Cammermeyer v. Aspin

• Decision Date: 01 June 1994
• Docket Number: No. C92-942Z.,C92-942Z.
• Citation: 850 F. Supp. 910
• Parties: Margarethe CAMMERMEYER, Plaintiff, v. Les ASPIN, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

850 F. Supp. 910

Margarethe CAMMERMEYER, Plaintiff, v. Les ASPIN, Secretary of Defense,¹ et al., Defendants.

No. C92-942Z.

United States District Court, W.D. Washington, Northern Division.

June 1, 1994.

Jeffrey I. Tilden, Michael H. Himes, Perkins Coie, Seattle WA, Mary Newcombe, Hedges & Caldwell, Los Angeles, CA, for plaintiff.

David M. Glass, U.S. Dept. of Justice, Civil Div., Federal Programs Branch, Washington, DC, for defendants.

ORDER

ZILLY, District Judge.

Margarethe Cammermeyer brings this declaratory judgment action against the Government claiming that her discharge from military service under Army Regulation 135-175, based solely on her admission that she is a lesbian, violated her rights to equal protection of the laws guaranteed under the Fifth Amendment to the United States Constitution. She also claims her discharge violated her right to privacy under the First, Fourth, Fifth and Ninth Amendments to the Constitution, her substantive due process rights under the Fifth Amendment and her right to freedom of speech under the First Amendment. Cammermeyer further claims that Army Regulation 135-175 is an invalid exercise of executive power violative of the constitutional separation of powers, and that the regulation violates principles of federalism.

The parties have now filed cross-motions for summary judgment. Plaintiff moves for summary judgment on her equal protection claim (docket no. 50). Defendants move for judgment on the pleadings or, in the alternative, summary judgment on all of plaintiff's claims (docket no. 59). The Court heard oral argument on these cross-motions on April 20, 1994, and took the matter under advisement. The Court has reviewed all of the materials submitted by the parties and now GRANTS plaintiff's motion for summary judgment as to her equal protection and substantive due process claims under the Fifth Amendment, and GRANTS defendants' motion for summary judgment as to the remainder of plaintiff's claims.

I. BACKGROUND

Margarethe Cammermeyer is a former Colonel of the Washington State National Guard. She entered the Army Student Nurse Corps in 1961, and with the exception of a four year period when she was ineligible for service,² Cammermeyer served in the Army until 1986. In that year, Cammermeyer transferred to the Washington State National Guard where she continued to serve until she was discharged on June 11, 1992.

Cammermeyer's expertise as an Army Nurse is remarkable. She has earned bachelor's, master's and doctorate degrees in Nursing. She was a member of the Clinical Faculty of the University of San Francisco School of Nursing where she co-authored four research articles published in the Journal of Military Medicine. Cammermeyer Decl. at ¶¶ 3, 8, 12, 19. In addition, she has received numerous awards and distinctions, including the Bronze Star for distinguished service in Vietnam.³ Id. at ¶ 6. She volunteered and served in Vietnam for fifteen months with distinction. Id. at ¶¶ 5-6. Cammermeyer has served in numerous other capacities in the Army and Washington State National Guard, including medical-surgical supervisor and Assistant Chief Nurse of the 50th General Hospital in Fort Lawton, Washington, Chief Nurse of the 352nd Evacuation Hospital in Oakland, California, and State Chief Nurse and consultant to the State Chief Surgeon at Camp Murray, Washington. Id. at ¶¶ 8, 11, 15.

In April, 1989, Cammermeyer applied for admission to the Army War College to receive training she considered essential to her goal of becoming Chief Nurse of the National Guard Bureau ("NGB"). Id. at ¶ 16. During a top secret security check required for admission to the Army War College, Cammermeyer was asked about her sexual orientation and answered that she is a lesbian.⁴ Notwithstanding this admission, Cammermeyer was told by the Washington State National Guard that she could continue to serve as Chief Nurse, and that the Guard would not pursue her discharge "unless forced to do so" by the Department of the Army. Id. at ¶ 18. Alternatively, she was told she could resign. Cammermeyer chose to continue to serve. Six months later, pursuant to service-wide federal regulations barring homosexuals from the military, the United States Army commenced proceedings to withdraw Cammermeyer's "federal recognition" and thus render her ineligible to serve in the Washington State National Guard or any other branch of the military.⁵

Cammermeyer continued to serve in her position as Chief Nurse for more than three years after she admitted that she is a lesbian. During this period, a military retention board was convened to review whether Cammermeyer's federal recognition should be withdrawn because of her lesbian status. On July 14, 1991, after a two-day hearing, the Board recommended withdrawal of Cammermeyer's federal recognition. In presiding over the Board, former Chief Nurse, NGB, Colonel Patsy Thompson openly regretted her "sad duty" of reading the Board's adverse recommendation to "one of the great Americans." Tr. of Hearing before Federal Recognition Board, Vol. 2, at 131-33. Colonel Thompson stated that Cammermeyer "has consistently provided superb leadership and has many outstanding accomplishments to her credit." Id. at 132.

On June 11, 1992, Cammermeyer was discharged based upon the Board's recommendation and received an honorable discharge.⁶ Cammermeyer's final evaluation, dated July 31, 1992, describing her contributions to the Army and noting her discharge, concluded that "this officer has the potential to serve as Chief Nurse, NGB; and to represent her profession in major research projects in military medicine anywhere in the world." Cammermeyer Decl., Exhibit D, Officer Evaluation Report (OER) dated July 31, 1992. Prior to her discharge, Washington Governor Booth Gardner, Commander-in-Chief of the Washington State National Guard, wrote a letter to then Secretary of Defense Richard Cheney requesting that Cammermeyer be retained. Cammermeyer Decl. Exhibit H. That letter states, in part, that "if Colonel Cammermeyer's discharge becomes final, this would be both a significant loss to the State of Washington and a senseless end to the career of a distinguished, long-time member of the armed services." Id.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate if the record shows "`that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Williams v. I.B. Fischer Nev., 999 F.2d 445, 447 (9th Cir.1993) (quoting Fed. R.Civ.P. 56(c)). In determining whether there are any genuine issues of material fact for trial, the court must view all of the evidence in the light most favorable to the nonmoving party. Abuan v. General Electric Co., 3 F.3d 329, 332 (9th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1064, 127 L.Ed.2d 383 (1994). This is true even when the court is presented with cross-motions for summary judgment. High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). "Summary judgment must be entered `against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Abuan, 3 F.3d at 331 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). Once a summary judgment motion is made and properly supported, the adverse party may not rest on the mere allegations of his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R.Civ.P. 56(e). If there is any need to weigh the evidence at issue, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

B. Equal Protection Challenge

Both parties move for summary judgment on plaintiff's claim that her discharge from the Washington State National Guard violated her equal protection rights under the Fifth Amendment to the United States Constitution.

1. Equal Protection Standard

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)). While the Fifth Amendment does not contain an equal protection clause, the due process clause of the Fifth Amendment has an equal protection component that applies to the federal government. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

There are three standards of review applicable to equal protection challenges to governmental regulations: strict scrutiny, heightened scrutiny, and rational basis review. High Tech Gays, 895 F.2d at 571 (citing Cleburne, 473 U.S. at 440-41, 105 S.Ct. at 3254-55, 87 L.Ed.2d at 320-21). Legislative classifications based on race, alienage, or national origin require strict scrutiny. The classification will be upheld only if it is "suitably tailored to serve a compelling state interest." Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320. Strict scrutiny is also required when laws impinge upon constitutionally protected "fundamental" rights. Id. Legislative classifications based on gender call for a heightened standard of review; the classification survives only if it is "substantially related to a sufficiently important governmental interest." Id. at 441, 105 S.Ct. at 3255, 87 L.Ed.2d at 321. Certain restrictions beyond a person's control, such as illegitimacy, are also subject to heightened review. These restrictions "will survive equal protection scrutiny to the extent they are substantially related to a legitimate...