Richenberg v. Perry

• Citation: 97 F.3d 256
• Decision Date: 17 January 1997
• Docket Number: No. 95-4181,95-4181
• Parties: 68 Empl. Prac. Dec. P 44,259 Richard F. RICHENBERG, Jr., Plaintiff-Appellant, v. William J. PERRY, Secretary of Defense; Sheila Widnall, Secretary of the Air Force, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 256

97 F.3d 256

68 Empl. Prac. Dec. P 44,259

Richard F. RICHENBERG, Jr., Plaintiff-Appellant, v. William J. PERRY, Secretary of Defense; Sheila Widnall, Secretary of the Air Force, Defendants-Appellees.

No. 95-4181.

United States Court of Appeals,

Eighth Circuit.

Submitted April 8, 1996.

Decided Oct. 3, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

17, 1997. ^*

Thomas C. Kayser, Minneapolis, MN, argued (Randall Tietjen, on the brief), for plaintiff-appellant.

Anthony J. Steinmeyer, Department of Justice, Washington, DC, argued (Edward Himmelfarb, Department of Justice, Washington, DC, and Lt. Col. Steven J. Pecinovsky, Air Force Legal Services, Arlington, VA, on the brief), for defendants-appellees.

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Richard F. Richenberg, Jr., appeals the district court's ¹ grant of summary judgment upholding an Air Force decision to honorably discharge him under the military's "Don't Ask, Don't Tell" policy regarding homosexuals. The policy was adopted to implement a 1993 statute, 10 U.S.C. § 654. Richenberg claims that the policy violates his due process and free speech rights and is an unconstitutional Bill of Attainder. He also challenges the Air Force's decision under the Administrative Procedure Act ("APA"). Like two other circuits that have recently considered similar challenges, we find no constitutional infirmity in the statute and military policy. We also find no APA infirmity in this decision and therefore affirm.

I. THE POLICY

Prior to 1993, Department of Defense ("DOD") Directives and regulations of the individual services excluded from military service any person "who engages in, desires to engage in, or intends to engage in homosexual acts." DOD Dir. No. 1332.14 (1981), 32 C.F.R. Part 41, App. A (1992). Though the issue never reached this court, other circuits rejected numerous constitutional challenges to this long-standing policy. See Steffan v. Perry, 41 F.3d 677 (D.C.Cir.1994) (en banc); Meinhold v. Department of Defense, 34 F.3d 1469 (9th Cir.1994); Ben-Shalom v. Marsh, 881 F.2d 454, 456 (7th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Woodward v. United States, 871 F.2d 1068 (Fed.Cir.1989), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir.1984).

In early 1993, President Clinton called for a reevaluation of the policy. The Senate and House Armed Services Committees held extensive hearings which included testimony by sociologists, gay rights activists, military personnel experts, members of the armed forces in all ranks, and private citizens and organizations. ² DOD also intensively studied the issue. See, e.g., Sen. Comm. Hr'gs at 707-08 (statement of General Colin Powell). On July 19, 1993, the Secretary of Defense published a new policy regarding homosexuals and the military. At the core of that policy was the "Don't Ask, Don't Tell" concept: "Applicants for military service will not be asked or required to reveal their sexual orientation.... Servicemembers will be separated for homosexual conduct." "A statement by a servicemember that he or she is homosexual or bisexual creates a rebuttable presumption that the servicemember is engaging in homosexual acts or has a propensity or intent to do so." Policy on Homosexual Conduct in the Armed Forces, 1 Pub. Papers 1111 (July 19, 1993). General Powell deemed this policy "a choice which is in the best interests of the Armed Forces and the best interests of the American people." Sen. Comm. Hr'gs at 709.

On November 30, 1993, after further review and debate, Congress enacted 10 U.S.C § 654. ³ That statute begins by reciting essential congressional findings, including:

(8) Military life is fundamentally different from civilian life in that--

(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

* * * * * *

(12) the worldwide deployment of United States military forces ... and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.

(13) The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.

* * * * * *

(15) the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

10 U.S.C. § 654(a). The statute defines "homosexual" as a person of either gender "who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." "Homosexual acts" are defined as "bodily contact ... for the purpose of gratifying sexual desires." §§ 654(f)(1) & (3)(A).

In the provision at issue on this appeal, the statute provides that a servicemember "shall be separated from the armed forces" if there is a finding "[t]hat the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding ... 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." § 654(b)(2). In other words, to avoid discharge, a servicemember who has declared, "I am a homosexual," must prove that he or she is not a homosexual as that term is defined in the statute.

In February 1994, the military implemented § 654. DOD Directive 1332.30 governs commissioned officers such as Richenberg. The relevant portion of this lengthy Directive provides:

C. HOMOSEXUAL CONDUCT

Homosexual conduct is grounds for separation from the Military Services under the terms set forth in paragraph C.1.b., below.... A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct.

* * * * * *

1.b. ... A statement by an officer that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the officer engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The officer shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he or she does not engage in, attempt to engage in, have a propensity to engage in or intend to engage in homosexual acts. Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts.

DOD Dir. 1332.30, Encl. 2, p C & C.1.b., at pp. 2-1, 2-2. The Air Force amended its Administrative Discharge Procedures, AFR 36-2, to conform with § 654 and Directive 1332.30.

II. RICHENBERG'S DISCHARGE

Richenberg entered the Air Force in 1985. After reaching the rank of Captain and serving in the Gulf War, he began training for the Foreign Military Sales program in Saudi Arabia. In April 1993, he requested separation from the Air Force. The Air Force denied this request because his training was nearly complete. Richenberg then informed his commanding officer that he is homosexual, acknowledging that "I am forcing you to take actions which may ultimately result in my discharge." The Air Force canceled his Saudi Arabian mission, reassigned him to Offutt Air Force Base in Nebraska, and initiated discharge proceedings.

After a December 1993 hearing, a Board of Inquiry recommended Richenberg's discharge. The Secretary of the Air Force ordered reconsideration under the new "Don't Ask, Don't Tell" policy. After a second hearing in June 1994, the Board of Inquiry recommended separation with an honorable discharge. An Air Force Legal Review concluded that the Board's "findings support discharge for making homosexual statements and failing to rebut the presumption that the respondent has a propensity to engage in homosexual acts." The Air Force Board of Review agreed. On August 28, 1995, the Secretary of the Air Force ordered Richenberg's honorable discharge.

Richenberg then commenced this action. The district court granted the defendants' motion for summary judgment, rejecting Richenberg's constitutional challenge and concluding that substantial evidence supports the agency's decision. Richenberg v. Perry, 909 F.Supp. 1303 (D.Neb.1995). Following Richenberg's appeal, we declined to enter an injunction preventing discharge during the appeal. Richenberg v. Perry, 73 F.3d 172 (8th Cir.1995). We now consider the merits of that appeal. The Fourth Circuit upheld the policy's constitutionality in Thomasson v. Perry, 80 F.3d 915 (4th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996). The Second Circuit reversed a district court decision that the rebuttable presumption in § 654(b)(2) is unconstitutional and remanded for consideration of the constitutionality of § 654(b)(1) in Able v. United States, 88 F.3d 1280 (2nd Cir.1996).

III. DUE PROCESS

Richenberg argues that 10 U.S.C. § 654(b)(2) and DOD Directive 1332.30 violate the Fifth Amendment's Due Process Clause, and particularly its equal protection component, by adopting...