Holmes v. California Army Nat. Guard

• Decision Date: 29 March 1996
• Docket Number: No. C 95-688 SBA.,C 95-688 SBA.
• Citation: 920 F. Supp. 1510
• Parties: First Lieutenant Andrew HOLMES, Plaintiff, v. CALIFORNIA ARMY NATIONAL GUARD; Major Tandy K. Bozeman, in his official capacity; Governor Pete Wilson, in his official capacity; United States Army National Guard; United States of America; and William J. Perry, Secretary of Defense, in his official capacity, Defendants.
• Court: U.S. District Court — Northern District of California

920 F. Supp. 1510

First Lieutenant Andrew HOLMES, Plaintiff, v. CALIFORNIA ARMY NATIONAL GUARD; Major Tandy K. Bozeman, in his official capacity; Governor Pete Wilson, in his official capacity; United States Army National Guard; United States of America; and William J. Perry, Secretary of Defense, in his official capacity, Defendants.

No. C 95-688 SBA.

United States District Court, N.D. California.

March 29, 1996.

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Todd E. Thompson,^* L. Jay Kuo,^* Howard, Rice, Nemerovski, Canady, Falk & Rabin, San Francisco, CA, Paul Freud Wotman,^* Law Offices of Paul Wotman, San Francisco, CA, for plaintiff.

Frank W. Hunger, Assistant Attorney General, Mark T. Quinlavin, Special Asst. United States Attorney,^* U.S. Dept. of Justice, Washington D.C., for defendants United States Army National Guard, United States of America, William J. Perry, Secretary of Defense.

Daniel E. Lungren, Attorney General of the State of California, Andrew F. Loomis, Deputy Attorney General,^* Sacramento, CA, for defendants California Army National Guard, Major Tandy K. Bozeman, Governor Pete Wilson.

ORDER

ARMSTRONG, District Judge.

OVERVIEW

Plaintiff, First Lieutenant Andrew Holmes ("plaintiff' or "Lt. Holmes") brings this action to challenge his discharge from the California Army National Guard ("CANG") and the United States Army National Guard ("USANG"). Lt. Holmes was expelled from service pursuant to the military's current policy governing homosexuals after plaintiff acknowledged his homosexuality to his commanding officer. Plaintiff has named two sets of defendants; the USANG, the United States of America, William J. Perry, and Secretary of Defense (collectively referred to as the "Federal defendants"), and the CANG, Major Tandy Bozeman, and Governor Pete Wilson (collectively referred to as the "California defendants"). His amended complaint alleges claims based on state and federal law.

Presently before the Court are: (1) the California defendants' Motion to Dismiss First Amended Complaint Pursuant to Rules 12(b)(6) and 12(e); (2) the Federal defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment; (3) and plaintiff's Cross-motion for Summary Adjudication as to Federal Defendants and Motion for Summary Adjudication as to California Defendants. Having read the papers filed in connection with these motions and considered the arguments of counsel, the Court GRANTS IN PART AND DENIES IN PART each of the parties' motions.

BACKGROUND

I. Military Policy Regarding Gays

The United States Military has a long history of precluding homosexuals from serving in this country's armed forces. It was not until 1981, however, that the Department of Defense formalized its policy with the implementation of revised DOD Directive 1332.14 (1981) which mandated the discharge of all known homosexuals from military service. Through this Directive, the military officially stated for the first time that "homosexuality is incompatible with military service." DOD Directive 1332.14 (1981).

On July 19, 1993, President Clinton announced a new compromise policy regarding homosexuals in the military.¹ The principal elements of this new policy were enacted by Congress in the National Defense Authorization Act of Fiscal Year 1994 ("the Act"), codified at 10 U.S.C. § 654 (Supp.1994). The Act was signed by President Clinton on November 30, 1993. On December 21, 1993, the Department of Defense ("DOD") promulgated regulations implementing the new policy. These regulations were later modified and became effective on February 28, 1994. See DOD Directive 1332.14 (1994) (Enlisted Administrative Separations); DOD Directive 1332.30 (1994) (Separation of Regular Commissioned Officers); DOD Directive 1304.26 (1994) (Qualification Standards for Enlistment, Appointment and Induction). The Act and the companion DOD Directives are colloquially referred to as the "Don't Ask, Don't Tell" policy.

The Act contains six subsections, with the main "policy" provisions set forth in subsection (b). Subsection (b) reads as follows:

(b) Policy. — 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 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 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.

10 U.S.C. § 654(b) (Supp.1994) (emphasis added).² The primary justification for these measures is that "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 standard of morale, good order and discipline, and unit cohesion that are the essence of military capability." 10 U.S.C. § 654(a)(15) (Supp.1994).

The DOD's implementing Directives 1332.14 and 1332.30 are comparable to the Act.³ These regulations provide, in relevant part, as follows:

Homosexual conduct is grounds for separation from the Military Services.... Homosexual conduct includes homosexual acts, or a statement by a member that demonstrates a propensity or intent to engage in homosexual acts.... A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter, and it is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in section C.1.

See DOD Directive 1332.30 at 2-1 (emphasis added); DOD Directive 1332.14 at 1-9.

Under the new policy, the military no longer actively initiates investigations of service members to determine whether they are homosexual, DOD Directive 1332.30 at 8-1, and prospective new recruits are no longer questioned about their sexual orientation, DOD Directive 1304.26 at 1-5. However, a service member may not voluntarily acknowledge that he or she is gay without significant consequences.

If a service member states that he or she is homosexual, that statement alone creates a "rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." DOD Directive 1332.14 at 1-10; Id. 1332.30 at 2-2 (same language applied to officers). The service member will be discharged unless he or she can prove by a preponderance of the evidence that "he or she does not engage in, have a propensity to engage in or intend to engage in homosexual acts." DOD Directive 1332.14 at 1-10, 4-3; Id. 1332.30 at 2-2, 2-3.

II. Facts and Proceedings

A. Lt. Holmes' Role in the CANG and USANG

The material facts of this case are not in dispute. Lt. Holmes was an officer in the CANG and the USANG. He enrolled in the CANG in 1986. (Holmes Decl. ¶ 2.) In March 1989, he was sworn in as an officer of the CANG, and thereafter, as an officer in the USANG. (Id.) During his tenure with the CANG, Lt. Holmes was promoted to First Lieutenant and received the Army Achievement Medal, the Army Reserve Components Achievement Medal and the National Defense Service Ribbon while deployed to Germany in support of Operation Desert Shield and Operation Desert Storm. (Id. ¶ 3, 4.) His performance ratings have been uniformly exemplary, and his unit has been characterized as a "shining example of cohesion." (Id. ¶ 4.)

On June 3, 1993, Lt. Holmes sent a memorandum to his CANG commanding officer which stated that, "As a matter of conscience, honesty and pride, I am compelled to inform you that I am gay." On that basis, Lt. Holmes' commanding officer initiated a request that Lt. Holmes' federal recognition as an officer be withdrawn. (Id. ¶¶ 5-6.)

On May 21, 1994, discharge proceedings were commenced against Lt. Holmes. The Federal Recognition Board ("the Board") considered his case under the new policy purporting to exclude gays from the military based on their conduct. (See Administrative Record.) The Board found that Lt. Holmes' admission that he is gay created a rebuttable presumption that he had engaged in or was likely to engage in homosexual acts, and that Lt. Holmes had failed to rebut that presumption. Despite Lt. Holmes' outstanding record of service, the Board recommended the withdrawal of his federal recognition. Based solely upon the loss of federal recognition, the CANG discharged Lt. Holmes.

B. The Instant Litigation

On February 28, 1995, Lt. Holmes commenced the instant action against the Federal and California defendants. Lt. Holmes...