826 F.2d 722 (7th Cir. 1987), 87-1217, Ben-Shalom v. Secretary of Army

• Date: 18 August 1987
• Docket Number: 87-1217.
• Citation: 826 F.2d 722
• Parties: Miriam BEN-SHALOM, Petitioner-Appellee, v. SECRETARY of the ARMY, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 722

826 F.2d 722 (7th Cir. 1987)

Miriam BEN-SHALOM, Petitioner-Appellee,

v.

SECRETARY of the ARMY, Respondent-Appellant.

No. 87-1217.

United States Court of Appeals, Seventh Circuit

August 18, 1987

Argued May 22, 1987.

Page 723

Patrick T. Verigan, Milwaukee, Wis., for petitioner-appellee.

John C. Hoyle, Civil Div., Appellate Staff, Washington, D.C., for respondent-appellant.

Before BAUER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

After more than a ten-year absence from the military, Miriam ben-Shalom wants to return to complete her enlistment term with the United States Army Reserves. The Army, however, does not want her back. It discharged her from the Reserves in 1976 because she had made several statements admitting that she was a lesbian, a sexual preference that is not accepted by the Army. There was no proof that she engaged in homosexual acts nor made any advances toward female reservists. After her discharge, ben-Shalom filed suit in federal district court seeking only reinstatement; she did not seek monetary relief. In a published opinion, the district court concluded that her First Amendment rights had been infringed and ordered "the Department of the Army [to] reinstate the petitioner as a member of the Army reserves with all duties, responsibilities and privileges earned by her prior to her discharge." See ben-Shalom v. Secretary of the Army, 489 F.Supp. 964, 977 (E.D.Wis.1980). The government filed a timely notice of appeal from that decision but subsequently the Army voluntarily dismissed the appeal. Therefore, the decision of the district court became final.

After unsuccessful settlement negotiations, ben-Shalom filed a motion for contempt in September 1983, claiming that the Army had failed to comply with the reinstatement order. On June 6, 1984, the district court held that the Army was not in contempt of its order and sua sponte altered its 1980 order to require the Army to pay ben-Shalom the sum of $991.16 in lieu of reinstatement. She appealed.

In an unpublished order of September 9, 1985, 776 F.2d 1049, this Court concluded that because of a variety of circumstances including the settlement negotiations, the evidence did not establish that the Army was in contempt of the district court's order. We also held that the district court had improperly ordered the Army to pay ben-Shalom the sum of $991.16. As pointed out in our order, it is well established that a civil contempt proceeding does not reopen the legal or factual basis of the order alleged to have been disobeyed. United States v. Rylander, 460 U.S. 752, 756-757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521. Therefore, when the district court sua sponte altered its 1980 order to award only the $991.16, it acted improperly. We vacated the 1984 judgment of the district court and remanded the case. We advised ben-Shalom that she could request the district court's assistance in the enforcement of its 1980 final judgment pursuant to Federal Rule of Civil Procedure 70. We advised the Army that because it had failed to complete its initial appeal from the 1980 order, its only possible recourse would be to file a motion for relief from the 1980 judgment under Federal Rule of Civil Procedure 60(b). We expressed no opinion on the merits of the Rule...