871 F.2d 1068 (Fed. Cir. 1989), 86-1283, Woodward v. United States

Docket Nº:86-1283.
Citation:871 F.2d 1068
Party Name:James M. WOODWARD, Appellant, v. UNITED STATES, Appellee.
Case Date:March 29, 1989
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1068

871 F.2d 1068 (Fed. Cir. 1989)

James M. WOODWARD, Appellant,

v.

UNITED STATES, Appellee.

No. 86-1283.

United States Court of Appeals, Federal Circuit

March 29, 1989

Rehearing Denied May 2, 1989.

Suggestion for Rehearing In Banc Declined May 12, 1989.

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Daniel M. Schember, of Gaffney, Anspach, Schember, Klimaski & Marks, Washington, D.C., argued for appellant.

John S. Groat, of the Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, and M. Susan Burnett, Asst. Director. Of counsel was Lt. Col. Keith Sefton, of the Dept. of the Navy, Office of the Judge Advocate General, Alexandria, Va.

Before FRIEDMAN, SMITH and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.

Appellant James M. Woodward appeals the summary judgment of the United States Claims Court, No. 692-83C (March 31, 1986), upholding the decision of the Department of the Navy (Navy) to release him from active duty. We affirm that judgment, but on other grounds.

Background

Woodward enlisted in the U.S. Naval Reserve in June 1972. At that time, he completed a fitness questionnaire in which he indicated, according to the trial court, that "he was attracted sexually to, or desired sexual activity with, members of his own sex [but that he had never] engaged in homosexual conduct." Despite this acknowledgment, 1 Woodward was accepted into Navy flight school in June 1972.

After completing flight school, Woodward was assigned to Carrier Airborne Early Warning Squadron 116, a fleet operational squadron assigned to the Philippines. While stationed there in 1974, Woodward visited the Subic Bay Officers' Club in the company of an enlisted man who was awaiting discharge from the Navy because of homosexuality. Woodward's commanding officer subsequently questioned him about the incident, at which time Woodward "admitted his homosexual tendencies and stated that since he knew no 'gay' officers he had sought the company of 'gay' enlisted men." The commanding officer then asked Woodward to resign. When Woodward refused, the commanding officer wrote to the Chief of Naval Personnel recommending that Woodward be discharged.

Woodward informed the Chief of Naval Personnel in a September 17, 1974 letter via his commanding officer that:

I am, and have been, since I became sexually aware, primarily homosexually oriented.... I do, and will continue to, associate with other homosexuals.

* * *

* * *

I am well aware of the problems of social acceptance and special problems of leadership with which I will be confronted as

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my associates become aware of my homosexuality.

* * *

* * *

For the good of both the Navy and myself, I respectfully request the chance to contribute to the defense of the United States as an honest, open, "gay" officer. I recommend that the matter of my homosexuality be dropped as a matter of official concern.

The recommended discharge was not processed and, pursuant to routine Navy practice when a commanding officer's discharge recommendation is not accepted, Woodward was made available for reassignment or release from active duty. Woodward's file was then reviewed by a personnel officer in the office of the Chief of Naval Personnel responsible for grading an individual's performance records and recommending whether the Navy should reassign or release the individual. According to the officer who reviewed Woodward's file and other officers with review responsibilities, fitness reports comparable to Woodward's reports usually received grades of "C" or "D" and reserve officers who received such grades were released from active duty. A grade of "A" or "B" was generally required for retention on active duty. The record shows that the Navy ranked Woodward below the cutoff point for retaining a reservist for the following reasons: Woodward had acknowledged his homosexuality; his fitness reports, which were prepared by Woodward's commanding officer prior to Woodward's admission of homosexuality, were "far from outstanding," leaving him uncompetitive with other reserve officers available for reassignment or release; and his release would appropriately implement the Navy policy (at that time) of reducing the number of reserve officers on active duty.

Woodward was released from active duty on October 22, 1974 and reassigned to the Naval Air Reserve Staff H-1 in San Diego, California. He served there without pay in an inactive reserve status and received a promotion to Lieutenant, junior grade. Later, at his request, the Navy released him from further reserve status. During this period Woodward was passed over twice for a further promotion and the Navy thereafter discharged him when his six-year term of service had been completed.

TRIAL COURT DECISION

Woodward initially brought this action in the United States District Court for the District of Columbia seeking back pay and reinstatement to active duty in the U.S. Naval Reserve. He alleged in part that his release from active status was in violation of his constitutional rights of due process and freedom of association. After prolonged proceedings, including two appeals, it was ascertained that the district court lacked jurisdiction under 28 U.S.C. Sec. 1346 (1982) because Woodward's pay claim exceeded $10,000. See Woodward v. Moore, 451 F.Supp. 346 (D.D.C.1978); Woodward v. Moore, No. 78-2062 (D.C.Cir. March 26, 1979); Woodward v. Moore, 25 Fair Emp.Prac.Cas. (BNA) 695 (D.D.C.1981), vacated, Woodward v. Moore, 684 F.2d 1033 (D.C.Cir.1982). This case was then transferred to the Claims Court.

Before the Claims Court, Woodward asserted that the Navy improperly and unconstitutionally released him from active duty because of admitted homosexual tendencies. He contended that his release violated the First and Fifth Amendments of the United States Constitution. The Navy challenged these contentions, arguing that Woodward's release was based on his record and his performance and, further, that the court lacked jurisdiction to review the Navy's action because of the discretion conferred on the Secretary of the Navy by 10 U.S.C. Sec. 681(a) (1982) (providing that the Secretary may release a reservist from active duty at any time). Both parties moved for summary judgment.

The Claims Court recognized that the Secretary was vested with wide discretion to release a reservist from active duty. The Claims Court determined, however, that it could review such a personnel action for violation of regulations and for violation of constitutional rights where such violations would give rise to monetary claims. The Claims Court then assumed

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that Woodward's conduct was constitutionally protected and reviewed Woodward's release, under the guidelines of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). It found that the Navy had met its burden of showing by a preponderance of the evidence that the Navy would have reached the same decision as to Woodward's release, without regard to the conduct claimed to be constitutionally protected, because his performance was below the level necessary to be retained on active duty.

ANALYSIS

I

On appeal, Woodward contends that the Claims Court erred in its application of Mt. Healthy City School District Board of Education v. Doyle to this case by finding the Navy had proved an independent basis for his release. He further contends that release from active duty violated his constitutional rights to privacy and to equal protection under the laws. 2

The Navy, on the other hand, asserts that the commanding officer's recommendation to discharge Woodward, the Navy's subsequent review of Woodward's record for potential transfer or release, and the decision to release Woodward from active duty are all immune from judicial review. The Navy further contends that homosexuality is not constitutionally protected conduct and, even if such conduct is constitutionally protected, that the Navy met its burden of proving an independent basis for deciding to release Woodward.

II

We consider first the Navy's assertion that the commanding officer's recommendation that Woodward be discharged, the review for transfer or release, and the Navy's subsequent decision to release him from active duty are not judicially reviewable.

The statutory authority given to the Secretary of the Navy to release a reserve officer from active duty is not subject to any procedural or substantive limitation. It is contained in 10 U.S.C. Sec. 681(a) (1982) and provides that "the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty." The applicable Navy instruction preserves the discretion granted by that section and does not provide an independent source of procedural or substantive protection. 3 See Webster v. Doe, --- U.S. ----, 108 S.Ct. 2047, 2053 n. 8, 100 L.Ed.2d 632 (1988), aff'g Doe v. Casey, 796 F.2d 1508, 1520 (D.C.Cir.1986). Cf. Sampson v. Murray, 415 U.S. 61, 71, 94 S.Ct. 937, 944, 39 L.Ed.2d 166 (1974) (federal courts have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed its administrative regulations). Secretary of the Navy Instruction 1920.6 (July 14, 1971) (SECNAVINST 1920.6), setting forth "procedures, regulations, and instructions for

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implementation of statutes which provide for the separation of officers from the Navy and Marine Corps, termination of appointments, revocation of commission and/or discharge, release from active duty," provides as to reserve officers:

  1. Reserve Officers

...

(3) Release from Active Duty. In the case of Reserve...

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