963 F.2d 1160 (9th Cir. 1991), 87-5914, Pruitt v. Cheney

Docket Nº:87-5914.
Citation:963 F.2d 1160
Party Name:Dusty PRUITT, Captain, U.S.A.R., Plaintiff-Appellant, v. Richard CHENEY, [*] Secretary of Defense; Michael P.W. Stone, [**] Secretary of the Army; Ronald W. Zeltman, Brigadier General, Commanding Officer U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, Defendants-Appellees.
Case Date:August 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1160

963 F.2d 1160 (9th Cir. 1991)

Dusty PRUITT, Captain, U.S.A.R., Plaintiff-Appellant,

v.

Richard CHENEY, [*] Secretary of Defense;

Michael P.W. Stone, [**] Secretary of the

Army; Ronald W. Zeltman, Brigadier General, Commanding

Officer U.S. Army Reserve Components Personnel and

Administration Center, St. Louis, Missouri, Defendants-Appellees.

No. 87-5914.

United States Court of Appeals, Ninth Circuit

August 19, 1991

Argued and Submitted Aug. 5, 1988.

Amended Opinion on Denial of Rehearing

and Rehearing En Banc Filed

May 8, 1992.

Page 1161

May Newcombe, Christopher G. Caldwell, Hedges and Caldwell; Jon Davidson, Paul Hoffman, Susan McGreivy, ACLU Foundation of Southern California, Los Angeles, Cal., for plaintiff-appellant.

E. Roy Hawkens, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Paula Ettelbrick, Mickey Wheatley, Lambda Legal Defense and Educ. Fund, Inc., New York City, Charles T. Bumer, Nat. Lawyers Guild, San Diego, Cal., for amici curiae.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, CANBY, and O'SCANNLAIN, Circuit Judges.

ORDER

The panel has voted unanimously to amend the opinion previously issued in this case. The amended opinion is attached and is ordered filed.

With that amendment, the panel has voted to deny the petition for rehearing and suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc, and of the proposed amendment to the opinion, and no judge of the court has requested a vote to rehear the matter en banc.

The petition for rehearing is hereby denied and the suggestion for rehearing en banc is rejected.

OPINION

CANBY, Circuit Judge:

Appellant, Reverend Dusty Pruitt, appeals from the district court's dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), of her first and fifth amendment challenges to Army regulations requiring her discharge from the U.S. Army Reserve (USAR) because of her acknowledged homosexuality. We affirm in part and reverse in part.

BACKGROUND

The facts of this case are not in dispute. Reverend Pruitt served in the U.S. Army between January 1971 and July 1975, ultimately rising to the rank of Captain. After leaving active service to seek ordination as a methodist minister, Pruitt remained an officer in the U.S. Army Reserve (USAR). On May 25, 1982, Pruitt was notified of her selection for promotion to the rank of Major effective February 6, 1983. Pruitt's outstanding record in both active and reserve service is undisputed.

On January 27, 1983, the Los Angeles Times published an interview with Pruitt which revealed that she was a lesbian and had twice gone through ceremonies of marriage to other women. The article focused on Pruitt's struggle to resolve personal contradictions between her religion and military career, and her sexuality. Through this article the Army first learned of Pruitt's homosexuality. On the basis of this information, the Army suspended Pruitt's promotion to Major pending an investigation to determine whether Pruitt should be separated from the Army Reserve pursuant to AR 135-175, which mandates the discharge of homosexual servicemembers.

On April 4, 1983, Pruitt filed this action in district court. In her complaint, Pruitt declared that she was homosexual. She alleged, however, that the Army was barred by the first amendment from discharging her solely on the basis of her admission of homosexuality. 1 The district court denied the Army's motion to dismiss without prejudice and stayed the action pending completion by the Army of its administrative investigation.

On April 17, 1984, the Army advised Pruitt of its intention to revoke her security clearance on the ground that "substantial evidence of record [supports the conclusion] that you are a practicing homosexual (lesbian) as defined by paragraph 2-38, AR 135-175." 2 Pruitt responded on May 16, 1984 by letter to the Army contesting the

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proposed revocation of her clearance. In the letter, Pruitt again admitted her homosexuality:

I am a homosexual. I do not believe that as a homosexual woman, I am a security risk; therefore, I cannot see what the matter of my being a homosexual has to do with my security clearance....

Although the record is clear that Pruitt is homosexual, there is no evidence in this case that she engaged in homosexual acts, or made any advance toward any active or reserve soldier that might be construed as homosexual conduct.

An Army Administrative Board ("Board") convened on September 7, 1985 to determine whether sufficient evidence supported the conclusion that Pruitt was homosexual. The Board accepted into evidence the following: Pruitt's Complaint for Declaratory Relief filed April 4, 1983 (in which she declared she was homosexual); the Los Angeles Times article; the letter of May 16, 1984 in which Pruitt explicitly informed the Army of her homosexuality; and Pruitt's military record. Pruitt attended the proceeding and was represented by legal counsel, but she refused to testify before the board. She made no effort to challenge the veracity of the newspaper articles, or to explain what she meant when she identified herself as homosexual. The Board concluded that Pruitt was a homosexual within the meaning of AR 135-175, and recommended that she be honorably discharged. 3 The Board's recommendation was accepted by the review authority of the Department of the Army and Pruitt received an honorable discharge on July 9, 1986.

Upon learning of the discharge, Pruitt renoticed her motion for summary judgment, and the Army responded by renewing its motion to dismiss. The district court denied Pruitt's motion for summary judgment, and granted the Army's motion to dismiss, stating that the Army's determination that homosexual personnel are incompatible with its military mission is entitled to substantial deference. This appeal followed.

We withdrew this case from submission pending the en banc decision of this court in Watkins v. United States Army, 875 F.2d 699 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990), a case raising an equal protection challenge to regulations similar to those challenged by Pruitt. Watkins was decided on May 3, 1989. The Watkins en banc court, however, did not reach the equal protection issue, instead deciding the case on estoppel grounds. Because the facts of this case do not support an estoppel argument, the Watkins opinion has little impact on this decision. We resubmitted this case and now address Pruitt's constitutional claims. We have jurisdiction over this appeal under 28 U.S.C. § 1291.

STANDARD OF REVIEW

The district court's denial of Pruitt's motion for summary judgment and GRANTING

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of the Army's motion to dismiss present questions of law which we review de novo. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986) (summary judgment); Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986) (dismissal).

DISCUSSION

I. First Amendment Claim

Pruitt characterizes her involuntary discharge as a violation of her rights to free speech guaranteed by the first amendment. She concedes that the Army legitimately may proscribe homosexual conduct in the military context. Nevertheless, because there is no allegation that she engaged in homosexual activity while on duty or performed inadequately as an officer, she contends that her discharge was based on protected expression--her public assertions of her sexuality recorded in the Los Angeles Times article.

Under the Army's regulation, a member may be discharged for stating that he or she is homosexual even absent proof of homosexual conduct, AR 135-175, p 2-39. Pruitt argues that this regulation is facially invalid because it inhibits pure speech, infringes on the right to receive information, and is not necessary to promote the military's interests. Alternatively, Pruitt argues that AR 135-175 is unconstitutional as applied in her case.

Because the allegations of the complaint establish that Pruitt was not discharged for her speech, a threshold requirement for implicating the first amendment, we reject these arguments. See Johnson v. Orr, 617 F.Supp. 170, 172, 174 (E.D.Cal.1985) (describing as "specious" a first amendment claim similar to that raised by Pruitt) aff'd mem., 787 F.2d 597 (9th Cir.1986). Pruitt argues that her statements about her sexual orientation constituted political speech, touching on a matter of public concern. It is true that the substance of the Los Angeles Times article was protected speech. Nevertheless, Pruitt was discharged not for the content of her speech, but for being a homosexual. Addressing this issue in a virtually identical case, the Seventh Circuit recently said:

[Appellant] is free under the regulation to say anything she pleases about homosexuality and about the Army's policy toward homosexuality. She is free to advocate that the Army change its stance; she is free to know and talk to homosexuals if she wishes. What [appellant] cannot do, and remain in the Army, is to declare herself to be a homosexual. Although that is, in some sense speech, it is also an act of identification. And it is the identity that makes her ineligible for military service, not the speaking of it aloud.

Ben-Shalom v. Marsh, 881 F.2d 454, 462 (7th Cir.1989) (emphasis in original), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990).

This language applies equally well here. A central problem underlying Pruitt's first amendment argument is that it is based, understandably enough, on the classical dichotomy between the punishment of speech and the punishment of conduct. Because she was not discharged for her conduct, Pruitt concludes that she was discharged for her speech. The Army, however, is not discharging members just for homosexual conduct, or even primarily for homosexual...

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