as private and protected, is subject to some government regulation, then analysis under the substantive due process clause proceeds in much the same way as analysis under the lowest tier of -ll4a- vw equal protection scrutiny. A rational relation to a legitimate government interest will normally suffice to uphold the regulation. At the other extreme, where the Government seriously intrudes into matters which lie at the core of in- terests which deserve due process protec- tion, then the compelling state interest test employed in equal protection cases may be used by the Court to describe the appropriate due process analysis. See, e.g., Roe v. Wade, 410 U.S. 113, 155 (1973); Griswold v. Connecticut, 381 U.S. 479, 497 (1965) (Goldberg, J., concur- ring); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See generally Developments in the Law--The Constitution and the Family, 93 Harv. L. Rev. 1156, 1166-82, 1193-97 (1980). 7° The case before us lies somewhere -115a- between these two standards. We recognize, as we must, that there is substantial aca- demic comment which argues that the choice to engage in homosexual action is a perso- nal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual's right of privacy. See, e.g., L. Tribe, American Constitu- tional Law § 15-13 (1978 & Supp. 1979) and authorities cited therein. See also Symposium: Sexual Preference and Gender Identity, 30 Hastings L. Rev. 799 (1979); Gerety, Redefining Privacy, 12 Harv. C.R.- C.L. L. Rev. 233, 280-81 (1977); Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory, 45 Fordham L. Rev. 1281 (1977); Wilkinson & White, Constitutional Protection for Personal Lifestyle, 62 Cornell L. Rev. -1l6a- 563 (1977); Note, The Constitutionality of Laws Forbidding Private Homosexual Con- duct, 72 Mich. L. Rev. 1613 (1974). See generally Comment, Out of the Closet, Out of a Job: Due Process in Teacher Disqual- ification, 6 Hastings Const. L.Q. 663 (1979); Von Beigel, The Criminalization of Private Homosexual Acts: A Jurispru- dential Case Study of a Decision by the Texas Bar Penal Code Revision Committee, 6 Human Rights 23 (1977); Siniscalco, Homosexual Discrimination in Employment, 16 Santa Clara L. Rev. 495 (1976); Comment, A Homosexual's Legal Dilemma, 27 Ark. L. Rev. 687 (1973). There is substantial authority to the contrary, however. The Supreme Court has issued a summary affirmance of a lower court decision denying a challenge to a state criminal statute prohibiting sodomy -li7a- | as applied to private consensual homosex- ual conduct. Doe v. Commonwealth's Attorney, 425 U.S. 901°(1976), aff'g 403 F. Supp. 1199 (E.D. Va. 1975). Some commentators, in an effort to limit the holding, have attempted alternate expla- nations, see, e.g. ; L. Tribe, supra 5 15-13 at 943.°* See also benShalom, supra, slip op. at 14-15; New York v. Onofre, summarized in 48 U.S.L.W. (Feb. 12, 1980) (N.Y. Sup. Ct.). Most federal courts, on the other hand, have understood the holding to be that homosexual conduct does not enjoy special constitutional protection under the due process clause. See, e.g., DeSantis v. Pacific Tel. & Tel. Co., -608 F.2d 327 (9th Cir. 1979) (homosexuals cannot claim protection under 42 U.S.C. § 1985(3); homosexuals not mem- bers of suspect or quasi-suspect class) ; -118a- id. at 334 (Sneed, J., concurring and dissenting) (after Doe, consensual homo- sexual) (8th Cir. 1979), cert. denied, 100 S. Ct. 667 (1980) (anti-prostitution sta- tute violates no fundamental rights); Gay Alliance of Students v. Matthews, 544 F.2d 162, 166 (4th Cir. 1976) (dicta) (university may regulate homosexual conduct of stu- dents, or homosexual conduct which sub- stantially disrupts operation and disci- pline of school); Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976) (en banc), cert. denied, 429 U.S. 977 (1976) ("[Doe] necessarily confined the constitutionally protected right of privacy to heterosex- ual conduct ..."); Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (Sth Cir.), cert. denied, 430 U.S. 982 (1976) (dicta) (first amendment does not require newspaper to run advertisement -119a- arguably soliciting illegal homosexual conduct); In re Nemetz, 485 F. Supp. 470 (E.D. Va. 1980) (consensual private homo- sexual relations is a basis for denying petition for naturalization because of lack of good moral character; Virginia's sodomy statute upheld in Doe); Wilson v. Swing, 463 F. Supp. 555 (M.D. N.C. 1978) (adulterous conduct not protected by either first amendment or due process clause). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-68 (1973). Cf. Zablocki v. Redhail, supra, 434 U.S. at 396-403 (Powell, J., concurring in the judgment). But see New York v. Onofre, Supra (sodomy statute unconstitutional as applied to consenting homosexuals). Cf. Carey v. Population Services Internation- al, 431 U.S. 678, 688 n.5 (1977) (plurali- ty opinion) (whether and when constitution -120a- prohibits state regulation of private con- sensual sexual behavior among adults unsettled); benShalom, supra (homosexual tendencies or personality protected). In light of the above authorities, we can concede arguendo that the reasons which led the Court to protect certain private decisions intimately linked with one's personality, see, e.g., Roe, supra, and family living arrangements beyond the core nuclear family, see, e.g., Zablocki, Supra, suggest that some kinds of govern- ment regulation of private consensual homosexual behavior may face substan [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1343%3A1. Public record. Not legal advice.