34 F.3d 1469 (9th Cir. 1994), 93-55242, Meinhold v. United States Dept. of Defense

Docket Nº:93-55242, 93-56354.
Citation:34 F.3d 1469
Party Name:Volker Keith MEINHOLD, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF DEFENSE; United States Department of the Navy, Defendants-Appellants. Volker Keith MEINHOLD, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF DEFENSE; United States Department of the Navy, Defendants-Appellants.
Case Date:August 31, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1469

34 F.3d 1469 (9th Cir. 1994)

Volker Keith MEINHOLD, Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF DEFENSE; United States

Department of the Navy, Defendants-Appellants.

Volker Keith MEINHOLD, Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT OF DEFENSE; United States

Department of the Navy, Defendants-Appellants.

Nos. 93-55242, 93-56354.

United States Court of Appeals, Ninth Circuit

August 31, 1994

Argued and Submitted Dec. 16, 1993.

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[Copyrighted Material Omitted]

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Mark I. Levy (argued) and E. Roy Hawkens (on the briefs), U.S. Dept. of Justice, Washington, DC, for defendants-appellants.

John I. McGuire, Kaye, Scholer, Fierman, Hays & Handler, Los Angeles, CA, for plaintiff-appellee.

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Victor J. Wolski, Pacific Legal Foundation, Sacramento, CA, amicus curiae for Pacific Legal Foundation, et al.

Ruth E. Harlow, American Civil Liberties Union, New York City, amicus curiae for American Civil Liberties Union.

Appeals from the United States District Court for the Central District of California.

Before: SKOPIL, THOMPSON, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

These consolidated appeals present a number of questions arising out of the Navy's discharge of Petty Officer Volker Keith Meinhold on account of his statement on ABC World News Tonight, "Yes, I am in fact gay."

Finding that the Navy's policy was to ban gays and lesbians based on status, not on conduct, and that such a policy violates the Equal Protection Clause of the Fifth Amendment, the district court granted Meinhold's motion for summary judgment and enjoined the Department of Defense (DOD) from discharging or denying enlistment based on sexual orientation. 1 It also restrained DOD from maintaining files having to do with the sexual orientation of any member of the armed forces in the absence of conduct affecting the military mission. The court did not rule on Meinhold's estoppel claim, and it declined to require exhaustion of administrative remedies despite Meinhold's failure to appeal to the Board for Correction of Naval Records (BCNR) as it found that the government had conceded that a new hearing would result in the same decision.

Meinhold's nonconstitutional claim should have been resolved before his equal protection claim was reached. Nevertheless, because the record on summary judgment was fully developed and we can decide whether it suffices to estop the Navy as a matter of law, we have reviewed it independently and conclude that the Navy engaged in no affirmative misconduct and so cannot be estopped to order Meinhold separated on the ground of his homosexuality. Since the Navy's position leaves no room for supposing that its regulations could be differently interpreted by the BCNR, we agree that further review would be futile.

On the merits, we defer to the Navy's judgment that the presence of persons who engage in homosexual conduct, or who demonstrate a propensity to engage in homosexual conduct by their statements, impairs the accomplishment of the military mission. However, DOD regulations 2 do not have to be applied as the Navy did in this case, to require separation based only on Meinhold's statement that he is gay. Rather, the regulations can be read to reach a statement of homosexuality only when the statement itself manifests a concrete, expressed desire or intent to engage in homosexual acts. Construing the regulations in this way is consistent with the military judgment that homosexual conduct is incompatible with military service, and with our obligation to construe regulations so as to avoid constitutionally problematic results. Accordingly, we hold that the regulations then in effect, reasonably and constitutionally construed, could not be applied so as to discharge Meinhold solely because of a statement of orientation devoid of any concrete, expressed desire or intent to act on his homosexual propensity contrary to military policy. Therefore, to the extent the district court's judgment enjoins the Navy from discharging Meinhold based solely on his statement of status, we affirm; beyond that, we do not agree that injunctive relief may properly extend past the Navy's treatment of Meinhold to the Department of Defense's treatment of all members of the armed services. To that extent, the judgment is overbroad and we reverse.

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I

Meinhold had served for twelve years as an enlisted member of the United States Navy. On May 19, 1992, he acknowledged on television that he was gay. The next day the United States Navy initiated discharge proceedings pursuant to Naval Military Personnel Manual 3630400(1). 3

At the hearing, both the Navy Recorder and the Legal Advisor to the administrative discharge board took the position that the board must recommend discharge if it found that Meinhold is homosexual, and that a member of the service is homosexual if he says he is whether or not he has engaged in homosexual conduct. The board so found, due to Meinhold's televised statement. As a result, Meinhold was given an honorable discharge on August 12, 1992.

Meinhold brought this action for a declaration that the Department of Defense's then-existing policy regarding homosexuals was unconstitutional, and sought reinstatement in the Navy on the ground that his discharge was procedurally defective, the Navy was estopped from separating him on the basis of status, and the relevant regulations were constitutionally infirm. In ruling on cross-motions for summary judgment, the district court held that further proceedings to exhaust administrative remedies would be futile as it was undisputed that a new hearing would result in the same decision. The court then held that gays and lesbians should not be banned from serving in the military in the absence of conduct which interferes with the military mission. It therefore rescinded Meinhold's discharge and permanently enjoined the Department of Defense "from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States." Meinhold, 808 F.Supp. at 1458.

DOD timely appealed and sought an emergency stay of the district court's injunction to the extent it conferred relief on persons other than Meinhold. After this relief was denied, President Clinton announced a new policy regarding homosexuals in the military, popularly identified as the "don't ask/don't tell" policy. DOD again applied for an emergency stay, this time on the ground that the injunction barred it from implementing the new policy. Meanwhile, Meinhold also asked the district court to hold DOD in contempt based on the Department's announced intention to transfer two servicemembers who had admitted their homosexuality to the standby reserves. Although the court made no finding of contempt, it did amend the previous injunction to restrain DOD from creating or maintaining files based on sexual orientation and from taking any actions against gay or lesbian servicemembers based on their sexual orientation. DOD appealed this order and sought an emergency reconsideration of this court's denial of a stay pending appeal. We declined to reconsider our earlier rulings, but on October 29, 1993, the Supreme Court, --- U.S. ----, 114 S.Ct. 374, 126 L.Ed.2d 324, granted a stay of the injunction, as amended, to the extent it conferred relief on persons other than Meinhold.

II

We first consider whether the district court's decision and order should be vacated for either of the preliminary reasons urged by the Navy: that the court erred in adjudicating Meinhold's constitutional claim before requiring him to exhaust intramilitary remedies, and that it erred in failing to resolve the nonconstitutional claims that Meinhold contends require his reinstatement before holding the policy unconstitutional.

A

DOD argues that the exhaustion doctrine applies with particular force in cases where a discharged servicemember seeks reinstatement because separation of powers concerns and military discipline considerations are implicated. It also contends that exhaustion promotes judicial economy by producing a record for judicial review, affording the relief sought, and possibly mooting issues. We agree that strict application of

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exhaustion requirements in military discharge cases helps maintain the balance between military authority and federal court intervention, but exhaustion is not required where an administrative appeal would be futile. See Watkins v. United States Army, 875 F.2d 699, 705 (9th Cir.1989) (en banc), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990).

DOD suggests that instead of finding that it had conceded futility, the district court should have found that exhaustion was required based on Meinhold's "concession" that constitutional arguments need not be reached because his nonconstitutional arguments mandate reinstatement. It also suggests that further review could have made a difference as the parties differed over the regulatory definition of "homosexual": Meinhold took the view the regulations mandate discharge based solely on status, whereas in the Navy's view the regulations apply to those who either have engaged in past homosexual acts or who by their statements indicate a propensity to engage in future homosexual acts. Meinhold, on the other hand, contends that exhaustion has to be futile since there are no exceptions to DOD's policy that if a servicemember states that he is homosexual, discharge is mandatory unless he can prove that he is not a homosexual.

We have difficulty with the Navy's argument because it doesn't square with the official position taken in Meinhold's discharge proceeding. There...

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