Dahl v. Secretary of US Navy, Civ. No. S-89-0351 MLS.

• Decision Date: 30 August 1993
• Docket Number: Civ. No. S-89-0351 MLS.
• Citation: 830 F. Supp. 1319
• Court: U.S. District Court — Eastern District of California
• Parties: Mel DAHL, Plaintiff, v. SECRETARY OF The UNITED STATES NAVY, et al., Defendants.

830 F. Supp. 1319

Mel DAHL, Plaintiff, v. SECRETARY OF The UNITED STATES NAVY, et al., Defendants.

Civ. No. S-89-0351 MLS.

United States District Court, E.D. California.

August 30, 1993.

Mel Dahl, in pro per.

Anthony J. Coppolino, U.S. Dept. of Justice, Civil Div., Washington, DC, for defendants.

MEMORANDUM OF DECISION AND ORDER

MILTON L. SCHWARTZ, District Judge.

This case is before the court on plaintiff's and defendants' cross-motions for summary judgment on plaintiff's First and Fifth Amendment challenges to his discharge from the United States Navy.

I. FACTUAL AND PROCEDURAL BACKGROUND.

The undisputed facts relevant to these summary judgment motions are as follows. Plaintiff enlisted in the Navy on October 14, 1980. During an official interview on March 10, 1981, plaintiff disclosed in response to questioning that he is a homosexual, but denied engaging in any homosexual conduct subsequent to enlisting in the Navy. Shortly thereafter, defendants advised plaintiff that he was being considered for discharge pursuant to Secretary of the Navy Instruction ("SECNAVINST") 1900.9D¹ and convened an administrative discharge board for that purpose. Despite extensive evidence of plaintiff's excellent service record and affidavits of support from plaintiff's shipmates and superiors, on December 16, 1981 the administrative board recommended that plaintiff be discharged, based on its finding that he "is a stated homosexual." Pfeiffer Decl., Ex. 8. Plaintiff was honorably discharged from the Navy on January 13, 1982. Plaintiff then appealed to the Board for Correction of Naval Records, which upheld his discharge on March 19, 1986.

Plaintiff filed the instant action on March 13, 1989 challenging his discharge on grounds that it violated the First, Fourth, Fifth and Fourteenth Amendments and Title X of the United States Code. Among other things, plaintiff seeks reinstatement, an order prohibiting defendants from taking any further action against him pursuant to the homosexual exclusion policy, a declaration that the policy is unconstitutional, and costs of suit. On July 5, 1990, the court granted defendants' motion to dismiss the complaint in its entirety. Plaintiff appealed, and the Ninth Circuit reversed and remanded in light of Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). At a pretrial scheduling conference, plaintiff abandoned all but his Fifth Amendment equal protection claim² and First Amendment free speech claim. Plaintiff now moves for summary judgment on both of his claims and defendants move for summary judgment solely on plaintiff's equal protection claim.

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT.

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact³ and that the moving party is entitled to judgment as a matter of law." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), quoting Adv.Comm. Note on 1963 Amends. to Fed.R.Civ.P. 56(e).

In summary judgment practice, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), quoting Fed.R.Civ.P. 56(c). However, a summary judgment motion "may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file," without any affidavits, if the nonmoving party will bear the burden of proof at trial on a dispositive issue. Id. at 324, 106 S.Ct. at 2553.

If the moving party meets its initial responsibility, the burden shifts to the nonmoving party to establish the existence of a genuine issue of material fact. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 585-86, 106 S.Ct. at 1355-56. The nonmoving party may not simply rely upon its pleading denials, but must tender evidence of specific facts in the form of affidavits or admissible discovery material, or both, in support of its contention that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmoving party's evidence must be believed and all reasonable inferences that can be drawn from that evidence must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," otherwise there is no genuine issue for trial. Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355.

On the other hand, the nonmoving party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). In other words, the nonmoving party's evidence is sufficient to withstand summary judgment if a reasonable trier of fact could return a verdict in favor of the nonmoving party based on that evidence. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987). But if the nonmoving party fails to make a showing sufficient to establish an essential element of his case, and on which he will bear the burden of proof at trial, summary judgment may appropriately be granted. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2553.

III. ANALYSIS.

A. Equal Protection Claim.

Both parties move for summary judgment on plaintiff's claim that the homosexual exclusion policy violates his Fifth Amendment right to equal protection because it is based on prejudice and bias against homosexuals. Fifth Amendment equal protection claims are treated the same as equal protection claims brought under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). The threshold question in equal protection analysis is whether the policy at issue is discriminatory. See Watkins v. United States Army, 847 F.2d 1329, 1336 (9th Cir.1988), op'n vacated on other gds., 875 F.2d 699 (9th Cir. 1989). Defendants do not dispute that the homosexual exclusion policy discriminates against persons on the basis of their sexual orientation. See id. at 1337 (concluding that the Army's similar homosexual exclusion policy was discriminatory on its face).

1. Standard of review.

Given that defendants' policy is discriminatory, the court's next task is to ascertain what standard of equal protection review should apply. See id. at 1345.

a. Applicability of strict scrutiny.

Plaintiff argues that the homosexual exclusion policy should be subject to strict scrutiny, while defendants contend that the policy is subject only to rational basis review. If strict scrutiny is applied, the policy will be struck down unless the classification drawn by the policy is "suitably tailored to serve a compelling government interest." See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). If, on the other hand, the rational basis standard is applied, the policy is presumed constitutional and will be upheld so long as the classification drawn is rationally related to a legitimate government interest. See id.

Strict scrutiny is applied when a legislative classification rests on an inherently suspect characteristic, such as race, religion or alienage, or "trammels fundamental personal rights." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). In High Tech Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563 (9th Cir.1990), the Ninth Circuit squarely addressed the question whether laws and policies classifying individuals based on their sexual orientation are subject to strict scrutiny.

The High Tech Gays court first analyzed whether homosexuality is an inherently suspect characteristic (i.e. whether homosexuals are a "suspect class"). The court stated that to be considered a suspect class, "homosexuals must 1) have suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and 3) show that they are a minority or politically powerless." Id. at 573. Although the court agreed that homosexuals had suffered a history of discrimination, it did not agree that they satisfied the other two criteria. Id. Rather, it concluded that "homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race ... or alienage." Id. Moreover, the court said, "homosexuals are not without political power; they have the ability to and do `attract the attention of lawmakers,' as evidenced by several state statutes and local ordinances."⁴ Id. at 574, quoting Cleburne, 473 U.S. at 445, 105 S.Ct. at 3257.

Second, relying on Bowers v. Hardwick, 478 U.S. 186, 194-196, 106 S.Ct. 2841, 2846-47, 92 L.Ed.2d 140 (1986), the court rejected the argument that homosexual activity is a fundamental right. High Tech Gays, 895 F.2d at 571-74; see also Watki...