Cook v. Rumsfeld
| Decision Date | 24 April 2006 |
| Docket Number | Civil Action No. 04-12546-GAO. |
| Parties | Thomas COOK, Megan Dresch, Laura Galaburda, Jack Glover, David Hall, Monica Hill, Jenny Lynn Kopfstein, Jennifer McGinn, Justin Peacock, James E. Pietrangelo II, Derek Sparks, Stacy Vasquez, Plaintiffs, v. Donald H. RUMSFELD, Secretary of Defense, Michael Chertoff, Secretary of Homeland Security, United States of America, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, District Judge.
The plaintiffs are twelve former members of the armed forces of the United States who assert that they were forced to leave the military service involuntarily by reason of the defendants' enforcement of 10 U.S.C. § 654 and regulations adopted pursuant to it. Section 654 and its implementing regulations express what has become known as the "Don't Ask, Don't Tell" policy of the armed forces, mandating the exclusion from service of persons who either have engaged or attempted to engage in homosexual acts or have effectively identified themselves as homosexual. Claiming that the statute and regulations are unconstitutional, the plaintiffs seek a declaratory judgment to that effect and an injunction against the further enforcement of the policy. They also seek an order requiring their readmission into their respective former service branches, conditioned only on a demonstration of continued eligibility under criteria exclusive of the "Don't Ask, Don't Tell" policy.
The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P 12(b)(6). Dismissal of a complaint under Rule 12(b)(6) should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" made in the complaint. Educadores Puerotorriquenos en Accian v. Hernandez, 367 F.3d 61, 66 (1st Cir.2004) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). In making this determination, a court "assume[s] the truth of all well-pleaded facts and indulge[s] all reasonable inferences that fit the plaintiff's stated theory of liability." Redondo—Borges v. U.S. Dep't of Hous. and Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005) (quoting In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003)). Those facts may be derived from the complaint, whatever documents are either annexed to it or fairly incorporated into it, and any relevant matters that are susceptible of judicial notice. Id. However, a court need not credit "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Id. (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)). In short, dismissal of a complaint for failure to state a claim under Rule 12(b)(6) is appropriate where there are dispositive issues of law that bar the plaintiffs' claims even if they are able to prove the factual assertions made in the complaint.
Prior to January 1993, it had been the long-standing policy of the Department of Defense to discharge (or "separate," to use the term of art) members of the armed services who were homosexuals. See S.Rep. No. 103-112, at 265-67 (1993). Over time the policy had varied in its formulation and administration, but by 1982 it had been codified in Department of Defense Directives 1332.14 (applicable to enlisted personnel) and 1332.30 (applicable to officers). See S.Rep. No. 103-112, at 266-67 (1993). These Directives dealt broadly with the grounds and procedures for separating personnel from service; the 1982 iteration of the Directives explicitly included homosexual acts, or a "propensity" toward them, as a ground for separation.
Shortly after taking office in January 1993, President Clinton directed the Secretary of Defense to review the armed forces' policy regarding the service of homosexuals and to submit a report of his review by July 15, 1993. See Memorandum on Ending Discrimination in the Armed Forces, 1 Pub. Papers 23 (Jan. 29, 1993); see also S.Rep. No. 103-112, at 267-68 (1993). In the interim, the existing policy was to be enforced, with two qualifications. First, new recruits were not to be asked about homosexuality during the enlistment process (the "don't ask" feature). Second, instead of being fully separated, service members who were homosexual would simply be removed from active duty and placed in non-pay status in the standby reserve, so long as they had not engaged in homosexual acts. See S.Rep. No. 103-112, at 267-68 (1993). On July 19, 1993, after completing the review requested by the President, the Secretary of Defense issued a policy memorandum which effectively extended the interim policy for a few more months. See Remarks Announcing the New Policy on Homosexuals in the Military, 1 Pub. Papers 1109 (July 19, 1993); see also S.Rep. No. 103-112, at 289-92 (1993).
Congress also undertook a review of the existing policy in early 1993. The Armed Services Committees of both the Senate and the House of Representatives held hearings on the matter through the spring and summer of that year. See S. Rep. No 103-112, at 268-70 (1993); H.R.Rep. No. 103-200, at 286-90 (1993); see also Thomasson v. Perry, 80 F.3d 915, 921-23 (4th Cir.1996) (). In particular, the Senate Committee received testimony from present and former military commanders, including the Chairman of the Joint Chiefs of Staff, the commanding officers of each of the several military branches, and other present and former military officers, as well as from other interested persons, including academics in the fields of law and the social sciences. See S. Rep. No 103-112, at 268-70 (1993).
The result of these reviews was Congress' enactment of the policy now at issue. See National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, § 571, 107 Stat. 1547, 1670-73, codified at 10 U.S.C. § 654. Subsection (b) of § 654 states the policy as adopted by Congress:
A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:
(1) that the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that
(A) such conduct is a departure from the member's usual and customary behavior;
(B) such conduct, under all the circumstances, is unlikely to recur;
(C) such conduct was not accomplished by the use of force, coercion, or intimidation;
(D) under the particular circumstances of the case the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
(E) the member does not have a propensity or intent to engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with the procedures set forth in the regulations, 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.
(3) That the member has married or attempted to marry a person known to be of the same biological sex.
In due course, the Department of Defense issued a revised Department of Defense Directive 1332.14, which implements the policy for enlisted personnel, and Department of Defense Instruction 1332.40, which implements the policy for officers.1
In sum, the policy mandates the separation of a member of the armed services, subject to established administrative procedures, if the member has done one (or more) of three things: (i) engaged or attempted to engage in a homosexual act or acts (subject to some qualifications that address exceptional or aberrant behavior), (ii) stated that he or she is homosexual or bisexual (again, subject to some qualification), or (iii) married or attempted to marry a person of the same sex. See 10 U.S.C. § 654(b). Proponents of the policy have described these as "conduct-based" standards, rather than "status-based" ones.
Congress included several "findings" in the statutory enactment of the policy. 10 U.S.C. § 654(a). Although the word "findings" often connotes statements that resolve disputed questions of fact, it may be more appropriate to regard the congressional findings in § 654(a) as a mix of propositions of constitutional law,2 observations about the requirements of military service,3 and policy judgments.4
The plaintiffs all allege that they were separated from military service by application of the policy embodied in § 654 and its implementing regulations, although the precise factual circumstances of separation are particular to each plaintiff. They further allege that their exclusion from military service violates their constitutional rights. They seek a declaration that the policy is unconstitutional and an injunction against its enforcement.
Although the complaint alleges that § 654 is unconstitutional both on its face— that is, it would be invalid in any conceivable application, see Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct....
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