BenShalom v. Secretary of Army

• Decision Date: 20 May 1980
• Docket Number: Civ. A. No. 78-C-431.
• Citation: 489 F. Supp. 964
• Parties: Miriam benSHALOM, Petitioner, v. SECRETARY OF ARMY, Clifford Alexander or his successor; and Commanding Officer, United States Army, Headquarters, Third Battalion, 351st Regiment, Fourth Brigade, 84th Division (Training), Respondents.
• Court: U.S. District Court — Eastern District of Wisconsin

489 F. Supp. 964

Miriam benSHALOM, Petitioner, v. SECRETARY OF ARMY, Clifford Alexander or his successor; and Commanding Officer, United States Army, Headquarters, Third Battalion, 351st Regiment, Fourth Brigade, 84th Division (Training), Respondents.

Civ. A. No. 78-C-431.

United States District Court, E. D. Wisconsin.

May 20, 1980.

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Stephen M. Glynn, Shellow & Shellow, Milwaukee, Wis., for petitioner.

Lawrence O. Anderson, Asst. U.S. Atty., Milwaukee, Wis., for respondents.

DECISION AND ORDER

TERENCE T. EVANS, District Judge.

The petitioner, Miriam benShalom, brings this mandamus action seeking to compel the respondents to reinstate her as a member of the United States Army Reserves. Ms. benShalom was honorably discharged from the reserves on December 1, 1976. The matter is before the court on cross-motions for summary judgment and respondents' alternative motion to dismiss.

The unique question of law presented here is whether petitioner can be discharged from the Army (even if the discharge is "honorable") simply because she is a homosexual, although there is no showing that her sexual preferences interfered with her abilities as a soldier or adversely affected other members of the Service.

Ms. benShalom, enlisted in the United States Army for a 3-year period of Reserve duty in November, 1974. She graduated from the 84th Division (Training) Drill Sergeant School at Fort Leonard Wood, Missouri, and from the Drill Sergeant Course at the Leadership Academy, 84th Division (Training), in Milwaukee, Wisconsin. Apparently Ms. benShalom was the only woman in the graduating class. After graduation, she became an instructor at the Fourth Brigade Drill Sergeant Academy. She commenced her duties December 1, 1975. At various times during her enlistment, Ms. benShalom acknowledged that she was homosexual.

On December 11, 1975, Ms. benShalom was informed, by letter from Major Jerome D. Hardt, that she was being considered for discharge from the Reserves under Chapter 6 of the Army Regulations (A.R. 135-178) dealing with homosexuality. She was originally charged with engaging in homosexual activities. She demanded a hearing before a Board of Officers.

On June 11, 1976, the Army revised the charge, deciding instead to process her discharge under Chapter 7-5b(6) of A.R. 135-178. This section allows for the discharge of any soldier who "evidences homosexual tendencies, desire, or interest, but is without overt homosexual acts". She received formal notice of the revised charge on July 12, 1976. Again, she demanded a hearing before a Board of Officers.

A hearing was held September 18, 1976. Testimony was adduced establishing that the petitioner had publicly acknowledged her homosexuality during conversations with fellow reservists, in an interview with a reporter for her division newspaper, and in class, while teaching drill sergeant candidates. There was no proof that she engaged in homosexual acts, or had done anything that could be interpreted as a homosexual advance toward female reservists. The respondents do not dispute the fact that she was a fine candidate for drill sergeant school, a capable soldier, and an excellent instructor.

The Board of Officers recommended that the petitioner be discharged from the Service as "unsuitable" because of her homosexuality. They further recommended that the discharge be "honorable".

The petitioner wrote a letter on October 22, 1976 to the Commander, Fifth Army, requesting that he reject the recommendations of the Investigating Board and retain Ms. benShalom in the reserves. On December 1, 1976, petitioner was notified by Fifth Army Headquarters that her plea was denied. She was honorably discharged from the Army effective December 1, 1976.

The respondents raise several challenges to the court's jurisdiction; none of the challenges have merit.

This action is brought under 28 U.S.C. Secs. 1331, 1361 and 1651. The Petition alleges violations of rights guaranteed under the First, Fifth and Ninth Amendments to the U. S. Constitution. The action, therefore, clearly "arises under the Constitution . . . of the United States" and is "brought against the United States, any agency thereof or any officer or employee thereof in his official capacity". Jurisdiction is properly alleged under Sec. 1331(a).

Assuming mandamus to be an appropriate remedy in this action, see infra, the court could properly issue a writ directed to the respondents pursuant to Secs. 1361 and 1651. Therefore, this action will not be dismissed for claimed jurisdictional deficiencies on the face of the Petition. See, Mindes v. Seaman, 453 F.2d 197, 199 (5 Cir. 1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

The next procedural issue is whether sovereign immunity bars suit, absent the consent of these respondents. The Petition alleges that the respondents, as officials of the United States, acted beyond their constitutional powers. The Petition also challenges as unconstitutional the Army regulation pursuant to which the respondents acted. No money damages are sought. Under these circumstances, sovereign immunity does not bar suit against the respondents. Carter v. Seamans, 411 F.2d 767, 770 (5 Cir. 1969), cert. den. 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121; Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

The government next questions whether mandamus is an appropriate remedy. Mandamus is an appropriate remedy if (1) the petitioner has a clear right to the relief sought, i. e. reinstatement in the Army Reserves; (2) there is a plainly defined and peremptory duty on the part of the respondents to do the act in question, i. e. reinstate the petitioner; (3) there is no other adequate remedy available. Panko v. Rodak, 606 F.2d 168, 169 (7 Cir. 1979); Holmes v. United States Board of Parole, 541 F.2d 1243, 1247 n. 5 (7 Cir. 1976); Carter v. Seamans, supra, at 773.

Mandamus is controlled by equitable principles. It is an extraordinary writ, but its issuance is largely a matter lying within the discretion of the court to which the Petition is addressed. Kerr v. U. S. District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); Holmes v. Board of Parole, supra; Carter v. Seamans, supra.

Juxtaposing the requirements for mandamus with the undisputed facts, I find that the petitioner lacks any other adequate available remedies. I also conclude that if petitioner's discharge is determined to be unconstitutional, the duty to reinstate her is clear. I finally conclude that even if the regulations could be read as placing some degree of discretion in the officials responsible for the decision to approve or disapprove the recommendation of the Board of Officers, the discretion may not be exercised in an unconstitutional manner. Matlovich v. Secretary of Air Force, 591 F.2d 852, 859 (D.C.Cir.1978); Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Hodges v. Callaway, 499 F.2d 417 (5 Cir. 1974); also see, the First Amendment discussion, infra. If a soldier's discharge is found to be violative of the Constitution, the implicit but clear non-discretionary duty of the respondents is to reinstate the soldier upon learning of the unconstitutional nature of the discharge. Any contrary conclusion would render the extensive procedural safeguards in the Army regulations meaningless, and would create a large loophole through which constitutional scrutiny of the discharge process would be rendered ineffective. The court finds mandamus to be an appropriate remedy available to the petitioner in this case.

Having concluded that the court has subject matter jurisdiction over the federal question alleged in the Petition, and having concluded that mandamus is an appropriate means to obtain the relief requested, the court will next consider whether this particular controversy is one that is justiciable; or one more properly reserved to the legislative and executive branches.

Most decisions as to the composition, training, equipping, and control of the Army are beyond judicial review. Ultimate responsibility for these decisions is vested in the legislative and executive branches. U. S. Constitution, Art. I, Sec. 8, Cl. 16; Gilligan v. Morgan, 413 U.S. 1, 10-11, 93 S.Ct. 2440, 2445-2446, 37 L.Ed.2d 407 (1972); Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953).

Strong policies compel the courts to give the military "the widest possible latitude" in the administration of personnel matters. Sanders v. United States, 594 F.2d 804, 813 (Ct.Cl.1979); Orloff v. Willoughby, supra; Mindes v. Seaman, supra.

The courts are extremely reluctant to interfere with the military's exercise of discretion over its internal affairs. This is particularly so when the military makes personnel changes, pursuant to its regulations, through its promotion or discharge processes. Dilley v. Alexander, 603 F.2d 914, 919-20 (D.C.Cir.1979); Pauls v. Secretary of Air Force, 457 F.2d 294 (1 Cir. 1972).

Restricted judicial review is not, however, the equivalent of no judicial review. Courts will review, without hesitation, cases in which it is alleged that the military violated the Constitution, applicable statutes, or its own regulations. Dilley v. Alexander, supra, at 920; Harmon v. Brucker, supra, 355 U.S. at 579, 78 S.Ct. at 433; Mindes v. Seaman, supra.

"It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations." Matlovich v. Secretary of Air Force, supra, at 859; Sanders v. United States, supra, at 814; Hodges v. Callaway, supra.

In her Petition, Ms. benShalom has alleged violations of the First, Fifth and Ninth Amendments to the Constitution. The court has...