41 F.3d 677 (C.D. Cir. 1994), 91-5409, Steffan v. Perry

Docket Nº:91-5409.
Citation:41 F.3d 677
Party Name:U.S.App.D.C. 281, Joseph C. STEFFAN, Appellant, v. William J. PERRY, Secretary of Defense, et al., Appellees.
Case Date:November 22, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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41 F.3d 677 (C.D. Cir. 1994)

U.S.App.D.C. 281,

Joseph C. STEFFAN, Appellant,

v.

William J. PERRY, Secretary of Defense, et al., Appellees.

No. 91-5409.

United States Court of Appeals, District of Columbia Circuit

November 22, 1994

Argued En Banc May 11, 1994.

As Amended Nov. 22, 1994.

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Before: MIKVA, [*] Chief Judge, WALD, EDWARDS, [**] SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring statement filed by Circuit Judge BUCKLEY, with whom RANDOLPH, Circuit Judge, joins.

Concurring statement filed by Circuit Judge RANDOLPH.

Statement concurring in part, dissenting in part, and concurring in the judgment filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge WALD, with whom EDWARDS, Chief Judge, and ROGERS, Circuit Judge, join.

SILBERMAN, Circuit Judge:

Joseph Steffan, a former Navy midshipman who admitted to being a homosexual, appeals from the judgment of the district court sustaining the constitutionality of the regulations pursuant to which he was discharged from the Naval Academy. We affirm.

I.

Midshipmen enrolled in the Naval Academy are subject to at least two sets of regulations relevant to homosexuality: the Naval Academy's own regulations and the Directives of the Department of Defense applicable to the armed forces generally.

Academy regulations provide a number of "separation criteria" applicable to the "small minority of midshipmen" who "either [do] not perform to standards" or who "possess certain traits which are undesirable in commissioned officers." United States Naval Academy Regulation, COMDTMIDN Instruction 1610.6F Ch-2.15.1 (July 16, 1987). 1 A number of such deficiencies are considered to be "sufficient in and of themselves to warrant separation from the Naval Academy." Id. at Ch-2.15.3. The Academy regulations provide a "listing" of those shortcomings, explaining that the "listing is not all-inclusive, but rather serves as examples which severely limit a midshipman's aptitude and potential for commissioned service." Id. With regard to "homosexuality," one such concern, the regulations state:

The basis for separation may include previous, prior service or current service conduct or statements. Homosexuality includes the member engaging in, attempting to engage in or soliciting another to engage in a homosexual act or acts. It also includes statements by the member that he or she is homosexual or bisexual, or the member marrying or attempting to marry a person known to be of the same biological sex.

Id. at Ch-2.15.3.c (emphasis added). The Academy regulations do not further define the term "homosexual."

The Department of Defense Directives applicable to homosexuality are more detailed. They begin with a statement describing their "basis" which provides:

Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work under close conditions affording minimal privacy;

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to recruit and retain members of the Military Services; to maintain the public acceptability of military service; and to prevent breaches of security.

DOD Directive 1332.14.H.1.a, 32 C.F.R. Pt. 41, App. A (1991) (superseded) (emphases added). The Directives mandate that a "member shall be separated ... if one or more of the following approved findings is made." Id. at 1332.14.H.1.c. One such finding is that "[t]he member has stated that he or she is a homosexual ... unless there is a further finding that the member is not a homosexual." Id. at 1332.14.H.1.c. (2). And the term "homosexual" is defined as "a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts." Id. at 1332.14.H.1.b. (1).

Joseph Steffan enrolled in the Naval Academy in 1983 and successfully completed three of his four years of training, consistently being ranked near the top of his class. During the fall of his senior year, Steffan confided in two fellow midshipmen that he was a homosexual. One of the two reported Steffan's conversation to Academy officials and on the basis of this report the Naval Investigative Service began an investigation of Steffan's homosexuality. Steffan was informed of that inquiry by a fellow midshipman in March 1987. When questioned by Naval investigators, Steffan "invoked his right to remain silent," but did confide his homosexuality to a chaplain in the Academy. Subsequently, in a meeting with the Commandant of the Academy, Steffan stated that he was a homosexual.

On March 24, 1987, the Academy convened a meeting of its Performance Board. At that hearing, Steffan was asked, "I'd like your word, are you a homosexual?" He replied, "Yes, sir." Steffan was then asked whether he had "anything else to add at this point," and he answered "no." Based on this hearing the Performance Board recommended to the Commandant of the Academy that "Steffan be separated from the Naval Academy due to insufficient aptitude for commissioned service." The Board did not state explicitly whether it was relying on the Academy's regulations or the Directives, although its conclusion appears to paraphrase the Academy regulation's wording. The Commandant accepted this recommendation and forwarded it to the Academic Board, chaired by the Superintendent of the Academy. That Board met on April 1 and voted to recommend Steffan's discharge from the Academy to the Secretary of the Navy, again based on "insufficient aptitude for commissioned service."

Following that meeting, Steffan, who was advised by counsel, reached an agreement with the Navy, the terms of which were embodied in a "statement of understanding" signed by Steffan. Steffan acknowledged in the statement that based upon the recommendation of the Academic Board, the Superintendent of the Academy would recommend his discharge. Steffan had been given a choice: either submit a "qualified resignation" or litigate and risk recommendation of a discharge. The official transcript of a midshipman who submits a "qualified resignation" reads "Resigned" rather than "Discharged" as the cause of separation. But the qualified resignation itself includes an acknowledgement by the midshipman that he will be recommended for discharge by the Superintendent if he does not resign. Had Steffan chosen to appeal--presumably to the Secretary of the Navy--and had the Secretary decided that discharge was in order, Steffan's transcript would have revealed "Discharged" as the reason for his termination. Steffan chose the first option and resigned from the Academy. The statement of understanding provided that by choosing to submit his resignation Steffan forfeited "his right to show cause to higher authority why he should not be disenrolled from the Naval Academy." The Secretary of the Navy accepted Steffan's resignation on May 28, 1987. Subsequently, the Naval Investigative Service terminated its uncompleted investigation into possible conduct-related criminal and regulatory violations by Steffan.

Roughly a year and a half after submitting his resignation, Steffan wrote the Secretary of the Navy seeking to withdraw his resignation and resume his studies at the Academy. The Superintendent of the Academy "strongly" recommended to the Secretary that he deny the request. The Superintendent's letter noted that Steffan had made an informed

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decision to resign following the conclusion of all the hearings to which he was entitled under Academy regulations. As for the merits of Steffan's request, the Superintendent pointed out that Steffan's admission that he was a homosexual constituted a basis for separation under the Academy regulations, and that the DOD Directives provided that "homosexuality" was incompatible with military service. The Secretary disapproved Steffan's request to withdraw his resignation "in accordance with the recommendation of the Superintendent."

Following that denial, Steffan brought suit in district court. Perhaps because of uncertainty as to whether his discharge was based on the Academy regulations or the DOD Directives, Steffan's complaint sought a declaration generally that "the regulations pursuant to which the Naval Academy acted are unconstitutional on their face and as applied to the Plaintiff herein." Steffan also sought an order "enjoining Defendants from prohibiting [him] from graduating and receiving his diploma from the Academy" and "from denying [him] his commission in the United States Navy." The district court entered summary judgment in favor of the government, and Steffan appealed. 2

Steffan, whose brief focuses almost entirely on the DOD Directives, argues that the military regulations lack a rational basis because they are simply an attempt to cater to the prejudices of members of the military and because they "punish" homosexuals simply on the basis of their "status" and "thoughts" rather than on the basis of conduct. Steffan concedes--and this concession frames the dispute--that the military may discharge those who engage in...

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