Witt v. Department of Air Force

• Decision Date: 21 May 2008
• Docket Number: No. 06-35644.,06-35644.
• Parties: Margaret WITT, Major, Plaintiff-Appellant, v. DEPARTMENT OF THE AIR FORCE; Robert M. Gates,<SMALL><SUP>*</SUP></SMALL> Secretary of Defense; Michael W. Wynne, Secretary, Department of the Air Force; Mary L. Walker, Colonel, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

527 F.3d 806

Margaret WITT, Major, Plaintiff-Appellant, v. DEPARTMENT OF THE AIR FORCE; Robert M. Gates,^* Secretary of Defense; Michael W. Wynne, Secretary, Department of the Air Force; Mary L. Walker, Colonel, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB, Defendants-Appellees.

No. 06-35644.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2007.

Filed May 21, 2008.

[527 F.3d 809]

James E. Lobsenz, Carney Badley Spellman, P.S., Seattle, WA, for the appellant.

Aaron H. Caplan, ACLU of Washington, Seattle, WA, for the appellant.

Peter Keisler, Attorney General, Department of Justice, WA, DC, for the appellees.

Anthony J. Steinmeyer, Assistant Branch Director, Appellate Staff, Civil Division, Department of Justice, Washington, DC, for the appellees.

Appeal from the United States District Court for the Western District of Washington; Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-06-05195-RBL.

Before: WILLIAM C. CANBY, Senior Circuit Judge, SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge:

Plaintiff-Appellant Major Margaret Witt ("Major Witt") sued the Air Force, the Secretary of Defense, the Secretary of the Air Force, and her Air Force commander ("the Air Force") after she was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman. Major Witt alleges that 10 U.S.C. § 654, commonly known as the "Don't Ask, Don't Tell" policy ("DADT"), violates substantive due process, the Equal Protection Clause, and procedural due process. She seeks to enjoin DADT's enforcement. The district court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We reverse and remand in part, and affirm in part.

I

Major Witt entered the Air Force in 1987.¹ She was commissioned as a Second Lieutenant that same year and promoted to First Lieutenant in 1989, to Captain in 1991, and to Major in 1999. In 1995, she transferred from active to reserve duty and was assigned to McChord Air Force Base in Tacoma, Washington.

By all accounts, Major Witt was an outstanding Air Force officer. She received medals for her service, including the Meritorious Service Medal, the Air Medal, the Aerial Achievement Medal, the Air Force Commendation Medal, and numerous others. Her annual "Officer Performance Reviews" commended her accomplishments and abilities. Major Witt was made an Air Force "poster child" in 1993, when the Air Force featured her in recruitment materials; photos of her appeared in Air Force promotional materials for more than a decade.

Major Witt was in a committed and long-term relationship with another woman from July 1997 through August 2003. Major Witt's partner was never a member nor a civilian employee of any branch of the armed forces, and Major Witt states that she never had sexual relations while on duty or while on the grounds of any Air Force base. During their relationship, Major Witt and her partner shared a home in Spokane, Washington, about 250 miles away from McChord Air Force Base. While serving in the Air Force, Major Witt never told any member of the military that she was homosexual.

In July 2004, Major Witt was contacted by Major Adam Torem, who told her that he had been assigned to investigate an allegation that she was homosexual. She declined to make any statement to him. An Air Force chaplain contacted her thereafter to discuss her homosexuality, but she declined to speak to him, as well. In November 2004, Major Witt's Air Force superiors told her that they were initiating formal separation proceedings against her on account of her homosexuality. This was confirmed in a memorandum that Major Witt received on November 9, 2004. That memorandum also stated that she could not engage in any "pay or point activity pending resolution" of the separation proceedings. Stated another way, she could not be paid as a reservist, she could not earn points toward promotion, and she could not earn retirement benefits. When she received this memorandum, Major Witt was less than one year short of twenty years of service for the Air Force, at which time she would have earned a right to a full Air Force retirement pension.

Sixteen months later, on March 6, 2006, Major Witt received another memorandum notifying her that a discharge action was being initiated against her on account of her homosexuality. It also advised her of her right to request an administrative hearing, which she promptly did. On April 12, 2006, Major Witt filed this suit in the United States District Court for the Western District of Washington, seeking declaratory and injunctive relief from the discharge proceedings.

A military hearing was held on September 28-29, 2006. The military board found that Major Witt had engaged in homosexual acts and had stated that she was a homosexual in violation of DADT. It recommended that she be honorably discharged from the Air Force Reserve. The Secretary of the Air Force acted on this recommendation on July 10, 2007, ordering that Major Witt receive an honorable discharge.

Major Witt is well regarded in her unit, and she believes that she would continue to be so regarded even if the entire unit was made aware that she is homosexual. She also contends that the proceedings against her have had a negative effect on unit cohesion and morale, and that there is currently a shortage of nurses in the Air Force of her rank and ability. We must presume those facts to be true for the purposes of this appeal.²

II

A

We review de novo a dismissal for failure to state a claim. Pruitt v. Cheney, 963 F.2d 1160, 1162-63 (9th Cir.1992).

DADT, 10 U.S.C. § 654, permits the discharge of members of the armed forces on account of homosexual activity. In relevant part, it provides:

(b) Policy.—A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that—

(A) such conduct is a departure from the member's usual and customary behavior;

(B) such conduct, under all the circumstances, is unlikely to recur;

(C) such conduct was not accomplished by use of force, coercion, or intimidation;

(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(3) That the member has married or attempted to marry a person known to be of the same biological sex.

Id.

Major Witt argues that DADT violates substantive due process, the Equal Protection Clause, and procedural due process. The Ninth Circuit has considered and rejected similar claims in the past, see, e.g., Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126, 1136 (9th Cir.1997) (rejecting an Equal Protection Clause challenge to DADT under rational basis review); Philips v. Perry, 106 F.3d 1420, 1425-26 (9th Cir.1997) (same); Beller v. Middendorf, 632 F.2d 788, 805-12 (9th Cir.1980) (rejecting procedural due process and substantive due process challenges to a Navy regulation forbidding homosexual service in the Navy). However, Major Witt argues that Holmes, Philips, and Beller are no longer dispositive in light of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which the Supreme Court struck down a Texas statute that banned homosexual sodomy. Accordingly, to resolve this appeal, we must consider the effect of Lawrence on our prior precedents.

B

We first assess whether Major Witt has standing to pursue this action. "[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an `injury in fact'—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not `conjectural' or `hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations, footnote, and quotation marks omitted). Second, plaintiff must present a "causal connection between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court." Id. (internal quotation marks and brackets omitted). Finally, "it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Id. at 561, 112 S.Ct. 2130.

There is little doubt that Major Witt meets the second and third requirements, if she can meet the first requirement — an actual injury from DADT. There are, however, questions about whether she has suffered an actual injury for Article III purposes. Although Major Witt has been suspended, the military board recommended her discharge, and the Secretary of the Air Force ordered her discharge, she has not been formally discharged from the military, as far as the record before us shows. Accordingly, at least some of Major Witt's claims are unripe because they rely on harms which may or may not actually...