Petition for Writ of Certiorari — Woodward v. United States

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FILE D.,

7 AUG 30 1989

| No JOSEPH FP SPANMIOL, J

: CLERK

In the

Supreme Court of the United States

October Term, 1989

JAMES M. WOODWARD,

Petitioner,

UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

DANIEL M. SCHEMBER

GAFFNEY, SCHEMBER & KETE, P.C.

1120 G Street, N.W.

Washington, D.C. 20005

202/393-5444

Counsel of Record for Petitioner

JOEL PAUL

Assistant Professor of Law

Washington College of Law

The American University

Of Counsel

QUESTIONS PRESENTED

1. Did the Court of Appeals presume improperly that Wood-

ward committed homosexual acts—a fact not in evidence-—where

he admitted only gay orientation and nonsexual association, and

his denial of acts was undisputed?

2. Was it improper for the Court of Appeals to have decided

constitutional questions pretermitted below, without any articula-

tion by the Navy of interests harmed by Woodward’s gay orienta-

tion, nondisruptive speech, and nonsexual association?

3. If constitutional questions are reached, does the First Amend-

ment preclude Woodward’s release from active duty merely for

stating his gay orientation and associating nonsexually with gay

men?

4. Did Woodward’s release for being gay, absent any evidence

of homosexual conduct, violate equal protection?

5. Was Woodward’s release arbitrary and capricious, since Navy

policy at the time allowed retention of some homosexual officers,

including officers who had committed homosexual acts, but the

Navy has never articulated the retention criteria, or their applica-

tion to him?

TABLE OF CONTENTS

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Constitutional and Statutory Provisions.............

eee rer er

Reasons for Granting the Writ:

» Il.

ITI.

The federal circuit improperly presumed criminal

acts by Ensign Woodward solely from his ac-

knowledgement of gay orientation and nonsex-

was GE. «cos 0 vce e a ae

The federai circuit prematurely decided the equal

protection question, without evidence of any in-

terests served by the Navy’s discrimination ...

This same error applies to petitioner’s first

amendment claims; also, the court of appeals

erred in holding his statements unprotected, and

not on a matter of public concern ..........

The federal circuit never decided Ensign Wood-

ward’s first amendment association claim ..

In rejecting petitioner’s nonconstitutional claim,

the federal circuit committed the same errer noted

in Berg v. Claytor, 591 F.2d 849 (D.C. Cir.

1978), a decision well supported by this court’s

Pr errr re rte eb

iii

Contents

EE ER eee eee ee

APPENDIX

Opinion of the U.S. Court of Appeals for the Federal

EL CC eS re ee eee ee Peek

CL kes tase eee b satan es easesssecss

Memorandum Opinion and Order of the U.S. District

Court for the District of Columbia.............

Order of the U.S. Court of Appeals for the District

ME cc cc ceccecesecncessenees

Memorandum Opinion of the U.S. District Court for

ES Eee ee

Order of the U.S. District Court for the District of

eee ee abe evens

Memorandum Order and Judgment of the U.S.

District Court for the District of Columbia......

Memorandum Order of the U.S. District Court for

rr tac ce aw ateceaceces

Judgment of the U.S. Court of Appeals for the

District of Columbia Circuit..............-5065

Memorandum of the U.S. Court of Appeals for the

District of Columbia Circuit ................05.

Opinion of the U.S. Claims Court ..............5:.

Page

42a

45a

76a

Contents

Page

Judgment of the U.S. Claims Court ................ 11Sa

Order of the U.S. Court of Appeals for the Federal

Aah Zeca Soi Caer ae, oo 1l6a

Order of the U.S. Court of Appeals for the Federal

EN hhc 4 4 5b EE ROR RL Aa hae eae oe 118a

TABLE OF AUTHORITIES

Cases

Baker v. Wade, 774 F.2d 1285, (Sth Cir. 1985)

Gh Wak xt bd vn a nnd nudausdoukea eked. 11

Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980)... 13

Ben-Shalom v. Marsh, Ss F.2d i,

No. 88-2771 (7th Cir.,

Cg A Ee AF 8, 10, 11, 13, 16

Berg v. Claytor, 591 F.2d 849 (D.C. Cir. 1978)...... 6, 17

Bowers v. Hardwick, 478 U.S. 186 (1986)........... 9, 12

Citizens to Preserve Overton Park v. Volpe,

Se i kw kcae 13

Cleburne v. Cleburne Living Center,

es 14

Connick v. Myers, 461 U.S. 138 (1983) ............ 15, 16

Doe v. Casey, 796 F.2d 1508 (D.C. Cir. 1986)....... 1]

Contents

Page

Fiorillo v. United States Dep’t of Justice, 795 F.2d 1544

as 3. rere rr rrr eanesscsteses 9, 15

Givhan v. Western Line Consolidated School District,

Pr Rik ee OT. rrrrrerr rr Terr Ter 16

Goidman v. Weinberger, 475 U.S. 503 (1986)........ 15

Kirchberg v. Fenstra, 450 U.S. 455 (1981)........... 14

Matlovich v. Secretary of the Air Force, 591 F.2d 852

CG. Gilt. BFE ona eevee cascsecescssesscces 17

Matthews v. Marsh, 755 F.2d 182 (Ist Cir. 1985) ... 10, 13

McGinnis v. Royster, 410 U.S. 263 (1972)........... 14

Motor Vehicle Manufacturers Association v. State

Farm Mutual Automobile Insurance Company,

GER UE. FP CD 6 ce acc cndcccccnsusssceness 18

Mt. Healthy City Board of Education v. Doyle,

Y Jk @ > 2), Sree rerTT rrr tT rere 8, 12

Padula v. Webster, 833 F.2d 97 (D.C. Cir. 1987) .... 10

Rich v. Secretary of the Army, 735 F.2d 1220

(1Gtia Cle. 19BG) 0. ccc ccccccccesnccccncceses 10

Rostker v. Goldberg, 453 U.S. 57 (1981) ............ 14

Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989)

OO IE uk cc ded ncdvceiecs ceatasaineeeues 10, 13, 14

No.

In the

Supreme Court of the United States

October Term, 1989

JAMES M. WOODWARD,

Petitioner,

UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

Petitioner James M. Woodward respectfully prays that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Federal Circuit entered on March 29,

1989.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the Federal

Circuit is reported at 871 F.2d 1068 (Fed. Cir. 1989) and appears

in the appendix at la. The opinion of the United States Claims

Court is unreported; it appears at 96a.

The first opinion of the United States District Court for the

District of Columbia is reported at 451 F. Supp. 346 (D.D.C.

1978). It appears at 45a. On appeal from this decision, the U.S.

Court of Appeals for the District of Columbia Circuit remanded

the case in an unreported order appearing at 58a.

On remand, the District Court vacated its 1978 opinion and

order in an opinion and order reported unofficially at 25 Fair

Emp. Prac. Cas. (BNA) 695 (D.D.C. 1981). They appear at 60a

and 74a, respectively. Subsequently, the District Court granted

the Navy summary judgment in an unreported memorandum order

appearing at 76a. Reconsideration was denied in an unreported

memorandum order appearing at 83a.

On the second appeal, the U.S. Court of Appeals for the

District of Columbia Circuit remanded the case in an unreported

order and memorandum appearing at 90a and 92a, respectively.

The case then was transferred to the Claims Court.

JURISDICTION

The judgment sought to be reviewed is dated March 29, 1989,

and was entered that day. Rehearing was denied May 2, !989.

By order dated July 21, 1989, Mr. Justice White extended until

August 30, 1989, the time for filing a petition for writ of cer-

tiorari. This Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. I (excerpt)

Congress shall make no law. ..abridging the freedom of

speech. ..or the right... peaceably to assemble.

3 .

U.S. Const. amend. V (excerpt)

No person shall. . .be deprived of life, liberty, or property,

without due process of law.

5. U.S.C. §706 (excerpt)

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the mean-

ing or applicability of the terms of an agency action. The review-

ing court shall—

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity.

10 U.S.C. §681(a)

Except as otherwise provided in this title, the Secretary concerned

may at any time release a Reserve under his jurisdiction from

active duty.

10 U.S.C. §1552(a) (excerpt)

The Secretary of a military department. . . acting through boards

of civilians of the executive part of that military department, may

correct any military record of that department when he considers

it necessary to correct an error or remove an injustice.

STATEMENT OF THE CASE

In 1972 petitioner James M. Woodward enlisted for six years

in the Naval Flight Officer Candidate Program. He answered

**Yes’’ the following question on the Navy enlistment form: ‘‘Are

you attracted sexually or do you desire any sexual activity with

persons of the same sex as yourself?’’ To the question ‘‘Have

you ever engaged in sexual activity with another person who is

the same sex as yourself?’’ he answered ‘‘No.’’ (PRMSJ App.

12.)' Petitioner was trained and commissioned. He commenced

operational assignments in which he earned satisfactory evalua-

tions from his superiors.

In the early Fall of 1974 Ensign Woodward was seen sitting

in the Subic Bay Officer’s Club with an enlisted man who was

undergoing administrative discharge for homosexuality. Petitioner

then met with his commanding officer, Commander Moore. Peti-

tioner acknowledged his homosexual tendencies and that he

sought the company of gay servicemembers. App. 3a.

Commander Moore wrote to the Chief of Naval Personnel,

recommending Ensign Woodward be discharged for professing

homosexual tendencies. Ensign Woodward then wrote the Chief

of Naval Personnel, stating:

I am, and have been, since I became sexually aware,

primarily homosexually orented.... { do, and will

continue to, associate with other homosexuals.

I am well aware of the problems of social acceptance

and special problems of leadership with which I will

be confronted as my associates become aware of

my homosexuality.

For the good of both the Navy and myself, I respect-

1 The reference is to the Appendix to Plaintiff’s Renewed Motion for Sum-

mary Judgment, filed in the Claims Court July 15, 1985.

fully request the chance to contribute to the defense

of the United States as an honest, open, ‘‘gay’’

officer. I recommend that the matter of my homo-

sexuality be dropped as a matter of official concern.

App. 4a.

Commander Moore’s recommendation was deemed vulner-

able on legal grounds for reasons the Navy at this time cannot

recall. (PRMSJ App. 53-54.) Instead of discharging Woodward,

the Navy terminated his assignment at sea and released him from

active duty. As the United States District Court for the District

of Columbia found, ‘‘Woodward’s service pay was stopped and

his chances of advancement were effectively ended.’’ App. 69a.

Petitioner sought reinstatement to active duty from the Board

for Correction of Naval Records (BCNR). The Board requested

an advisory opinion from the Chief of Naval Personnel, who

wrote ‘‘[t]he provisions of 10 U.S.C. §681(a) do not require the

Secretary to provide a reason for release of a Reserve Officer

to inactive duty and none has been assigned.’” (PRMSJ App. 22.)

The Chief of Naval Personnel went further, however, stating

“*fijf. ..a reason were required for his release to inactive duty,”’

the meeting in the officer’s club ‘‘could be characterized as a

public flaunting of his beliefs’’ and would constitute a ‘‘suffi-

cient basis’’ for the decision. (PRMSJ App. 23.) BCNR denied

relief, saying only ‘“‘the Board determined that insufficient evidence

has been presented to indicate probable material error or in-

justice.’” App. 43a.

Petitioner then filed suit in the United States District Court

for the District of Columbia.* The District Court rejected peti-

tioner’s nonconstitutional and First and Fifth Amendment claims,

but the District of Columbia Circuit, over the Navy’s opposi-

2 The District Court later was held to lack jurisdiction, but it had power

to transfer the case to the Claims Court, 28 U.S.C. §1631, which had jurisdic-

tion under 28 U.S.C. §1491(a)(1).

tion, remanded the case for reconsideration in light of Berg v.

Claytor, 591 F.2d 849 (D.C. Cir. 1978). In Berg the Navy con-

ceded that its own policy allowed continuation on active duty

of even some officers who had committed homosexual acts. The

court held the Navy had failed to articulate the retention criteria

or to explain their application to Berg.

On remand the District Court vacated its previous final order

and held, in light of Berg, that the Navy had denied Ensign Wood-

ward the benefit of its retention policy without explaining the

reasons therefor. The District Court ordered the Navy to

provide the Court with a statement of reasons for

plaintiff’s release from active duty, including an

explanation of the application of the Navy’s reten-

tion policy regarding homosexuals to this plaintiff.

App. 74a-7Sa.

In response to this order, however, the Navy declined to

explain its retention policy or its application to Ensign Woodward.

Instead, the Navy submitted declarations saying (1) in the Fall

of 1974 the Navy was undergoing a reduction in force involving

release of Reserve officers; (2) after Commander Moore’s dis-

charge recommendation was rejected, Ensign Woodward was

deemed available for reassignment or release from active duty

and his record was sent to a reviewing office; (3) although Ensign

Woodward was ‘“‘usually rated above average,’’ his record ‘‘was

considered far from outstanding’’; (4) Ensign Woodward’s sexual

preference caused the reviewing office to lower the evaluation

of his record even further; (5) the reviewing office, expressly citing

homosexual tendencies as a reason, recommended Ensign Wood-

ward’s release rather than reassignment; and (6) this recommenda-

tion was accepted. (PRMSJ App. 45-54.)

Relying on these declarations the Navy claimed a basis for

Ensign Woodward’s release ‘‘independent’’ of his sexual prefer-

ence. The District Court granted the Navy summary judgment,

but did not accept the Navy’s ‘‘independent basis’’ theory.

Instead, the court held that, in light of Ensign Woodward’s above

average but ‘‘far from outstanding’’ fitness reports, his ‘‘quali-

fications and record were not of such unusual strength to merit

retaining [him] imspite of his acknowledged homosexual

tendencies.’’ App. 82a.

On appeal to the District of Columbia Circuit, the Navy ques-

tioned the District Court’s jurisdiction and the Court of Appeals

remanded. The case then was transferred to the Claims Court,

where discovery was granted.

Discovery revealed (1) contrary to the Navy’s reduction in

force argument, Naval Flight Officers, petitioner’s category, un-

derwent a net increase in the year Ensign Woodward was released,

as was the case in the subsequent and preceding years (PRMSJ

App. 82-84); (2) none of the standard criteria for sending an of-

ficer’s record to the reviewing office applied to Ensign Wood-

ward, and the records reviewed by the office normally were those

of lieutenants and lieutenants j.g., not ensigns; (3) Ensign Wood-

ward’s record was sent to the office because he acknowledged homo-

sexual tendencies; and (4) he was the only ensign in his category

released from active duty that year. (PRMSJ App. 60-61, 71,

82-84, 91.)

On this record, the Claims Court assumed without deciding

that the Navy’s failure to grant petitioner consideration under

its homosexual retention policy was arbitrary and capricious, and

that release of a Reserve officer for acknowledging homosexual

feelings and nonsexual association violates the Constitution, but

the court accepted the Navy’s ‘“‘independent basis’’ theory,

reasoning:

A Navy Ensign with a record similar to plaintiff’s

would have been released if his file had reached

the reviewing office at the same time Woodward’s

file did.

App. 109a.

On appeal to the Federal Circuit, petitioner argued his file

was sent for review only because he verbally acknowledged homo-

sexual feelings, and that the Navy failed to meet its burden under

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274

(1977), of proving his file would have been sent for review had

this acknowledgement not occurred. Since Woodward was the

only ensign in his category released, no evidence supported the

Navy’s force reduction argument, or its argument that his average

performance record by itself would have caused his release. Peti-

tioner asked the Federal Circuit to reverse the Claims Court’s

‘*independent basis’’ ruling and remand for consideration of the

nonconstitutional and constitutional claims pretermitted by that

court.

The Federal Circuit rejected the Claims Court’s ‘‘indepen-

dent basis’’ holding. App. 23a-25a. Instead of remanding the case,

however, the court decided the merits itself. The court did so in

the absence of any statement by the Navy (1) articulating the

criteria for retention of homosexuals under the Navy’s policy in

force at the time of Ensign Woodward’s release; (2) explaining

the application of the retention criteria to Ensign Woodward;

or (3) identifying the legitimate Navy interests served by purg-

ing gay-Oriented servicemembers who acknowledge their feelings

in nondisruptive communication, or associate nonsexually with

homosexuals.

In analyzing the merits of Woodward’s constitutional claims,

the Federal Circuit asserted that it was not presented with a “‘situa-

tion where there is action based so/e/y on ‘status as a person with

a homosexual orientation,’ ’’ Ap. 26a, n.6 (emphasis in orginal),

quoting benShalom v. Marsh, F. Supp. _, No.

88-c-468, slip op. at 2 (E.D. Wis. January 10, 1989). Rather,

because Ensign Woodward acknowledged homosexual feelings

and nonsexual association with homosexuals and failed to

‘claim. ..he is celibate,’’ id., the court removed the case from

the category involving ‘‘only homosexual tendencies.’’ Instead,

the court placed Ensign Woodward in the class, ‘‘homosexuals,”’

defined as persons who engage in criminal conduct. The court

did so despite the absence of any evidence or Navy argument that

he committed, attempted, or intended any homosexual act, and

despite his explicit, undisputed denial of homosexual acts on his

enlistment form. App. 36a-37a.

From this premise, the court then dismissed Woodward’s

equal protection claim, holding that, after Bowers v. Hardwick,

478 U.S. 186 (1986), which rejected a privacy challenge to a

sodomy conviction, ‘‘it cannot logically be asserted that discrimi-

nation against homosexuals is constitutionally infirm.’’ App. 36a.

The court also held that Ensign Woodward’s verbal acknowledge-

ment of his feelings was ‘‘not entitled to First Amendment pro-

tection,’’ because his ‘‘statements were made for personal reasons

and not to inform the public of matters of general concern.’ ’”’

App. lla, n.2, quoting Fiorillo v. United States Dep’t of Justice,

795 F.2d 1544, 1550 (Fed. Cir. 1986). The court did not discuss

First Amendment protection of Ensign Woodward’s nonsexual

association with homosexuals.

Finally, the court rejected petitioner’s nonconstitutional

claim. App. 13a-14a, n.3. The court said Ensign Woodward ‘‘was

not discharged for homosexuality,’’ but released, rather than

reassigned, ‘“‘because of his mediocre record. . .amd his homosex-

uality.’” App. 13a, n.3. (Emphasis in original.) The court con-

cluded ‘‘there is no inconsistency between Woodward’s treatment

and the Navy’s practice of considering some homosexuals for

retention. Jd.’

3 The court, of course, could not discuss the Navy’s retention criteria,

since they remain unrevealed. Thus, the court could not determine whether under

the policy performance evaluation was relevant, let alone dispositive, or whether

the policy considered other factors such as (1) homosexual orientation only,

(2) evidence of acts, (3) aggravation or mitigation of acts depending on identi-

ty of partner (superior, subordinate, neither), or (4) occurrence of acts of duty

versus off duty, etc.

REASONS FOR GRANTING THE WRIT

THE FEDERAL CIRCUIT IMPROPERLY PRESUMED

CRIMINAL ACTS BY ENSIGN WOODWARD SOLELY

FROM HIS ACKNOWLEDGEMENT OF GAY ORIENTA-

TION AND NONSEXUAL ASSOCIATION.

In addressing the constitutional claims of homosexual ser-

vicemembers, the First, Seventh, Ninth and Tenth Circuits all

have distinguished gay orientation, or related speech and associa-

tion, from criminal homosexual acts. Ben-Shalom v. Marsh, ___

F.2d ___, No. 88-2771 slip. op. at 10-11 (7th Cir., August 7,

1989) (new Army regulation valid, prior language broadly man-

dating discharge of those with homosexual tendencies or interest

having been deleted); Watkins v. U.S. Army, 875 F.2d 699, 711,

n.18 (9th Cir. 1989) (en banc) (Army estopped from discharging

servicemember for any future acknowledgement of homosexuality,

but not for any future illegal homosexual act); see also 875 F.2d

at 712-716, 725 (concurring opinion) (Army regulations

discriminate on the basis of sexual orientation, in violation of

equal protection component of Fifth Amendment); 875 F.2d at

731 (concurring opinion) (same); Matthews v. Marsh, 755 F.2d

182, 184 (1st Cir. 1985) (remanding for consideration of previously

unavailable evidence of homosexual acts, but acknowledging

seriousness of First Amendment claim accepted by district court

prior to evidence’s availability); Rich v. Secretary of the Army,

735 F.2d 1220, 1229 (10th Cir. 1984) (plaintiff discharged for

falsely denying homosexual activity on enlistment application,

not ‘‘for advocating homosexuality or merely associating with

homosexuals’’).

The District of Columbia and Fifth Circuits have emphasized

the same distinction in other contexts. Padula v. Webster, 833

F.2d 97, 102 (D.C. Cir. 1987) (persons who engage in homosex-

ual conduct not a suspect or quasi-suspect class; classification

at issue ‘‘focuses only on homosexual conduct, not homosexual

status’’); Doe v. Casey, 796 F.2d 1508, 1522 (D.C. Cir. 1986)

(noting unresolved ‘‘difficult issue of whether an agency of the

federal government can discriminate against individuals merely

because of sexual orientation’’) (emphasis in original); aff’d in

part, rev’d in part sub nom Webster v. Doe, 486 U.S. ___, 100

L.Ed.2d 632 (1988); Baker v. Wade, 774 F.2d 1285, 1287 (Sth

Cir. 1985) (en banc) (denying rehearing, noting ‘‘statute [prohibit-

ing homosexual sodomy] is directed at certain conduct, not at

a class of people’’).

The Federal Circuit’s opinion in this case also acknowledged

the distinction, App. 26a, n.6, but declined to invoke it. Instead,

the court presumed Ensign Woodward was in the class, ‘‘homo-

sexuals,’’ defined by the court as those who commit, or have com-

mitted, criminal homosexual acts. App. 36a-37a. It did so despite

his denial of homosexual acts on his enlistment form; absent any

evidence of homosexual acts committed, attempted, or even

intended by him; and solely because he acknowledged his sexual

orientation and nonsexual association with homosexuals, and

failed to ‘‘claim’’ celibacy.

No other circuit has presumed a servicemember guilty of

criminal homosexual acts merely from her or his acknowledge-

ment of homosexual tendencies and nonsexual association.‘ Nor

4 The Seventh Circuit heid Ben-Shalom’s admission of ‘‘desire’’ to engage

in homosexual acts ‘‘compelling evidence’’ she ‘‘has in the past and is likely

to again engage in such conduct,” slip op. at 17-18, but the court distinguished

‘‘desire’’ from mere ‘“‘tendencies’’ or ‘‘interest.’’ Jd. at 10. The court also said

Ben-Shalom was free to associate with lesbians. Jd. Here, the record shows

the Navy released Ensign Woodward merely for acknowledging homosexual

tendencies and associating with a gay man. His affirmative answer on the enlist-

ment form was to a question posed in the disjunctive: are you attracted sexual-

ly to or do you desire sexual activity with a person of your sex. No inference

of past homosexual conduct can be drawn from this answer, moreover, since

it was accompanied by explicit denial of any past homosexual acts. Finally,

in his letter to the Chief of Naval Personnel, Ensign Woodward said that he

had been primarily homosexually oriented since he had become sexually aware,

indicating a substantial history of mot acting on his homosexual tendencies.

has any other circuit required a ‘‘claim of celibacy’’ as a precon-

dition to relief from sexual orientation discrimination.

The Federal Circuit’s decision violates well-established can-

nons of appellate review. It is a cardinal principle of federal pro-

cedure that a court of appeals must decide a case based on the

facts and the record before it. An appellate court is not at liber-

ty to presume the existence of facts not in the record, especially

where, as here, the facts are so crucial to the disposition of the

case.

The Federal Circuit’s analysis is also contrary to Mt. Healthy

City Board of Education v. Doyle, supra. Petitioner established

the reason for his release was his professing gay orientation and

associating nonsexually. Therefore, it was the Navy’s burden to

prove, if it so claimed, that Ensign Woodward would have been

released for an independent reason, i.e., for iomosexual acts.

Id. The Navy, however, made no such claim, and petitioner was

under no obligation to anticipate and disprove, by claim of celi-

bacy, a defense never raised. By equating Ensign Woodward with

persons guilty of criminal acts, and on that premise deeming his

equal protection claim foreclosed by Hardwick, the court com-

mitted fundamental error.

This Court should issue the writ, reverse the Federal Circuit,

and remand with instructions to address Woodward’s claim of

discrimination based on gay orientation, acknowledgement

thereof, and nonsexual association. We show below, moreover,

that the first step should be remand to the Claims Court for proof

bythe Navy of the interests served by its sexual orientation

discrimination, and its intolerance of Ensign Woodward’s non-

disruptive speech and nonsexual association.

II.

THE FEDERAL CIRCUIT PREMATURELY DECIDED

THE EQUAL PROTECTION QUESTION, WITHOUT EVI-

DENCE OF ANY INTERESTS SERVED BY THE NAVY’S

DISCRIMINATION.

In Watkins, Matthews, and Ben-Shalom the Army articu-

lated, with evidence, the interests served by its discrimination,

or its intolerance of speech and association.’ In Beller v. Mid-

dendorf, 632 F.2d 788 (9th Cir. 1980), the Navy submitted

evidence of interests served by discharge of servicemembers for

homosexuals acts.

The Navy submitted no such evidence here.‘ It asserted its

‘*independent basis’’ defense instead. When the Federal Circuit

rejected the defense, the court should have remanded, not decided,

the questions pretermitted by the Claims Court.

Proper adjudication of equal protection claims requires, ai

the very least, government articulation of the interests served by

5 In Ben-Shaiom the court held that where ‘“‘compelling evidence’’ estab-

lishes both past homosexual acts and likelihood of future acts, the Army need

not take the risk that a servicemember will be unable to resist her desire for

homosexual activity. In the present case no similar ‘‘compelling evidence’’ is

present. See n.4, supra. Further, the Navy never has articulated an interest in

avoiding risk of future acts, as a basis for releasing those who merely have

homosexual tendencies or who assoc‘ate nonsexually. Navy policy applicable

at the time allowed retention of some officers who had committed homosex-

ual acts. Further, if the Navy were to assert on remand ‘‘risk of acts’’ as the

reason for its release of Ensign Woodward, a serious question would be pre-

sented whether sufficient evidence establishes the risk. Such an assertion, more-

ever, would have all the appearances of an impermissible post hoc rationaliza-

tion, rather than a bona fide contemporaneous reason. Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 419 (1971).

6 Indeed, the government’s brief in the Federal Circuit contains no mention

at all of petitioner’s equal protection claim.

discrimination. See, McGinnis v. Royster, 410 U.S. 263, 270

(1972). In most cases, a court may presume the validity of govern-

ment action, Cleburne v. Cleburne Living Center, 473 U.S. 432,

440 (1985) (classification based on mental retardation), but where

courts examine criteria deserving suspicion, or affecting impor-

tant interests, no presumptions apply. The government bears the

burden of justification, as well as articulation. Kirchberg v.

Fenstra, 450 U.S. 455, 460, n.7 (1981) (sex discrimination).

In militarv cases it is particularly important for the govern-

ment «vo articulate the interests served by its action, for military

judgments on matters requiring military expertise are entitled to

deference. Rostker v. Goldberg, 453 U.S. 57, 65-67 (1981). A

court cannot defer to the unknown and, prior to according defer-

ence, must determine whether military reasoning in fact flows

from military expertise.

Discrimination against gay-oriented men certainly appears

less rational than special treatment of the mentally retarded, see

Cleburne, and, in the military context, less rational than dis-

crimination on the basis of sex. See Rostker. Unlike gender

discrimination, here the Navy’s discrimination cannot be defended

on the basis of differences in physical capacity. Indeed, the con-

curring opinion in Watkins argues for strict scrutiny of sexual

Orientation discrimination by the military. 875 F.2d 724-728.

Even if strict scrutiny is not applied,’ the Navy’s articulated

reasons must be examined to determine their entitlement to defer-

ence, and to ensure they do not merely reflect government sanc-

tion of private prejudice. Cleburne, 473 U.S. 448; see also, Wat-

kins, 875 F.2d 728-729 (concurring opinion; Army’s bases for

sexual Orientation discrimination ‘‘illegitimately cater to private

biases’’).

7 The Federal Circuit’s opinion, at App. 38a, incorrectly asserted that peti-

tioner failed to argue his equal protection claim under the rational basis stan-

dard. See petitioner’s reply brief in the Federal Circuit, at 1415.

The Federal Circuit improperly decided Woodward’s equal

protection claim in 2 vacuum, absent any evidence of interests

served by the Navy’s action.

Il.

THIS SAME ERROR APPLIES TO PETTTIONER’S FIRST

AMENDMENT CLAIMS; ALSO, THE COURT OF APPEALS

ERRED IN HOLDING HIS STATEMENTS UNPROTECTED,

AND NOT ON A MATTER OF PUBLIC CONCERN.

The First Amendment rights of government employees and

servicemembers are determined by balancing their interests in par-

ticular expression or association against any government interests

adversely affected. Goldman v. Weinberger, 475 U.S. 503 (1986);

Connick v. Myers, 461 U.S. 138, 140 (1983). Essential to this

undertaking is articulation by the government of the interests

deemed harmed by the speech or association it has punished.

This the Navy never did. Its brief below asserted simply that

Ensign Woodward’s sitting in the officer’s club with a homosexual

enlisted man and his acknowledgement of homosexual feelings

were not protected by the First Amendment, Govt. Fed. Cir. Br.

at 12, as if the conduct in the club were not association and the

acknowledgement, not speech.

As previously noted, the Federal Circuit never addressed the

association claim, but as to the speech claim it accepted the gov-

ernment’s argument. Citing Connick, it held Ensign Woodward’s

statements ‘‘not entitled to First Amendment protection’’ because

they were made ‘‘for personal reasons, not to inform the public

of‘matters of general concern.’’ App. lla, n.2, quoting Fiorillo,

79§ F.2d 1550.

This Court’s opinion in Connick, however, repeatedly stated

that speech even on private matters is not ‘‘totally beyond the

protection of the First Amendment.’’ 461 U.S. 147, 143. Ensign

Woodward’s speech, moreover, occurred in official communica-

tion, while on military duty. He did not speak for ‘‘personal’’

reasons. The topic, furthermore, was hardly one of no interest

to the public. Connick, 461 U.S. 146 (employee’s private com-

munication with employer about employer’s ‘‘allegedly racially

discriminatory policies involved a matter of public concern,’’

citing Givhan v. Western Line Consolidated School District, 439

U.S. 410 (1979)). Indeed, the Army has argued that gays’ presence

in the military is a matter of public concern. See Watkins, 895

F.2d 729 (concurring opinion).

Unlike the employee’s speech in Connick, Ensign Wood-

ward’s speech was not disruptive. Indeed, we can perceive no

Navy interest that was in any way harmed by his statements.

Given the importance of the issues in this case, Ensign Wood-

ward’s speech claim, governed by Connick’s balancing test, is

appropriate for resolution in the federal courts. See Connick,

461 U.S. 147. The Federal Circuit erred in rejecting this claim

without even inquiring why the Navy saw fit to punish Wood-

ward’s statements."

8 The Seventh Circuit held Ben-Shalom’s desire to commit homosexual

acts, rather than her acknowledging this desire aloud, was the cause of the Army’s

refusal to re-enlist her, slip op. at 14, but the same cannot be said here. The

question whether Ensign Woodward’s statements caused his release was pre-

termitted by the Claims Court when it accepted the Navy’s ‘independent basis”’

theory. The Navy never has denied that Ensign Woodward’s statements, either

to Commander Moore or in his letter to the Chief of Naval Personnel, caused

his release. Aside from its ‘independent basis’’ theory, the Navy las asserted

only that such statements are unprotected by the Firrt Amendment.

IV.

THE FEDERAL CIRCUIT NEVER DECIDED ENSIGN

WOODWARD’S FIRST AMENDMENT ASSOCIATION

CLAIM.

It is ironic that, as we have noted, the Federal Circuit never

addressed petitioner’s First Amendment association claim. The

only snippet in the record offering a possible reason why the Navy

deemed Ensign Woodward a threat to its interests pertains to this

claim.

The Chief of Naval Personnel’s advice to the Correction

Board stated the meeting in the Subic Bay Officer’s Club ‘‘could

be characterized as a public flaunting of [Ensign Woodward’s]

beliefs’’ constituting ‘‘sufficient basis’’ for his release. This

**public flaunting’’ rationale, based solely on Woodward’s being

seen in public with a servicemember undergoing discharge for

homosexuality, reflects explicit hostility to First Amendment asso-

ciational nights.

The Court should require the Federal Circuit to address this

claim, the appropriate action again being remand to the Claims

Court.

Vv.

IN REJECTING PETITIONER’S NONCONSTITUTIONAL

CLAIM, THE FEDERAL CIRCUIT COMMITTED THE SAME

ERROR NOTED IN BERG V. CLA YTOR, 591 F.2d 849 (D.C.

Cir. 1978), A DECISION WELL SUPPORTED BY THIS

COURT’S PRECEDENTS.

In Berg the District of Columbia Circuit held the Navy obliged

to explain its criteria for retaining on active duty some, but not

all homosexual officers. As the court more fully stated in the com-

panion case of Matlovich v. Secretary of the Air Force, 591 F.2d

852 (D.C. Cir. 1978), this holding was required by basic prin-

ciples of administrative law. The uncontroversial Berg-Matlovich

holding is well supported by this Court’s decisions. See, e.g.,

Motor Vehicle Manufacturers Association v. State Farm Mutual

Automobile Insurance Company, 463 U.S. 29, 43, 47 (1983)

(unexplained, inconsistent application of administrative policy

is arbitrary and capricious).

In rejecting petitioner’s nonconstitutional claim, the Federal

Circuit committed the same error noted in Berg. The court failed

to require the Navy to articulate its retention criteria and apply

them to Ensign Woodward’s case. That Ensign Woodward’s per-

formance was deemed average does not decide the issue. No other

ensign in his category was released the same year. Second, there

is no indication that performance was a criterion, let alone the

only criterion, relevant under the Navy’s homosexual retention

policy. See n.3, supra.

The Court should direct the Federal Circuit to remand the

case to the Claims Court for thorough examination of this issue.

Relief for petitioner on the nonconstitutional claim would avoid

the need to resolve the constitutional questions presented. Hence,

the claim’s importance to the case.

CONCLUSION

For these reasons a writ of certiorari should issue to review

the judgment of the United States Court of Appeals for the Fed-

eral Circuit.

Respectfully submitted,

DANIEL M. SCHEMBER

GAFFNEY, SCHEMBER &

KETE, P.C.

1120 G Street, N.W.

Suite 200

Washington, DC 20005

Counsel of Record for Petitioner

JOEL PAUL

Assistant Professor of Law

Washington College of Law

The American University

Of Counsel

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

86-1283

JAMES M. WOODWARD,

Appellant,

UNITED STATES,

Appellee.

DECIDED: March 29, 1989

Before FRIEDMAN, SMITH and ARCHER, Cir-

cuit Judges. ARCHER, Circuit Judge.

Appellant James M. Woodward appeals

the summary judgment of the United

States Claims Court, No. 692-83C (March

31, 1986), upholding the decision of the

Department of the Navy (Navy) to release

him from active duty. We affirm that

judgment, but on other grounds.

Ye.

Background

Woodward enlisted in the U.S. Naval

Reserve in June 1972. at that time, he

completed a fitness questionnaire in

which he indicated, according to the

trial court, that “he was attracted sex-

ually to, or desired sexual activity

with, members of his own sex [but that

he had never] engaged in homosexual con-

duct." Despite this acknowledgement.1/

Woodward was accepted into Navy flight

school in June 1972.

1/ The Navy's stated policy at that

time was to separate homosexuals and

“(m]lembers involved in homosexuality"

from the service, see e.g., Secretary of

the Navy Instruction 1900.9A (July 31,

1972 (SECNAVINST 1900.9A). “Homosexu-

ality" was defined as including “the

expressed desire, tendency, or proclivi-

ty toward [homosexual] acts whether or

not such acts are committed." Id. It

was conceded, however, that while this

regulation provided for no exceptions,

the Navy did retain some officers with

homosexual tendencies.

After completing flight school,

Woodward was assigned to Carrier

Airborne Early Warning Squadron 116, a

fleet operational squadron assigned to

the Philippines. While stationed there

in 1974, Woodward visited the Subic Bay

Officers' Club in the company of an

enlisted man who was awaiting discharge

from the Navy because of homosexuality.

Woodward's commanding officer subse-

quently questioned him about the inci-

dent, at which time Woodward “admitted

his homosexual tendencies and stated

that since he knew no ‘gay' officers he

had sought the company of ‘gay' enlisted

men." The commanding officer then asked

Woodward to resign. When Woodward

refused, the commanding officer wrote to

the Chief of Naval Personnel recommend-

ing that Woodward be discharged.

Woodward informed the Chief of aval

Personnel in a September 17, 1974 letter

via his commanding officer that:

I am, and have been, since I

became sexually aware, pri-

marily homosexually oriented.

- « e I do, and will continue

to, associate with other

homosexuals.

* * *

I am well aware of the prob-

lems of social acceptance and

special problems of leader-

ship with which I will be

confronted as my associates

become aware of my homosexu-

ality.

For the good of both the Navy

and myself, I respectfully

request the chance to contrib-

ute to the defense of the

United States as an honest,

open, “gay" officer. I recom-

mend that the matter of my

homosexuality be dropped as a

matter of official concern.

The recommended discharge was not

processed and, pursuant to routine Navy

practice when a commanding officer's

discharge recommendation is not accep-

ted, Woodward was made available for re-

assignment or release from active duty.

Woodward's file was then reviewed by a

personnel officer in the office of the

Chief of Naval Personnel responsible for

grading i hebieiteni‘e performance

records and recommending whether the

Navy should reassign or release the

individual. According to the officer

who reviewed Woodward's file and other

officers with review responsibilities,

fitness reports comparable to Woodward's

reports usually received grades of "C"

or "D" and reserve officers who received

such grades were released from active

duty. A grade of "A" or "B“ was gener-

ally required for retention on active

duty. The record shows that the Navy

ranked Woodward below the cutoff point

for retaining a reservist for the fol-

lowing reasons: Woodward had acknowl-

edged his homosexuality; his fitness

reports, which were prepared by

Woodward's commanding officer prior to

Woodward's admission of homosexuality,

were “far from outstanding," leaving him

uncompetitive with other reserve offi-

cers available for reassignment or

release; and his release would appropri-

ately implement the Navy policy (at that

time) of reducing the number of reserve-

officers on active duty.

Woodward was released from active

duty on October 22, 1974 and reassigned

to the Naval Air Reserve Staff H-1l in

San Diego, California. He served there

without pay in an inactive reserve

status and received a promotion to

Lieutenant, junior grade. Later, at his

request, the Navy released him from

further reserve status. During this

period Woodward was passed over twice

for a further promotion and the Navy

thereafter discharged him when his six-

year term of service had been completed.

TRIAL COURT DECISION

Woodward initially brought this

action in the United States District

Court for the District of Columbia seek-

ing back pay and reinstatement to active

duty in the U.S. Naval Reserve. He

alleged in part that his release from

active status was in violation of his

constitutional rights of due process and

freedom of association. After prolonged

proceedings, including two appeals, it

was ascertained that the district court

lacked jurisdiction under 28 U.S.C.

§ 1346 (1982) because Woodward's pay

Claim exceeded $10,000. See Woodward v.

Moore, 451 F. Supp. 346 (D.D.C. 1978);

Woodward v. Moore, No. 78-2062 (D.C.

Cir. March 26, 1979); Woodward v. Moore,

25 Fair Emp. Prac. Cas. (BNA) 695

(D.D.C. 1981), vacated, Woodward v.

Moore, No. 81-2017 (D.C. Cir. July 28,

1982). this case was then transferred

to the Claims Court.

Before the Claims Court, Woodward

asserted that the Navy improperly and

unconstitutionally released him from

active duty because he admitted homosex-

ual tendencies. He contended that his

release violated the First and Fifth

Amendments of the United States

Constitution. The Navy challenged these

contentions, arguing that Woodward's -

release was based on his record and his

performance and, further, that the court

lacked jurisdiction to review the Navy's

action because of the discretion confer-

red on the Secretary of the Navy by 10

U.S.C. § 68l(a) (1982) (providing that

the Secretary may release a reservist

from active duty at any time). Both

parties moved for summary judgment.

The Claims Court recognized that the

Secretary was vested with wide discre-

tion to release a reservist from active

duty. The Claims court determined, how-

ever, that it could review such a per-

sonnel action for violation of constitu-

tional rights where such violations

would give rise to monetary claims. The

Claims Court then assumed that

Woodward's conduct was constitutionally

protected and reviewed Woodward's re-

release, under the guidelines of Mt.

Healthy City School District Board of

ins 10a

Education v. Doyle, 429 U.S. 274

(1977). It found that the Navy had

met its burden of showing by a pre-

ponderance of the evidence that the Navy

would have reached the same decision as

to Woodward's release, without regard to

the conduct claimed to be constitution-

ally protected, because his performance

ws below the level necessary to be

retained on active duty.

| ANALYSIS

On appeal, Woodward contends that

the Claims Court erred in its applica-

tion of Mt. Healthy City School District

Board of Education v. Doyle to this case

by finding the Navy had proved an inde-

pendent basis for his release. He fur-

ther contends that release from active

duty violated his constitutional rights

lla

to privacy and to equal protection under

the law.2/

The Navy, on the other hand, asserts

that the commanding officer's recommen-

dation to discharge Woodward, the Navy's

subsequent review of Woodwrd's record

for potential transfer or release, and

2/ woodward does not seriously con-

tend on appeal that his statements are

entitled to First Amendment protection.

Because Woodward's statements were made

"for personal reasons and not to inform

the public of matters of general con-

cern" they are not entitled to First

Amendment protection. Fiorillo v.

United States Dep't of Justice, 795 F.2d

1544, 1550 (Fed. Cir. 1986). "Mere pub-

lication does not clothe them with First

Amendment protection." Id.; Connick v.

Myers, 461 U.S. 138, 147-48 (1983). The

First Amendment protection to the advo-

cacy of homosexuality discussed in

Matthews v. Marsh, No. 82-0216 P, slip

Oop. at 20 n.18 (D. Me. April 3, 1984),

vacated and remanded, 755 F.2d 182 (lst

Cir. 1985) (“‘her overt on-campus in-

volvement in the Wild [sic] Stein Club

for “gays and lesbians"' . . . confirms

the conclusion that it is impossible to

separate the issue of Matthews' self-

(footnote continued)

12a

the decision to release Woodward from

active duty are all immune from judicial

review. The Navy further contends that

homosexuality is not constitutionally

protected conduct and, even if such con-

duct is constitutionally protected, that

the Navy met its burden of proving an

independent basis for deciding to

release Woodward.

We consider first the Navy's asser-

tion that the commanding officer's rec-

ommendation that Woodward be discharged,

the review for transfer or release, and

the Navy's subsequent decision to

release him from active duty are not

judicially reviewable.

2/ (footnote continued)

identification from a First Amendment

claim" (citation to exhibit omitted)) is

inapplicable to the instant case.

13a

The statutory authority given to the

Secretary of the Navy to release a

reserve officer from active duty is not

subject to any procedural or substantive

limitation. It is contained in 10

U.S.C. § 681 (a) (1982) and provides

that "the Secretary concerned may at any

time release a Reserve under his juris-

diction from active duty." The appli-

cable Navy instruction preserves the

discretion granted by that section and

does not provide an independent source

of procedural or substantive protec-

tion.3/ See Webster v. Doe, 108 S.Ct.

3/ Woodward's contention that he

was not afforded the benefit of the

Navy's admitted practice of retaining

some homosexuals while discharging

others is without merit. Woodward was

not discharged for homosexuality; rather

he was considered for reassignment, but

because of his mediocre record as an

officer and his homosexuality he was

aa (footnote continued)

l4a

2047, 2053 n.8 (1988), aff'g Doe v.

Casey, 796 F.2d 1508, 1520 (D.C. Cir.

1986). Cf. Sampson v. Murray, 415 U.S.

61, 71 (1974) (federal courts have

authority to review the claim of a dis-

charged governmental employee that the

agency effectuating the discharge has

not followed its administrative regula-

tions). Secretary of the Navy

Instruction 1920.6 (July 14, 1971)

(SECNAVINST 1920.6), setting forth "“pro-

cedures, regulations, and instructions

for implementation of statutes which

provide for the separation of officers

from the Navy and Marine Corps, termina-

3/ (footnote continued)

ultimately released from active duty

pursuant to 10 U.S.C. § 681. Conse-

quently, there is no inconsistency bet-

ween Woodward's treatment and the Navy's

practice of considering some homosexuals

for retention.

15a

tion of appointments, revocation of com-

mission and/or discharge, release from

active duty," provides as to reserve

officers:

c. Reserve Officers

(3) Release from Active

Duty. In the case of Reserve

officers of the Navy and

Marine Corps, the Chief of

Naval Personnel or the

Commandant of the Marine

Corps, respectively, may at

any time, for any reason,

release a Reserve officer

from active duty. ...

SECNAVINST 1920.6 ¢ 6(c)(3).

The Navy relies on Denby v. Berry,

263 U.S. 29 (1923), to support its posi-

tion that Woodward's release from active

duty was not subject to judicial review.

There, the Court explained that a stat-

ute and regulation requiring a hearing

before a Navy Retiring Board before an

officer could be retired did not limit

16a

the discretion of the President and the

Secretary of the Navy to release indivi-

duals from active service and put them

on inactive duty. It said:

Nowhere is there found any

limitation upon the discre-

tion of the Executive in this

regard. The orders in such

cases were in the nature of

military orders by the

Commander-in-Chief in the

assignment or withdrawal of

available forces to or from

duty for the good of the ser-

vice. Such orders of with-

drawal could not and did not

make members of the Naval

Reserve Force civilians.

They did not release them

from obligation under their

enrollment to render active

service again when ordered to

do so by the proper authority.

263 U.S. at 34.

The Navy also cites Alberico v.

United States, 783 F.2d 1024 (Fed. Cir.

1986), where we similarly held that

Alberico's release from active duty did

not deprive him of due process and that

17a

his "interest in remaining on active

duty was a mere expectancy, and there-

fore not entitled to protection as a

property right." 783 F.2d at 1027.

Moreover, Orloff v. Willoughby, 345 U.S.

83, 93094 (1953), cautions that "judges

are not given the task of running the

(military]. .. . The military consti-

tutes a specialized community governed

by a separate discipline from that of

the civilian." The judiciary therefore

must be “scrupulous not to interfere

with legitimate [military] matters.

oo « Id, at 94.

While the statute and cited authori-

ties indicate that the Secretary's dis-

cretion is generally unfettered, employ-

ment actions claimed to be based cn con-

stitutionally infirm grounds are never-

theless subject to judicial review. The

18a

Supreme Court's decision in Webster v.

Doe, 108 S.Ct. 2047 (1988), demonstrates

that the delegation of broad discretion

in employment matters on an agency head

does not preclude judicial review of

constitutional claims unless congres-

sional intent to do so is made clear.4/

Webster concerned reviewability under

the Administrative Procedure Act (APA),

5 U.S.C. §§ 701-706 (1982), of the deci-

sion of the Director of the Central

Intelligence Agency (CIA) to terminate

"an Agency employee whenever the

Director ‘shall deem such termination

necessary or advisable in the interests

4/ The Court explained that it

requires “this heightened showing in

part to avoid the ‘serious constitu-

tional question' that would arise if a

federal statute were construed to deny

any judicial forum for a colorable

constitutional claim." 108 S.Ct. at

2053.

19a

of the United States,' .. . not simply

when the dismissal is necessary or

advisable to those interests.” 103

S.Ct. (emphasis by the Court)... Such

language, according to the Court,

"strongly suggests that its implementa-

tion was ‘committed to agency discretion

by law'" under section 70l(a) of the

APA. Id. The Court determined, how-

ever, that Congress' grant of discre-

tionary authority to the Director was

not “meant to preclude consideration of

colorable constitutional claims arising

out of the actions of the Director pur-

Suant to that section." Id. at 2054.

It rejected the Director's position that

“all Agency employment termination deci-

sions, even those based on policies nor-

mally repugnant to the Constitution, are

given over to the absolute discretion of

20a

the Director, and are hence unreviewable

under the APA." Id.

Although Webster involved equitable

remedies under the APA, the same princi-

ples are applicable to pay claims under

the Tucker Act in the Claims Court.

Koster v. United States, 685 F.2d 407,

412 (Ct. Cl. 1982) (“Where ... there

is no problem of sovereign immunity,

executive discretion must be subject at

least to constitutional review." (foot-

note omitted)); cf£. Voge v. United

States, 844 F.2d 776, 781 n.2 (Fed.

Cir.), cert. denied, 109 S.Ct. 365

(1988). Accordingly, the Claims Court

was correct in holding that it had

jurisdiction in a claim for money dam-

ages -to consider Woodward's allegation

of violations of constitutional rights.

Koster v. United States, 685 F.2d at

2la

412; Padula v. Webster, 822 F.2d 97, 101

(D.C. Cir. 1987) ("even where agency

action is ‘committed to agency discre-

tion by .8W,' review is still available

to determine if the Constitution has

been violated").

II!

Woodward challenges the Claims

Court's decision on the basis that the

Navy failed to establish a defense under

Mt. Healthy City School District Board

of Education v. Doyle, 429 U.S. 274

(1977), because the Navy did not show by

a preponderance of the evidence that

Woodward would have been released from

active duty in the absence of his admis-

sion of homosexuality. The Supreme

Court in Mt. Healthy stated that "“[t]he

constitutional principle at stake is

sufficiently vindicated if such an

22a

employee is placed in no worse a posi-

tion than if he had not engaged in the

conduct. A borderline or marginal can-

didate should not have the employment

question resolved against him because of

constitutionally protected conduct."

Id. at 285-286. The evidentiary burden

of the Navy, assuming (as the Claims

Court did) that homosexuality is protec-

ted conduct, was to prove that it would

have taken the same actions “even in the

absence of the protected conduct." Id.

at 287. See Brown v. Bullard Indep.

School Dist., 640 F.2d 651, 653 (5th

Cir.) cert. denied, 454 U.S. 828 (1981).

The Claims Court in its opinion stated

that:

The [Navy] has introduced

credible evidence by personnel

officers who regularly review

files that even without con-

sideration of Woodward's homo-

sexual tendencies, he would

23a

have been recommended for

release at the time his record

was reviewed. In other words,

a Navy Ensign with a similar

record to [Woodward's] would

have been released if his file

had reached the reviewing

office at the same time

Woodward's file did. (Emphasis

added. )

The Court's reasoning, however, fails to

take into account that Woodward's file

would not have reached the reviewing

office at all had he not been homosexual

and admitted it to his commanding off-

icer. The Navy's statistical informa-

tion presented by Woodward shows there

were no other reserve officers in

Woodward's grade and category (132x)3/

who were released in 1975, or in the

prior or following years. The reason

3/ Four other ensigns were released

in 1975 but they were Student Naval

Flight Officers (137X).

24a

for this, according to the testimony of

Woodward's reviewing officer, was that

“ensigns were not normally made avail-

able for rotation." Thus, the other 130

officers in Woodward's category who were

released in 1975 all were of the grade

of Lieutenant J.G. or above and none

were ensigns. There was also evidence

before the court that Woodward's ranking

by his commanding officer (before his

verbal acknowledgement of homosexuality)

would place him between the 50th and

60th percentile vis-a-vis his contempo-

raries, indicating that the files of a

large number of ensigns with lower

ranking never reached the reviewing

office in 1975.

Under these circumstances, the

testimony of the Navy reviewing offi-

cers that an officer having the same

25a

ranking as Woodward would have been

released had his file been reviewed does

not establish a Mt. Healthy defense.

The facts are clear that ensigns with

low rankings were not referred to the

reviewing office for reassignment or

release. Only because of his homosexu-

ality was Woodward referred for review

and it was, in part, the basis for his

release from active duty.

Woodward contends that because homo-

sexuality is protected under the consti-

tutional right to privacy, the Secretary

May not, consistent with the due process

clause of the Fifth Amendment, use

Woodward's admitted homosexuality as a

criterion for referring him for review

or as a basis for his release from

26a

active duty .6/ Because the Supreme

6/ tn describing himself, Woodward

at various times stated that “he was

attracted sexually to, or desired sexual

activity with, members of his own sex,"

that "since he knew no ‘gay' officers he

sought the company of ‘gay' enlisted

men," that he “[{does], and will continue

to, associate with other homosexuals,"

and that he wanted to remain in the Navy

"as an honest, open, ‘gay' officer."

Also, Woodward visited an Officers’ Club

with an enlisted man who was awaiting

discharge from the Navy for homosexuali-

ty. There is no claim by Woodward that

he is celibate. Nevertheless,

Woodward's counsel, in his briefs,

attempted to characterize Woodward as

having only homosexual tendencies.

While acts of sodomy have not been

expressly admitted by Woodward, in view

of the above we need not address the

factual situation where there is action

based solely on "status as a person with

homosexual orientation." benShalom v.

Marsh, F. Supp. , No.

88-C-468, slip op. at 2 (E.D. Wis.

January 10, 1989) (no proof she “had

engaged in homosexual acts or had done

anything that could be interpreted as a

homosexual advance toward another female

soldier"). See also benShalom v.

Secretary of Army, 489 F. Supp. 964

(E.D. Wis. 1980). Cf. Watkins v. United

States Army, 847 F.2d 1329 (9th Cir.),

reh'gq en banc ordered, 847 F.2d 1362

(1988) (en banc) (government suggested

(footnote continued)

27a

Court held in Bowers v. Hardwick, 478

U.S. 186 (1986), that homosexual conduct

is not one of the fundamental rights

subject to heightened review under the

due process clause, we cannot agree with

Woodward.

In Hardwick, the Court recognized

that the due process clauses of the

Fifth and Fourteenth Amendments “have

been interpreted to have substantive

content, subsuming rights that to a

great extend are immune from federal or

state regulation or proscription." Id.

at 191. The Court noted that “rights

qualifying for heightened judicial pro-

tection . . . include[{] those fundamen-

tal liberties that are ‘implicit in the

6/ (footnote continued)

en banc rehearing on the basis that the

record showed that Watkins had engaged

in homosexual conduct).

28a

concept of ordered liberty,' such that

‘neither liberty nor justice would exist

if [they] were sacrificed,'" id. at

191-92 (quoting Palko v. Connecticut,

302 U.S. 319, 325-26 (1937), or, des-

cribed otherwise, “are ... those

liberties that are ‘deeply rooted in

this Nation's history and tradition.'"

Id. at 192 (quoting Moore v. East

Cleveland, 431 U.S. 494, 503 (1977)

(opinion of Powell, J.)).

In its opinion in Hardwick, the

Supreme Court reiterated that the right

of privacy concerned matters of the

family, marriage and/or procreation.

The reach of this line of

cases was sketched in Cary

v. Population Services

International, 43l U.S. 678,

19 - Pierce yv.

Society of Sisters, 268 U.S.

510 (1925), and Meyer v.

Nebraska, 262 U.S. 390

(1923), were described as

dealing with child rearing

29a

and education; Prince v.

Massachusetts, 321 U.S. 158

(1944), with family relation-

ships; Skinner v. Oklahoma

ex rel. Williamson, 316 U.S.

535 (1942), with procreation;

Loving v. Virginia, 388 U.S.

1 (1967), with marriage;

Griswold v. Connecticut, [381

U.S. 479 (1965)], and

Eisenstadt v. Baird, [405 U.S.

438 (1972)], with contracep-

tion; and Roe v. Wade, 410

U.S. 113 (1973), with abortion.

The latter three cases were

interpreted as construing the

Due Process Clause of the

Fourteenth Amendment to confer

a fundamental individual right

to decide whether or not to

beget or bear a child. Carey

v. Population Services

International, [431 U.S.] at

688-689.

478 U.S. at 190. The Court distin-

guished homosexuality on the basis that

it had "{nlo connection" with family,

marriage or procreation, id. at 191, and

rejected the notion that “any kind of

private sexual conduct between con-

senting adults is constitutionally insu-

lated." Id. The Court noted that Carey

30a

v. Population Services International,

431 U.S. 678 (1977), “twice asserted

that the privacy right, which the

Griswold line of cases found to be one

of the protections provided by the Due

Process Clause, did not reach so far."

Hardwick, 478 U.S. at 191 (citing Carey,

421 U.S. at 688 n.5, 694 n.17).

The Hardwick Court stated that it is

not “inclined to take a more expansive

view of [its] authority to discover new

fundamental rights imbedded in the Due

Process Clause" and that “({t]here should

be .. . great resistance to expand the

substantive reach of [that clause], par-

ticularly if it requires redefining the

category of rights deemed to be funda-

mental." Hardwick, 478 U.S. 194-195.

The Court therefore concluded that there

was no fundamental right of homosexuals

3la

to engage in consensual sodomy and

upheld the George state criminalizing

sodomy.

The Court's admonition against

taking an expansive view of authority to

discover new fundamental rights imbedded

in the due process clause counsels

against an extension of privacy rights

to homosexuality. Hardwick, 478 U.S.

194-195. As stated in Dronenburg, "(iJf

it is in any degree doubtful that the

Supreme Court should freely create new

constitutional rights, ... it is cer-

tain that the lower courts should not do

so." 741 F.2d at 1396 (footnote

omitted). Moreover, the Supreme Court

cases dealing with protected privacy

rights are essentially conclusions about

the particular rights enunciated and

cannot be readily applied in other fac-

32a

tual contexts. See Dronenburg v. Zech,

741 F.2d 1388, 1396 (D.C. Cir. 1984).

Protection of homosexuality as a private

right, therefore, is not an apparent or

necessary result that can be reached

from the Supreme Court's precedent. We

must therefore reject Woodward's claim

that homosexuality is constitutionally

protected under the right of privacy.

Woodward also argues that the Navy

discriminated against him on the basis

of his homosexuality, and that this

violated his constitutional right to

equal protection.2/ We find Hardwick

7/ The principles applicable to the

states pursuant to the Fourteenth

Amendment's equal protection clause are

applied to the Federal Government as a

component of the Fifth Amendment due

process clause. Beller v. Middendorf,

632 F.2d 788, 801 n.8 (1980), cert.

(footnote continued)

33a

equally persuasive, if not dispositive,

of this argument as well.

Under equal protection analysis, the

Supreme Court has fashioned a "two-

tiered" approach to judicial review.

Under this approach, the Court applies a

"strict scrutiny" or “compelling reason"

Standard "only when the classification

impermissibly interferes with the exer-

cise of a fundamental right or operates

to the peculiar disadvantage of a sus-

pect class." Massachusetts Bd. of

Retirment v. Murgia, 427 U.S. 307,

7/ (footnote continued)

denied, 452 U.S. 905 (1981) and 454 U.S.

855 (1981); see Weinberger v.

Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)

("Fifth Amendment equal protection

claims... . precisely the same as equal

protection claims under the Fourteenth

Amendment."); Schlesinger v. Ballard,

419 U.S. 498, 500 n.3 tIS753; Bolling v.

Sharpe, 347 U.S. 497, 499 (1954).

34a

312-13 (1976) (footnotes omitted) .8/

Otherwise, discriminatory government

action need only be justified upon a

rational basis standard. Id. at 314.

The Supreme Court has identified

only three suspect classes: racial sta-

tus, Loving v. Virginia, 388 U.S. l, ll

(1976), Strauder v. West Virginia, 100

U.S. 303, 307-08 (1879); national

ancestry and ethnic origin, Korematsu v.

United States, 323 U.S. 214, 216 (1944),

Stauder v. West Virginia, 100 U.S. 307-

08; and alienage, Graham v. Richardson,

403 U.S. 365, 372 (1971). Two other

classifications have been identified by

8/ Because the Supreme Court held

in Bowers v. Hardwick that there exists

no fundamental right to engage in homo-

sexual conduct, we need not further

consider Woodward's claims from that

standpoint.

35a

the Court as quasi-suspect:2/ gender,

Mississippi Univ. for Women v. Hogan,

458 U.S. 718, 723-24 (1982), and illegi-

timacy, Lalli v. Lalli, 439 U.S. 259,

265 (1978). Woodward would have this

court add homosexuality to that list.

This we decline to do.

Homsexuality, as a definitive trait,

differs fundamentally from those defin-

ing any of the recognized suspect or

quasi-suspect classes. Members of rec-

ognized suspect or quasi-suspect

classes, e.g., blacks or women, exhibit

immutable characteristics, whereas homo-

sexuality is primarily behavioral in

9/ The standard applied to a

“quasi-suspect class is that the classi-

fication “must serve important govern-

ment objectives and must be substan-

tially related to the achievement of

those objectives." Craig v. Boren, 429

U.S. 190, 197 (1976).

36a

mature. See Bowen v. Gilliard, 483 U.S.

587, __, 107 S.Ct. 3008, 3018 (1987)

("The disadvantaged class is ... not

- « e ‘Suspect' or ‘quasi-suspect' ...

they do not exhibit obvious, immutable,

or distinguishing characteristics that

define them as a discrete group" (quot-

ing Lyng v. Castillo, 477 U.S. 635, 638

(1986))); Frontiero v. Richardson, 41ll

U.S. 677, 686 (1973). The conduct or

behavior of the members of a recognized

suspect or quasi-suspect class has no

relevance to the identification of those

groups.

After Hardwick it cannot logically

be asserted that discrimination against

homosexuals is constitutionally infirm.

We agree with the court in Padula v.

Webster that "there can hardly be more

palpable discrimination against a class

37a

than making the conduct that defines the

Class criminal." 822 F.2d 97, 103 (D.C.

Cir. 1987) .10/

Accordingiy, we conclude that

Woodward is not a member of a class to

which heightened scrutiny must be

afforded nor that the Navy must have a

compelling interest to justify discrimi-

nation against Woodward because of his

admitted homosexuality.

The Navy's challenged practice

10/ Sodomy, an act criminalized by

a Georgia state statute which was found

to pass Constitutional muster in

Hardwick, 478 U.S. at 196, is usually

defined broadly in the relevant state

criminal statutes to include "any sexual

act involving the sex organs of one per-

son and the mouth or anus of another."

See, e.g., id. at 188 n.l. These prac-

tices are the most common sexual prac-

tices of homosexuals, with oral sex

being the primary form of homosexual

activity. See A. Bell & M. Weinberg,

Homosexualities 106-11, 327-30 (1978).

38a

regarding homosexuals need only be

rationally related to a permissible gov-

ernmental end to pass constitutional

muster. See City of Cleburne v.

Cleburne Living Center, 473 U.S. 432,

441-42 (1985). Although this issue was

not specifically argued by Woodward, we

assume it to be inherent in his claim to

be a member of a suspect class entitled

to heightened scrutiny.

We are convinced that the Navy's

policy on homosexuality is rationally

related to a permissible end. See

Dronenburg v. Zech, 741 F.2d at 1397-98;

Beller v. Middendorf, 632 F.2d at

811-12. As stated in Dronenburg:

The Navy's policy requiring

discharge of those who enage in

homosexual conduct serves legi-

timate state interests which

include the maintenance of "dis-

Cipline, good order and mor-

ale{,] . . . mutual trust and

confidence among service members,

39a

- « « insur[ing] the integrity

of the system of rank and com-

mand, . . . recruit[ing] and

retain[ing] members of the naval

service ...and... pre-

vent({ing] breaches of security."

SEC/NAV 1900.9D (Mar. 12, 1981).

We believe that the policy

requiring discharge for homosex-

ual conduct is a rational means

or achieving those legitimate

interests. See Beller v.

Middendorf, 632 F.2d 788, 812

(9th Cir. (1980]), cert. denied,

452 U.S. 905, 101 S.Ct. 3030, 69

L.Ed.2d 405 £1981]. The unique

needs of the military, "a spe-

cialized society separate from

civilian society," Parker v.

Levy, 417 U.S. 733, 743, 94 S.Ct.

47, 2555, 41 L.Ed.2d 439

(1974), justify the Navy's deter-

mination that homosexual conduct

impairs its capacity to carry

out its mission.

741 F.2d at 1398 (appendix citation

omitted).

Special deference must be given by a

court to the military when adjudicating

matters involving their decisions on

discipline, morale, composition and the

like, and a court should not substitute

40a

its views for the "considered profes-

sional judgment" of the military.

Goldman v. Weinberger, 475 U.s. 503, 508

(1986); Rostker v. Goldberg, 453 U.S.

57, 65-66 (1981); Orloff v. Willoughby,

345 U.s. 83, 93-94 (1953). In Beller v.

Middendorg, Judge, now Justice, Kennedy

said that "constitutional rights must be

viewed in the light of the special cir-

cumstances and needs of the armed

forces." 632 F.2d at 810. We think

this is particularly true where, as

here, the Secretary was given extremely

broad discretion by Congress to release

a reserve officer from active duty at

any time, and the applicable regulations

do not in any way limit that discretion.

See 10 U.S.C. § 681(a) (1982);

SECNAVINST 1920.6 (July 14, 1971);

SECNAVINST 1900.9A (July 31, 1972).

4la

We therefore affirm the judgment of

the Claims Court on different grounds

for the reasons set forth above.

AFFIRMED

42a

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON, DC 20370

JJC:mb

28 February 1977

LTJG James M. Woodward, USNR

4450 Oregon Avenue, Apt. 8

San Diego, California 92116

Dear Lieutenant Woodward:

Reference is made to your application

for correction of your naval record

under the provisions of Title 10 U.S.C.

1$52.

Under long established rules followed by

the courts and administrative boards, a

presumption of regularity attaches to

official records. Consonant therewith,

the burden of proof is on a Petitioner

to show by documentary evidence that an

error has occurred or an injustice has

43a

been suffered.

Your allegations of error and injustice

have been reviewed in accordance with

administrative regulations and proce-

dures applicable to the proceedings of

this Board. Documentary material con-

sidered by the Board consisted of your

application, together with all material

submitted in support thereof, naval

records, and applicable statutes, regu-

lations and policies.

After careful and conscientious con-

Sideration of the entire record, the

Board determined that insufficient evi-

dence has been presented to indicate

probable material error or injustice.

Accordingly, your application has been

denied.

It is regretted that the circumstances

of your case are such that favorable

44a

action cannot be taken. You are privi-

leged to submit new and material evi-

dence for consideration. As explained,

however, the burden is on you to show

that an error or injustice has occurred.

Sincerely,

SIGNED

JOHN E. CORCORAN, JR.

Executive Secretary

Copy to: David Gespass, Esquire

Gespass & Finzel

612 Lexington Place, N.E.

Washington, D. C. 20002

45a

James Mark WOODWARD, Plaintiff

Vv.

Commander J.A. MOORE, et

al., Defendants

Civ. A. No. 76-1199.

UNITED STATES DISTRICT COURT,

DISTRICT OF COLUMBIA.

May 31, 1978.

MEMORANDUM OPINION AND ORDER

BARRINGTON D. PARKER, District

Judge.

James M. Woodward, a former United

States Naval Air Reservist, brings this

action against several defendants

including his former immediate command-

ing officer, the Secretary of the Navy

and other Navy officials, seeking rein-

statement to active duty in the United

States navy, back pay and other relief.

Cross motions for summary judgment

46a

have been filed by the parties. After a

consideration of the administrative

record, memoranda of points and authori-

ties, and argument of counsel, the Court

determines that the defendants are

entitled to summary judgment and the

complaint should be dismissed.

The uncontroversial material facts

may be briefly stated. Plaintiff

Woodward was commissioned as an Ensign

in the United States Naval Reserve in

October, 1972. He was assigned to

active duty status, received additional

training as a naval flight officer, and

served an that capacity through the

summer of 1974. In September, 1974,

after Woodward was seen in an officers'

club associating with an enlisted man

who was being separated from duty for

“

47a

homosexual activities, he admitted to

his commanding officer that he had homo-

sexual tendencies. Because of these

matters plaintiff was requested to

resign. He refused to do so, explaining

that he wanted to finish his term of

obligated service. His commanding offi-

cer, Commander Moore, then advised him

that he would be administratively sepa-

rated. On September 27, 1974, a recom-

mendation was submitted to the Chief of

Naval Personnel that plaintiff be admin-

istratively processed for discharge

under favorable conditions..

That recommendation was not accepted

and on October 4, 1974, the Chief of

Naval Personnel ordered plaintiff to

report for separation processing.

Thereafter, on October 22, he was

released from active duty and assigned a

48a

reserve position in California, where he

served until February, 1975. Later, at

plaintiff's request, he was released

from further active reserve duty. He

applied for relief before the Board of

Correction of Naval Records, claiming

error in the action by the Chief of

Naval Personnel. The application was

denied. Woodward remains an Ensign in

the Naval Air Reserve and he has not

been discharged from the Navy.

tI.

(1] It is a well-established propo-

Sition that officers in the armed forces

of the United States have no constitu-

tional right to be promoted or retained

and their services may be terminated at

any time with or without reason. Pauls

v. Secretary of Air Force, 457 F.2d 294,

297 (lst Cir. 1972). As a reserve offi-

49a

cer, the plaintiff's change in status

was a matter committed to the sole dis-

cretion of the Secretary of the Navy or

the President of the United States. As

the Supreme Court noted in commenting on

the 1916 statute that created the Naval

Reserve Force.

[I]t is quite evident ...

that members of this force

occupied two statuses, one

that of inactive duty, and

the other of active service.

It is further clear that it

was within the power of the

President, and of the

Secretary of the Navy acting

for him, to change the men-

bers of the Reserve Force

from one status to the other.

- « « Orders releasing indi-

viduals from active duty were

Clearly within the power of

the President and of the

Secretary of the Navy acting

for him in the administration

of the act.

Denby v. Berry, 263 U.S. 29, 33, 44

S.Ct. 74, 75, L.Ed. 148 (1923).

1 Naval Appropriation Act of Aug. 29,

1916, ch. 417, 39 Stat. $56, $87.

50a

(2] Title 10 U.S.C. § 681, the

current statute relative to the service

-nd assignment of reservists, provides

in part:

(a) Except as otherwise pro-

vided in this title, the

Secretary concerned may at any

time release a Reserve under

his jurisdiction from active

duty.

This statute has been recognized as

Clear authority for the release of a

reservist from active duty with the

determination of the conditions and

circumstances governing such release

remaining within the sound discretion of

the Secretary of the Navy. Abruzzo v.

United States, 513 F.2d 608 (Ct.Cl.

1975); Denton v. United States, 204

Ct.CcCl. 188 (1974); cert. denied, 421

U.S. 963, 95 S.Ct. 1949, 44 L.Ed 449

(1975); Mercereau v. United States, 155

ct.Cl. 157 (1961). The use of

5la

Woodward's admission of homosexual ten-

dencies and his association with homo-

sexuals as a basis for the exercise of

that discretion did not result in in-

vidious discrimination in violation of

due process, nor in a violation of his

right to freedom of association. Berg

v. Claytor, 436 F.Supp. 76 (D.D.C.

1977), appeal docketed, No. 77-1785

(D.C.Cir. Aug. 29, 1977). Woodward's

claims that his status was changed for

unlawful reasons must therefore be

rejected.

[3] Woodward also claims procedural

flaws in his release from active status.

He claims that his discharge was pre-

cluded by the "national emergency"

exception of § 681(b), which provides:

(b) In time of war or of

national emergency declared by

Congress or the President

after January 1, 1953, a mem-

52a

ber of a reserve component may

be released from active duty .

(other than for training) only

if--

(1) a board of officers

convened at his request

by an authority designated

by the Secretary concerned

recommends the release and

the recommendation is

approved;

(2) the member does not

request that a board be

convened; or

(3) his release is

otherwise authorized by

law.

While such procedural guarantees do

limit the exercise of the Secretary's

discretion, see Roberts v. Vance, 119

U.S.App.D.C. 367, 343, F.2d 236 (1964),

it does not appear that § 681(b) applies

to the present situation.

Two national emergencies were in

effect at the time of Woodward's assign-

ment to inactive status and would appear

53a

to call § 681(b) into play.2 The first

declaration related to a work stoppage

by United States Postal Service employ-

ees in early 1970,3 and the other con-

cerned an unfavorable balance of pay-

ments position of the United States in

1971 which threatened the country's

trade and international competitive

position.* The first of these, dealing

with the postal strike, is the only one

of the two relevant to Woodward's situ-

ation, since it alone involved the call-

up of reserve forces due to the declared

2 Section 68l1(b) refers only to

national emergencies occurring after

January 1, 1953. National emergencies

declared prior to that date do not

provide a basis for the procedural

rights contained in the statutory

provision.

3. proclamation 3972, March 23, 1970.

4 proclamation 4074, August 15, 1971.

34a

emergency.> That strike, however, was

short-lived and its effects long over by

the time of Woodwrd's reassignment;

there was no requirement that his

request for a board of officers under

§ 681(b) be granted.6

[4] Woodward also contends that the

procedures set out in Article

3830160(6), Bureau of Naval Personnel

Manual, governed his release from active

5 The legislative history of § 681(b)

indicates that it was enacted to pro-

vide a right of review to a reservist

who was being involuntarily released

when other reservists were being

involuntarily called to active duty.

1952 U.S. Code Cong. & Admin. News at

2036. In limited national emergen-

cies, such as the two applicable here,

§ 681(b) would be logically applicable

only if reserves were called to meet

the emergency.

6 There are other exceptions to the

Secretary's discretion under § 681,

none of which are applicable to

Woodward. See, e.g., 10 U.S.C. §$§ 679

and 680 (Active Duty Agreements); 10

U.S.C. § 163(d) (Limitation on

Separation).

55a

duty and were not followed. Specifi-

cally, he argues that a recommendation

for release and submission of a special

fitness report from his commanding

officer were required. He also contends

that he was denied a seein: a

His reliance on Article 3830160(6)

is misplaced. The Article provides

safeguards for officers who are being

permanently separated from service and

whose appointment is being revoked. No

punitive action is reflected in the

plaintiff's personnel folder nor does

his release from active duty status

stigmatize him in any way or reflect

that his service was other ‘than

honorable. See Sims v. Fox, 505 F.2d

857. (Sth Cir. 1974), cert. denied, 421

U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678

(1975); Knehans v. Callaway, 403 F.Supp.

56a

290 (D.D.C. 1975); see also Kennedy v.

Secretary of Navy, 131 U.S.App. D.C. 39,

401 F.2d 990 (1968). While Commander

Moore did originally recommend an admi-

nistrative discharge, the Secretary of

the Navy elected only to release the

plaintiff from active duty as a reser-

vist. The Secretary's action was per-

missible and pursuant to statutory

authority, 10 U.S.C. § 68l1(a), and regu-

lations, 32 C.F.R. § 714.6(c)(3).

Woodward's commission has not been

revoked, his appointment as a reserve

officer has not been terminated and he

retains his status as an Ensign in the

United States Naval Reserve; his obliga-

tion to render service has not been ter-

minated.’

On the basis of the foregoing it is

7 See 32 C.F.R. § 714.3(4), (m).

57a

this 3lst day of May, 1978,

ORDERED that the plaintiff's motion

for summary judgment is denied; and it

FURTHER ORDERED that the defendant's

motion for summary judgment is granted

and the complaint of James Mark Woodward

is dismissed.

58a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-2062 September Tern,

1978

Civil Action No. 76-1199

James Mark Woodward,

Appellant

Vv.

Commander J.A. Moore, et al

BEFORE: Bazelon, Leventhal and

Robinson, Circuit Judges

On consideration of appellant's

motion for remand, the opposition

thereto and of appellant's reply, it

ORDERED by the Court that the afore-

said motion is granted and this case is

remanded to the District Court.

The Clerk is requested to transmit a

certified copy of this order to the

59a

District Court.

Per Curiam

Circuit Judge Robinson did not

participate in this order.

{Entered March 26, 1979.]

@0a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JAMES M. WOODWARD,

Plaintifé,

Vv. Civil Action

COMMANDER J. A. MOORE, No. 76-1199

et al.,

)

Defendants.

MEMORANDUM OPINION

Plaintiff, a former officer in the

Naval Reserve, has moved this Court to

reconsider its Memorandum Opinion and

Order of May 3l, 1978, sustaining his

release from active duty in light of two

intervening decisions of the United

States Court of Appeals for the District

of Columbia, Berg v. Claytor, 591 F.2d

849 (D.C. Cir. 1978), and Matlovich v.

Secretary of the Air Force, 591 F.2d 852

(D.C. Cir. 1978). After examining the

6la

rationale behind those two decisions,

the Court concludes that its May 3l,

1978, Order should be vacated, and that

this matter should be remanded to the

Secretary of the Navy to enable him to

state his reasons for releasing plain-

tiff from active duty.

The facts, as set forth in the ini-

tial decision, Woodward v. Moore, 451 F.

Supp. 346 (D.D.C. 1978), may be summa-

rized briefly. While serving on active

duty in the Pacific as naval flight

officer, Woodward was seen in an offi-

cer's club in the company of an enlisted

man who was being separated from the

service for homosexual activities. When

questioned about this incident, he

admitted to his commanding officer that

he had homosexual tendencies. On

September 27, 1974, his commander recom-

62a

mended to the Chief of the Bureau of

Navy Personnel that Woodward be admin-

istratively processed for discharge

under favorable conditions. That recom-

mendation was not accepted. Instead, on

October 6, plaintiff was notified that

he was to be released from active duty

and was ordered to return to the United

States. Later, he was officially

released from active service and

assigned to reserve duty in California.

Plaintiff subsequently asked to be

released from further active duty.*/

In June 1976, plaintiff filed this

complaint asking for money damages and

reinstatement on the grounds that the

i f Plaintiff states in his motion to

reconsider that he has since been twice

passed over for promotion and, as a

result, has been discharged from the

service.

63a

Navy's action violated its own regula-

tions and plaintiff's rights under the

First, Fifth, and Ninth Amendments.

This Court granted defendants’ motion

for summary judgment on all of these

Claims and held that, under 10 U.S.C.

§ 681, the decision to release plaintiff

from active duty was "within the sound

discretion of the Secretary of the

Navy." The Court added that "(t]he use

of Woodward's admission of homosexual

tendencies and his association with

homosexuals as a basis for the exercise

of that discretion did not result ina

violation of his right to freedom of

association. Berg v. Claytor, 436 F.

Supp. 76 (B.B.¢C. 3977) « . 2s” Oi Pi

Supp. at 348. Finally, the Court held

that the Navy had not ignored its own

regulations in not allowing plaintiff a

64a

hearing before a board of officers

before releasing him from active ser-

vice. Id. at 349.

The Court of Appeals has since

reversed the District Court's decision

in Berg, adopting the same rationale in

thai case as it had used in the com-

panion case of Matlovich v. Secretary of

the Air Force, supra. In Matlovich, the

Court of Appeals held that where Air

Force regulations allowed the exemption

under “the most unusual of circumstanc-

es" of some individuals from the general

policy of separating all homosexuals

from the service, the Air Force was

obligated to state the reasons for not

granting the exemption in Matlovich's

case. 591 F.2d at 857. In Berg, the

Court found that although the Navy had

no comparable “retention" exemption, the

65a

service had interpreted its otherwise

mandatory regulation providing for

separation of homosexuals as not requir-

ing separation in all cases. 591 F.2d

at 851.*/ In neither Opinion did the

Court of Appeals express its view on the

district court's determination that

there was no constitutional right to

engage in homovexual activity and that

it was not unconstitutional for the ser-

vices to maintain a general policy of

discharging homosexuals. Berg and

Matlovich thus stand for the position

that, while the service may use homosex-

*/ on January 20, 1978, the Secretary

of the Navy issued SECNAV Instruction

1900.9C setting forth Navy policy toward

service members involved in homosexual

conduct. The Instruction includes stan-

dards for retention. See Declaration of

W. Graham Claytor, filed September 14,

1979, Berg v. Claytor, C.A. No. 76-944

(5.5.@.)

66a

uality as a basis for discharge, prin-

ciples of administrative law require

that they set forth their reasons for

denying exemptions to a policy recog-

nized by regulation and prior practice.

The question presented by plain-

tiff's motion to reconsider is whether

this rationale applies where a reserve

officer who merely admits to “homosexual

tendencies" is released from active duty

rather than completely separated. In

their opposition, defendants argue that

the Berg and Matlovich decisions are

inopposite in that the regulations

governing separation generally require

the services to make findings justifying

the decision tc discharge. See Berg,

591 F.2d at 851 n. 4; Matlovich, 591-

F.2d at 858-59. These findings enable

the courts to exerc’se their well-

67a

established duty to review discharges

for compliance with the Constitution,

statutes and regulations. Id. at 859-

60. In contrast, defendants point out

there are no regulations requiring the

Navy to make dindings to support the

release of a reserve officer from active

duty. Moreover, defendants maintain

that 10 U.S.C. § 68l1(a) vests the

Secretary of the Navy with complete dis-

cretion in determining when a reserve

officer should be released from active

service. According to defendants, this

determination, unlike the decision to

discharge, cannot be subject to judicial

review if the Secretary is to be free to

adjust military manpower to the current

demands of national defense. See Curran

v. Laird, 420 F.2d 122, 131 (D.C. Cir.

1969) (decision on how to add or sub-

68a

tract from reserve fleet of merchant

vessels not subject to judicial review) ;

United States ex rel. Schonbrun v.

Commanding Officer, 403 F.2d 371 (24

Cir. 1968) (decision to deny hardship

exemption to reservist called to active

service not subject to judicial review) ;

Overseas Media Corp. v. McNamara, 385

FP.2€ 308, 314 (D.C. Cir. 1967).

Despite these considerations, the

Court is not convinced that this case is

sufficiently different from Berg and

Matlovich to permit an opposite result.

To be sure, plaintiffs Berg and

Matlovich were entitled to administra-

tive procedures before discharge, while

reservists such as Woodward released to

inactive duty normally have no such

entitlement. Aside from this point,

however, the cases are quite similar.

69a

The Navy would be hard pressed to

justify Woodward's release on manpower

grounds; the chronology of events

leading to Woodward's release leaves

little doubt that his release was the

result of his admission that he had

homosexual tendencies. And while

release from active service is a less

drastic measure than the complete sepa-

ration imposed on Berg and Matlovich, it

Clearly is an adverse action; Woodward's

service pay was stopped and his chances

of advancement were effectively ended.

More importantly, in all three cases,

the respective service denied the plain-

tiff a discretionary exemption from

adverse consequences without providing

the rationale for the denial.*/

*/ KW recent decision by the Ninth

Circuit sustained the constitutionality

(footnote continued)

70a

Defendants here have presented no satis-

factory reason for their silence.

Nor is the Court persuaded by defen-

dants' argument that the decision to

release plaintiff from active service

involved military operations and the

disposition of men and is therefore

immune from judicial review. The defen-

dants maintain that the discretion

granted to the service Secretaries in

section 68l(a) to release reserves from

active duty was granted to enable those

officials to control military manpower

based on the needs of the service. This

be (footnote continued)

of a regulation that court interpreted

to mandate separation for homosexual

acts. Beller v. Middendorf, No. 77-1354

(9th Cir., October 23, 1980). The Ninth

Circuit noted that this decision was

directly contrary to this Circuit's

decision

7la

Court would not presume to review the

Navy's determination that it needed

fewer flight officers on active duty, or

even which reserve officers should be

released in order to effect this deter-

mination. See Curran v. Laird, supra.

There is nothing in the record before

the Court, however, which indicates that

the Secretary was making such an adjust-

ment when he released plaintiff from

active duty.**/ The need for unfettered

discretion is far less compelling where,

as in this case, the undisputed facts

**/ the record does reveal that the

Navy released nearly 2600 Reserve offi-

cers from active duty between January l,

1975 and November 29, 1976, a period

commencing approximately ten weeks after

plaintiff's release. But this fact does

not in any way affect the strong infer-

ence based on the facts of this case

that plaintiff's release resulted solely

from his admission of homosexual tenden-

cies.

72a

indicate that the service exercised its

discretion to effect its policy of

removing homosexuals from the service.

If this is in fact the case, Woodward,

like Berg, is entitled to know why the

Navy's unwritten policy of allowing cer-

tain homosexuals to remain in the ser-

vice was not applied in his case. See

591 F.2d at 851. Accordingly, this

matter will be remanded to the Navy to

allow that service to provide a reasoned

basis for its decision to remove the

plaintiff from active duty. Plaintiff's

argument that he be entitled to judgment

at this stage of the litigation must be

rejected. Despite the considerable

interval between plaintiff's release

from active duty and this remand, the

service is entitled to an opportunity to

explain its decision in a fashion that

73a

may be reviewed by this Court.

Defendants are cautioned, however, that

“counsel's post hoc iationalization can-

not substitute for the agency's own

failure" to provide reasons. Matlovich

v. Secretary of the Air Force, 591 F.2d

at 860 n. 20.

An appropriate Order accompanies

this Memorandum Opinion.

Barrington D. Parker

United States District Judge

Entered:

March 13th, 1981

“ 74a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JAMES M. WOODWARD, )

)

Plaintifé, )

)

Vv. ) Civil Action

) No. 76-1199

COMMANDER J. A. MOORE,)

et al., )

ta le )

Defendants )

ORDER

In accordance with the accompanying

Memorandum, it is this 13th day of

March, 1981,

ORDERED that plaintiff's motion for

reconsideration is granted, and the

Memorandum Opinion and Order of May 3l,

1978, are vacated; and it is

FURTHER ORDERED that this case is

remanded to the Secretary of the Navy

who shall by June 30, 1981, provide the

Court with a statement of reasons for

plaintiff's release from active duty,

75a

including an explanation of the appli-

cation of the Navy's retention policy

regarding homosexuals to this plaintiff.

Barrington D. Parker

United States District Judge

76a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JAMES M. WOODWARD :

Plaintiff, :

Civil Action

No. 76-1199

COMMANDER J. A. MOORE,

et al.,

Defendants. :

MEMORANDUM ORDER AND JUDGMENT

Plaintiff, formerly an officer in

the Naval Reserve, brought this action

to challenge his release from active

duty, alleging that it was improperly

based on his admission that he had homo-

sexual tendencies.- Initially, the Court

granted the defendants’ motion for sun-

mary judgment, finding that the control-

ling statute, 10 U.S.C. § 681(a), placed

the decision to release a reservist from

active duty within the sound discretion

77a

of the Secretary of the Navy. Woodward

v. Moore, 451 F.Supp. 348 (D.D.C. 1978).

Plaintiff then appealed this decision.

The case was remanded before argument,

however, at plaintiff's suggestion, for

this Court to reconsider its decision in

light of two intervening decisions of

the Court of Appeals: Matlovich v.

Secretary of the Air Force, 591 F.2d 852

(D.C.Cir. 1978), and Berg v. Claytor,

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

Upon reconsideration, the Court

vacated its initial decision and

remanded this matter to the Navy with

instructions that the service:

provide the Court with a state-

ment cf reasons for plaintiff's

release from active duty,

including an explanation of the

application of the Navy's reten-

tion policy regarding homo-

78a

sexuals to this plaintiff. */

The Navy has complied with this require-

ment by submitting five sworn declara-

tions by officers who participated in

the processing of plaintiff for release

from active duty.*/ Relying on these

declarations, the defendants have

renewed their motion for summary judg-

ment. After reviewing the renewed

motion, the supporting declarations, and

the plaintiff's opposition, the Court

concludes that defendants are now

entitled to summary judgment.

In its Memorandum Opinion of March

13, 1981 granting the plaintiff's motion

7 Memorandum Opinion and Order, filed

March 13, 1981.

*/ Declaration of George F. Cronin,

John S. Disher, Albert J. Herberger,

Victoria S. Matthews, and Ben T.

Sanders, filed July 9, 1981.

® 79a

for reconsideration, this Court relied

on the Berg and Matlovich cases for the

proposition that

while the service may use hon-

sexuals as a basis for discharge,

principles of administrative law

require that they set forth

their reasons for denying exemp-

tions to a policy [of retaining

some homosexuals] recognized by

regulation and prior practice.

Memorandum Opinion at 3. The Court

further noted that the Secretary's

discretion to release reservists under

10 U.S.C. § 681 was based on the need to

adjust manpower levels in response to

service requirements, and that the Navy

had offered nothing to show that this

need was in fact involved in the deci-

sion to release the plaintiff. Id. at

The declarations filed by the navy

address the factual issues identified by

the Court in its March 13 Opinion. They

80a

establish that the recommendation made

by plaintiff's superior, that plaintiff

be separated from the service, was con-

sidered by a section of the Bureau of

Naval Personnel designated “Pers 82."

This section determined that plaintiff

should not be separated, but instead

that he should be reassigned or released

from active duty. Pers 82 then referred

plaintiff's case to “Pers 4," another

section within the Bureau which dealt

with the reassignment or release of

reserve officers.

While the Bureau of Naval Personnel

was considering plaintiff's case, the

Navy was engaged in a general reduction

in manpower in connection with the

reduction of American forces in South-

east Asia. To accomplish this, the Navy

was reviewing the personnel files of

8la

reserve officers and ranking them

according to their suitability for

retention. Plaintiff's file was

reviewed and he was ranked well below

cutoff point for retaining a reservist.

The Navy provides four reasons for this

ranking: 1) plaintiff's acknowledged

homosexual tendencies; 2) his fitness

reports, while above average were “far

from outstanding"; 3) he compared

unfavorably with other officers avail-

able for retention; and 4) plaintiff's

release “would appropriately implement"

the requirement that the number of

reserve officers be reduced.*/

The Court finds these reasons suffi-

cient to support the Navy's action. The

Navy has established that plaintiff's

bf Declaration of Victoria S. Matthews,

q 4.

82a

release was part of a general reduction

in personnel levels. Under these cir-

cumstances, the decision to release the

plaintiff was committed to the sound

discretion of the Secretary. See

Memorandum Opinion at 5, Moreover, the

declarations submitted by defendants

indicate that plaintiff's qualifications

and record were not of such unusual

strength to merit retaining plaintiff in

spite of his acknowledged homosexual

tendencies. The Navy's decision to

release plaintiff from active duty must

therefore be upheld. Accordingly it is

this 20th day of August, 1981

ORDERED that defendants' motion for

summary judgment is granted, and the

complaint is dismissed with prejudice.

Barrington D. Parker

United States District Judge

83a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JAMES M. WOODWARD, :

Plaintiff,

Vv. Civil Action

COMMANDER J.A. MOORE, : No. 76-1199

Defendants. :

MEMORANDUM ORDER

Plaintiff has filed a motion for recon-

Sideration of this Court's Memorandum

Order and Judgment of August 20, 1981.

In his motion, plaintiff raises two

points: 1) that the August 20 Memorandum

failed to address the constitutional

question presented by this case; and 2)

that the Memorandum misstated the scope

of review to be applied in the noncon-

Stitutional issue. After considering

plaintiff's motion in light of the

84a

entire record of this case, the Court

concludes that the motion to reconsider

should be denied.

For the proposition that it is

unconstitutional to discharge a service-

member for homosexual tendencies, the

Plaintiff relies upon a district court

decision, benShalom v. Department of the

Army, 489 F. Supp. 964 (E.D.Wis. 1980).

Notwithstanding strong contrary

authority from the Ninth Circuit, Beller

v. Middendorf, 632 F.2d 812 (9th Cir.

1980) (Navy may constitutionally dis-

charge those servicemen who engage in

homosexual activity), plaintiff presses

this Court to hold that the considera-

tion of a reservist's admission of homo-

sexual tendencies in a decision to

release him from active service is

constitutionally impermissible.

85a

Plaintiff's contention that the

Court has not addressed the constitu-

tional issue in this case overlooks the

Court's holding in its initial decision

that "(t]he use of Woodward's admission

of homosexual tendencies and his associ-

ation with homosexuals as a basis for

the exercise of that discretion [to

release plaintiff from active duty] did

not result in invidious discrimination

in violation of due process, not ina

violation of his right to freedon of

association." For this proposition, the

Court relied on the district court in

Berg v. Claytor, 436 F. Supp. 76 (D.D.C.

1977). The constitutional ruling in the

Berg decision was not overturned by the

Court of Appeals. Berg v. Claytor, 591

F.2d 849, 850 (D.C.Cir. 1978). Rather

the Court of Appeals reversed and

86a

remanded the case on a point of admi-

nistrative law. Id. at 851. The

constitutional holding of the district

court in Berg therefore remains sound

persuasive authority in this Court.

Moreover, the plaintiff overlooks

the terms of the Court of Appeals order

remanding this case. This case was

remanded for reconsideration in light of

the appellate decisions in Berg and

Matlovich v. Secretary of the Air Force,

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

above, those decisions were based on

principles of administrative, not con-

stitutional law. This Court reexamined

its decision in light of those cases,

and determined that the case should be

remanded to the service for a statement

of reasons explaining why the Navy's

retention policy on homosexuals had not

87a

been applied to Woodward. Under the

Court of Appeals decisions in Berg and

Matlovich there was no reason to recon-

sider this Court's initial ruling on the

constitutional point. The Court will

not do so now.

Plaintiff's second point appears to

be that this Court failed to apply the

proper standard of review in examining

the decision to release plaintiff from

active duty. The Court rejects this

contention as well. On the basis of the

declarations submitted by the defen-

dants, the Court found that plaintiff

had-been released from active service as

part of a general reduction in manpower

following the Vietnam war. Such deci-

sions are committed to the discretion of

the Secretary. The Secretary also has

the discretion to set minimum perform-

88a

ance standards by which to determine who

shall be retained. The declarations

establish that the Navy conducted a

general review of reserve officers and

graded them according to their records.

Plaintiff's admitted homosexual tenden-

cies were considered along with other

factors in his sesrvice record, and the

Navy determined that his record was not

strong enough to merit retention.

Plaintiff appears to argue that by

relying in part on plaintiff's admission

of homosexual tendencies, the Navy was

relying on an impermissible factor.

This argument, however, assumes that

plaintiff has prevailed, at least in

part, on his constitutional claim.

However, nothing in the Berg and

Matlovich decisions, which control this

case, forbids the Navy from considering

89a

plaintiff's admission as a factor.

Indeed, those decisions imply that the

Navy could consider it, as long

as the service provides its reasons for

not applying the exception provided

under its own regulations. This the

Navy has done and plaintiff is entitled

to nothing more. Accordingly, it is

this 3rd day of September, 1981

ORDERED that plaintiff's motion for

reconsideration is denied.

“Barrington D. Parker

United States District Judge

90a

NOT TO BE PUBLISHED -

SEE LOCAL RULE 8 (f)

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 81-2017 September Term, 1981

James Mark Woodward Civl Action

Vv. No. 76-01199

Commander J.A. Moore, United

States Navy, et al.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

Before: WILKEY and WALD, Circuit

Judges; and McGOWAN, Senior Circuit

Judge

JUDGMENT

This cause came to be heard on the

record on appeal from the United States

District Court for the District of

Columbia and was briefed and argued by

counsel. The issues presented have been

9la

accorded full consideration by the

court; they occasion no need for an opi-

nion. See Local Rule 13(c).

ORDERED AND ADJUDGED, by this Court,

that this case be remanded to the

District Court for further proceedings,

as called for in the accompanying

memorandum.

Per Curiam

For the Court

George A. Fisher

Clerk

Bills of costs must be filed

within 14 days after entry of

judgment. The Court looks

with disfavor upon motions to

file bills of costs out of

time.

92a

Woodward v. Moore No. 81-2017

MEMO RANDUM

The Tucker Act, 28 U.S.C. § 1346

(1976), provides in relevant part:

(a) The district courts

shall have original juris-

diction, concurrent with the

Court of Claims, of:

* * * *

(2) Any other civil action

or claim against the United

States, not exceeding $10,000

in amount, founded either

upon the Constitution, or any

Act of Congress, or any regu-

lation of an executive depart-

ment, Or upon any express or

implied contract with the

United States, or for liquida-

ted or unliquidated damages in

cases not sounding in tort.

The Court of Claims thus has exclusive

jurisdiction over all claims exceeding

$10,000. Id. § 1491.

The defendant contends that the

district court lacked jurisdiction

because the amount claimed by plain-

93a

tiffs exceeds $10,000. The district

court shall require the plaintiff to

amend his complaint to plead the precise

amount of back pay being sought, and

shall then determine whether it has

jurisdiction. If the plaintiff's claims

exceed $10,000, the court shall transfer

the case to the Court of Claims. If the

plaintiff's claims are less than

$10,000, the court shall reinstate its

judgment or conduct whatever further

proceedings it deems appropriate.

In determining the jurisdiction, the

district court should be guided by the

recent opinions of the court in Goble v.

Marsh, Nos. 81-2151 and 81-2156 (9 July

1982), and Stone v. United States, No.

81-1943 (9 July 1982). These cases

establish three things. First,

"(p]laintiffs whose damages exceed

94a

$10,000 may waive all claims greater

than $10,000 in order to establish the

jurisdiction of the District Court."

Goble, slip op. at 2. Second, plain-

tiffs must waive not only amounts in

excess of $10,000 accrued as of the time

of filing, but also any additional

accruals of back pay from the period of

the filing of the complaint to entry of

the judgment. Goble, slip op. at 8.

Finally, a waiver of any net recovery in

excess of $10,000 is sufficient to

establish the district court's jurisdic-

tion. Thus, a “plaintiff may remain in

District Court under the Tucker Act if

he limits his prayer for relief to a net

monetary recover of $10,000 or less

after deduction of civilian earnings and

other amounts arising directly from the

discharge." Stone, slip op. at 8-9.

95a

The district court should give

plaintiff an opportunity to amend his

complaint to effect an adequate waiver.

See Goble, slip op. at 10-ll.

96a

IN THE UNITED STATES CLAIMS COURT

No. 692-83C

(FILED MARCH 31, 1986)

THIS OPINION WILL

JAMES MARK WOODWARD) NOT BE PUBLISHED IN

Vv. THE U.S. CLAIMS

THE UNITED STATES COURT REPORTED BE-

CAUSE IT DOES NOT

ADD SIGNIFICANTLY

TO THE BODY OF LAW

AND IS NOT OF WIDE-

SPREAD INTEREST.

Daniel M. Schember, Washington,

D.C., attorney for the plaintiff.

John S. Groat, Washington, D.C.,

with whom was Assistant Attorney General

Richard K. Willard, for the defendant,

Donald J. Guter, Commander, JAGC, USN,

97a

Office of the Judge Advocate General,

Department of the Navy, of counsel.

OPINION

MARGOLIS, Judge.

The plaintiff, James Mark Woodward,

brought this action seeking back pay and

reinstatement after he was released from

active duty in the United States Naval

Reserve. He alleges that the Navy

improperly and unconstitutionally

removed him from active duty because of

admitted homosexual. tendencies.

This case was transferred here from

the U.S. District Court for the District

of Columbia when, after extended legal

proceedings including two appeals, it

was discovered that the District Court

lacked jurisdiction because the amount

in controversy in this military pay case

98a

exceeded $10,000. See Woodward v.

Moore, 451 F. Supp. 346 (D.D.C. 1978);

Woodward v. Moore, No. 78-2062 (D.C.

Cir. March 26, 1978); Woodward v. Moore,

No. 76-1199 (D.D.C. August 20, 1981);

Woodward v. Moore, No. 81-2017 (D.C.

Cir. July 28, 1982).

The defendant United States now

asserts that this court lacks jurisdic-

tion to review the plaintiff's claim

because a decision to release a reser-

vist from active duty is left solely to.

the discretion of the Secretary of the

Navy under 10 U.S.C. § 68l(a) (1982).

In the alternative, the defendant

asserts that plaintiff was properly

released based on his record, because of

a general reduction in force in effect

at the time, or because of his homo-

sexuality.

99a

The relevant facts are undisputed.

Both parties, having completed disco-

very, have renewed their motions for

summary judgment. The court concludes

that it has jurisdiction to review

plaintiff's claim and that the plain-

tiff's release was proper. The court

grants the defendant's renewed motion

for summary judgment and denies the

plaintiff's motion.

FACTS

James M. Woodward was an Ensign on

active duty with the U.S. Naval Reserve.

When he enlisted for duty in June 1972,

he completed a fitness questionnaire

that asked whether or not he was attrac-

ted sexually to, or desired sexual ac-

tivity with, members of his own sex, and

whether or not he had ever engaged in

homosexual conduct. He responded "yes"

100a

to the first question and "no" to the

second.

Navy regulation SECNAVINST 1900.9A

(July 31, 1972), in effect at the time,

mandated separation of homosexuals from

the service. Homosexuality as defined

by Navy regulation included "the

expressed desire, tendency, or procli-

vity toward [homosexual] acts whether or

not such acts are committed."

SECNAVLIST 1900.9A 43. Despite the

Navy's policy toward homosexuality and

the affirmative answer on the question-

naire, Woodward was accepted for train-

ing in June 1972. Ensign Woodward

successfully completed Navy flight

school, his reports at this time indi-

cating chat he was a mediocre flyer, but

that he had potential and was typically

effective at his assignments. After

10la

training, he evéntually was assigned to

Carrier Airborne Early Warning Squadron

116, a fleet operational squadron,

destined for the Philippines.

While in the Philippines in 1974,

Woodward visited the Subic Bay Officer's

Club in the company of an enlisted man

who was awaiting discharge from the ser-

vice because of homosexuality. When

Woodward's commanding officer, Commander

J. A. Moore, questioned him about the

incident, Woodward admitted his homo-

sexual tendencies and stated that since

he knew no "gay" officers he had sought

the company of "gay" enlisted me.

Woodward was asked to resign. He

refused, and Commander Moore recom-

mended his discharge.

The navy legal department was con-

sulted about the recommended discharge,

102a

but advised against it. The dischar Je

was not processed, and pursuant to

routine wavy practice, Woodward was

instead made available for reassignment

or release from active duty. The Navy

regularly makes reservists available for

reassignment or release when their com-

manding officer has recommended their

discharge, but the discharge is not

processed.

The file of a person made available

for reassignment or release is reviewed

by personnel officers who grade that

person's performance records and recom-

mend whether the Navy should reassign or

release the individual. A grade of A or

B is generally necessary to avoid

release.

The review officers handling

Woodward's case recommended him for

103a

release, and he was released from active

duty on October 22, 1974. Woodward was

then reassigned to the Naval Air Reserve

Staff H-l in San Diego, California,

where he served without pay in an inac-

tive status. Afte releasing him from

active duty, the Navy promoted him to

Lieutenant, junior grade. On February

28, 1975, at Woodwrd's request, the Navy

released him from further active reserve

training. He twice failed to win promo-

tion to the rank of Lieutenant, and the

Navy discharged him after he completed

his six-year term of service.

Woodward alleges that his release

from active duty was procedurally

improper in that he was entitled to an

explanation of why he was denied the

benefit of the Navy's policy of retain-

ing some homosexuals while discharging

104a

others. The defendant concedes that

while the regulations apparently allowed

no exceptions, the Navy did have a

policy of retaining some officers des-

pite their homosexuality. Woodward also

alleges that his release violated the

First and Fifth Amendments of the U.S.

Constitution in that it resulted in his

removal merely because of his thoughts,

expressions and associations, and

because it deprived him of employment

without due process of law.

The defendant asserts that the per-

sonnel officers who reviewed Woodward's

file based their decision on his record

alone and that his performance resulted

in his release from active duty. The

defendant also asserts that this court

lacks jurisdiction to review the action

taken.

105a

DISCUSSION

A. Jurisdiction

The court has considered the defen-

dant's argument that it lacks jurisdic-

tion to hear this case, but finds that

argument unpersuasive. The nature of

this claim fits squarely within the

language of 28 U.S.c. § 1491.1/ ‘The

fact that a reservist is involved, as

Opposed to a member of the regular armed

forces, may affect the result but does

not interfere with this court's ability

to hear the case. See Egan v. United

l/ 28 U.S.C. § 1491(a)(1) states: “The

United States Claims Court shall have

jurisdiction to render judgment upon any

claim against the United States founded

either upon the Constitution, or any Act

of Congress or any regulation of an

executive department, or upon any

express or implied contract with the

United States, or for liquidated or

unliquidated damages in cases not

sounding in tort."

106a

States, 141 Ct.Cl. 1, 158 F.Supp. 377

(1958); Cf. Puglisi v. United States,

215 Ct.Cl. 86, 564 F.2d 402 (1977),

cert. denied, 534 U.S. 968 (1978) (dif-

ferent treatment of reserve officers and

regular officers was reasonable).

Defendant's argument is miore proper-

ly couched in terms of the deference

that should be accorded military deci-

sions relating to personnel and, more

particularly, this court's reluctance to

substitute its judgment for that of the

officers skilled in military evalua-

tions. Guy v. United States, 221 Ct.

Cl. 427, 433, 608 F.2d 867, 871 (1979);

Cf. Rostker v. Goldberg, 453 U.S. 57

(1981) (deference due in military mat-

ters is greater than in most other

areas). 10 U.S.C. § 681(a) vests the

Secretary of the Navy with wide discre-

107a

tion in determining when to release a

reservist from active duty, but where a

Secretary puts constraints upon that

discretion by promulgating regulations,

the court can review personnel actions

for violations of these regulations. 2/

Brooks v. United Staces, 209 Ct. Cl.

704, 705 (1976); Cf. Service v. Dulles,

354 U.S. 363 (1957). This court can

also review employment decisions

affecting military personnel for alleged

violations of constitutional rights that

give rise to monetary claims. See

Koster v. United States, 231 Ct. Ci.

301, 308, 685 F.2d 407, 412 (1982).

B. Merits

2/ 10 U.S.C. § 681(a) provides:

"Except as otherwise provided in this

title, the Secretary concerned may at

any time release a Reserve under his

jurisdiction from active duty."

108a

The first action affecting

Woodward's employment was Commander

Moore's decision to recommend him for

discharge because he professed homosexu-

al tendencies. Moore's authority to

recomend the discharge cannot be

seriously challenged. Such a decision

is within his discretion. Moore's

recommendation of discharge was not

adopted, and Ensign Woodward, in accor-

dance with regular Navy practice, was

made available for retention or release.

Where an adverse personnel action

has stemmed from alleged constitu-

tionally protected conduct such as

acknowledging homosexual tendencies, the

defendant can avoid liability if it

shows “by a preponderance of the evi-

dence that it woulda have reached the

Same decision as to [plaintiff's employ-

109a

ment] even in the absence of the pro-

tected conduct." Mt. Healthy City Board

of Education v. Doyle, 429 U.S. 274, 287

(1977). The court finds that the defen-

dant has met its burden of proof.

The defendant has introduced credi-

ble evidence by personnel officers who

regularly review files that even with:

out consideration of Woodward's homosex-

ual tendencies, he would have been

recommended for release at the time his

record was reviewed. In other words, a

Navy Ensign with a record similar to

plaintiff's would have been released if

his file had reached the reviewing of-

fice at the same time Woodward's file

did. For example Captain Robert

Goodloe testified that he would rank

Woodward's record prior to acknowledge-

ment of homosexual tendencies “below

110a

average. . .bottom third, botton quar-

ter, somewhere in that area." (Pltf.'s

Br., App. 116). He also testified that

given this record, he “would not have

retained him" because he “consider[ed]

his marks to be below the average."

EPitcé.'s BSe., App. 117).

Captain Robert Howard, another

review officer, testified "(t]his guy

didn't do very good [sic]. He's rated

in the lower one-third." (Howard Dep.

at ll). In her declaration, Lt.

Commander Victoria S. Matthews, who re-

viewed Woodward's file and recommended

his release from active duty, gave the

following reasons:

(a) Ensign Woodward acknowledged

that he had a homosexual orienta-

tion and homosexual tendencies;

(b>) His fitness reports, which

had been prepared by his command-

ing officer before his commanding

officer was aware of Ensign

Woodward's homosexuality, indi-

llla

cated that his peformance,

although usually rated above

average, was considered far from

outstanding;

the other reserve officers avail-

able for reassignment or release.

Officers with fitness reports

comparable to Ensign Woodward's

usually received grades of C or D

and his homosexuality resulted in

further downgrading. I do not

recall exactly where Ensign

Woodward was ultimately ranked,

but I do recall clearly that he

was ranked far below the level at

which reserve officers were being

retained on active duty; and

(d) The release of Ensign

Woodward from active duty would

appropriately implement Pers

432's requirement to reduce the

number of reserve officers on

active duty.

(Pltf.'s Br., App. 46-47).

Lt. Commander Matthews also stated

in her declaration that all reserve

officers who received a grade of C or D

were released from active duty.

Plaintiff's statistical proof that

only five Naval Reserve Flight Ensigns

112a

were released in fiscal 1975 does not

suggest that an Ensign with a record

Similar to the plaintiff's would not

have been released, and therefore, does

not overcome the defendant's evidence.

Plaintiff emphasizes that the review

officers considered his homosexual ten-

dencies during review and that this con-

sideration improperly resulted in his

release. Defendant acknowledges that

the grades Woodward actually received

during the review process included con-

Sideration of his homosexual tendencies

and that this consideration may have

resulted in even lower grades than he

would have otherwise received. Never-

theless, sufficient evidence exists to

conclude that Woodward's release would

have occurred even without this down-

grading. The court finds the testimony

l1l3a

of the review officers persuasive.

Since Woodward's release would have

occurred at the time of review even

without consideration of his homosexual

tendencies, the constitutional issues

raised by plaintiff need not be

addressed by the court.

Also not reached by the court is the

issue repeated from the earlier District

Court proceedings--that plaintiff was at

least entitled to an explanation of why

he was denied the benefit of the Navy's

discretionary policy of retaining some

hoosexuals. See Woodward v. Moore,

Supra; see also Berg v. Claytor, 591

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

Accordingly, the court grants the

defendant's renewed motion for summary

judgment and denies the plaintiff's

motion. The clerk will dismiss the

complaint.

March 3l,

ll4a

No costs.

LAWRENCE S. MARGOLIS

Judge, U.S. Claims Court

1986

115a

IN THE UNITED STATES CLAIMS COURT

No. 692-83 C

JAMES MARK WOODWARD

JUDGMENT

Vv.

THE UNITED STATES

Pursuant to the opinion of March 3l,

1986, granting defendant's renewed

motion for summary judgment and denying

plaintiff's motion,

IT IS ORDERED AND ADJUDGED this

date, pursuant to Rule 58, that the

complaint is dismissed. No costs.

Frank T. Peartree

Clerk of Court

March 31, 1986 By:

Deputy Clerk

NOTE: As to appeal, 60 days from this

date, see FRAP 4(a).

1l6a

Note: This Order has not been

prepared for publication ina

printed volume because it does

not add signficantly to the

body of law and it is not of

widespread legal interest. It

is a public record. It is not

citable as precedent.

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

86-1283

JAMES M. WOODWARD,

Appellant,

Vv.

THE UNITED STATES,

Appellee.

Before FRIEDMAN, SMITH and ARCHER,

Circuit Judges.

A petition for rehearing having been

117a

filed in this case,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for

rehearing be, and same hereby is,

denied.

The suggestion for rehearing in banc

is under consideration.

The mandate will issue on May 9,

1989.

FOR THE COURT

May 2, 1989 Francis X. Gindhart

Clerk

cc: Daniel M. Schember

John S. Groat

118a

United States Court of Appeals

for the Federal Circuit

| 86-1283

JAMES M. WOODWARD,

Appellant,

5 7

THE UNITED STATES,

Appellee.

ORDER

A suggestion for rehearing in banc

having been filed in this case,

UPON CONSIDERATION THEREOF, it is

ORDERED that the suggestion for

rehearing in banc be, and the same

hereby is, declined.

FOR THE COURT,

Francis X. Gindhart

Clerk

Dated: May 12, 1989

cc: DANIEL M. SCHEMBER

119a

JOHN S. GROAT

WOODWARD V US, 86-1283

(CLM-, 692-83 C)

TRE RESESRESLELALLSLESE SESE SERRE RAR RAR AAAS SS

Note: This order has not been

reporter.

+ +t 4+ 4 &

- prepared for publication ina

TeRERESRESRERRRA RAR SERA RR AR SRS RA AAS AS SS SS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.