Bittner v. Secretary of Defense
Decision Date | 13 June 1985 |
Docket Number | Civ. A. No. 84-1730. |
Citation | 625 F. Supp. 1022 |
Parties | Warren R. BITTNER, et al., Plaintiffs, v. SECRETARY OF DEFENSE, et al., Defendants. |
Court | U.S. District Court — District of Columbia |
Michael J. McDanold, Sidley & Austin and Donald M. Squires, Washington, D.C. (Elizabeth Symonds and Arthur B. Spitzer, ACLU Fund of the Nat. Capital Area, Washington, D.C., of counsel), for plaintiffs.
Michael L. Martinez, Asst. U.S. Atty., Washington, D.C., for defendants.
This matter is before the Court on defendants' motion to dismiss this action, plaintiffs' opposition thereto, defendants' reply to plaintiffs' opposition, supplemental briefing, oral argument on the motion, and the entire record herein. For the reasons set forth below in detail, the Court denies defendants' motion, but dismisses some of the named plaintiffs.
On June 5, 1984, eight former service-members of the United States Army, Navy, and Air Force brought suit against the Secretary of Defense and the Secretaries of the United States Navy, Army, and Air Force. Also named in the original complaint were organizations, namely, the Vietnam Veterans of America ("VVA"), and the National Gay Task Force ("NGTF"). By means of an amended complaint filed on August 3, 1984, an additional plaintiff, Warren R. Bittner, was included in the action.
Plaintiffs in this case seek declaratory and injunctive relief for the allegedly illegal and unconstitutional practices and policies with regard to the creation, maintenance, and public disclosure of records reflecting less than honorable discharge of military service. The individually named plaintiffs in this action challenge the less-than-honorable-discharge characterization issued administratively for alleged homosexual acts, homosexual tendencies, or homosexuality regardless of whether such acts or status as a homosexual had an impact on the servicemembers' performance of military duties. Eight of the individual plaintiffs not only challenge the character of the discharge itself, but also challenge the administrative decisions of the Discharge Review Boards ("DRB") and the Boards for Correction of Military Records ("BCMR") as unlawful within the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2). Plaintiff Bittner's claim is limited to challenging the characterization of his discharge. The two organizational plaintiffs seek declaratory and injunctive relief to strike down defendants' current discharge characterization policy because it allegedly is violative of the law and the Constitution.
Defendants seek to dismiss this action on three grounds: lack of standing for the organizational plaintiffs, failure to exhaust administrative remedies for plaintiff Bittner, and statute of limitations for the remaining eight individual plaintiffs.
Upon review of each argument, the Court concludes that plaintiff VVA must be dismissed for lack of standing; that plaintiff Bittner must be dismissed, without prejudice, for failure to exhaust available administrative remedies; and that the remaining eight individual plaintiffs are not barred by the statute of limitations from bringing this action to seek review of the administrative review boards' decisions, but are barred from seeking review of their original discharge. Some of these eight plaintiffs, however, are dismissed, without prejudice, for failure to exhaust their administrative remedies. Accordingly, only two individual plaintiffs remain to pursue review of the administrative determination, and the NGTF may remain to pursue claims against defendants' challenged policies and practices. The Court shall review each type of plaintiff sought to be dismissed by defendants.
Plaintiffs VVA and NGTF assert that the military policy regulating the character of discharges issued to homosexuals has caused them "injury in fact" and, therefore, gives standing to these plaintiffs.
In the admittedly broad but unanimous decision in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Supreme Court outlined the requirements necessary for an organization to attain standing. In that decision certain individuals and an organization sought to challenge a realty company's alleged practice of "racial steering." The organizational plaintiff was Id. at 368, 102 S.Ct. at 1118-19. Quoting the complaint, the Court outlined what the organizational plaintiff alleged:
Id. at 1349 (emphasis added). See also Davis v. Mansards, 597 F.Supp. 334, 343 (N.D.Ind.1984).
Although plaintiff VVA is able to allege that it has incurred a drain on its organizational resources, no allegation is made that it has been hindered in effecting its organizational goals. Actual interference with the implementation of the VVA's programs must also be claimed before sufficient injury is present for standing purposes. A mere depletion of resources in asserting claims of allegedly illegal activity is not sufficient to confer standing. Accordingly, the Court finds that plaintiff VVA does not have standing to pursue this action and must therefore be dismissed.
In determining whether the NGTF has standing, the Court looks to the reasoning as set forth in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In Warth, the Supreme Court stated that:
The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.... So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensible to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction.
Id. at 511, 95 S.Ct. at 2211 (emphasis added). What plaintiff NGTF has alleged in this action is that its homosexual members presently in the military are threatened with a less than honorable discharge as a direct result of defendants' policy and practice.
Defendants, in seeking to dismiss ...
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