Johnson v. Orr

• Decision Date: 14 March 1985
• Docket Number: Civ. No. S-84-1257 EJG.
• Citation: 617 F. Supp. 170
• Court: U.S. District Court — Eastern District of California
• Parties: Julise M. JOHNSON, Plaintiff, v. Verne ORR, et al., Defendants.

617 F. Supp. 170

Julise M. JOHNSON, Plaintiff, v. Verne ORR, et al., Defendants.

Civ. No. S-84-1257 EJG.

United States District Court, E.D. California.

March 14, 1985.

Donna Hitchens, American Civil Liberties Union, Roberta Achtenberg, Lesbian Rights Project, San Francisco, Cal., for plaintiff.

Talmadge R. Jones, Deputy Atty. Gen., Sacramento, Cal., for California Air National Guard.

Donald B. Ayer, U.S. Atty. by Gregory G. Hollows, Asst. U.S. Atty., Sacramento, Cal., for U.S. Air Force Reserve.

MEMORANDUM OF DECISION

EDWARD J. GARCIA, District Judge.

This action came on for hearing on November 7, 1984, on plaintiff's motion for a preliminary injunction. Plaintiff's motion seeks an order requiring the United States Air Force Reserve and the California Air National Guard to reinstate her as an officer pending the final disposition of this lawsuit. Plaintiff was discharged pursuant to Regulation 36-014, ¶ 8.a.(9) of the Air National Guard Regulations which mandates the separation of homosexuals as unfit for military service. Plaintiff was discovered by defendants to be a homosexual through a letter that she wrote to her commanding officer in which she so identified herself. Plaintiff challenges her discharge as an unconstitutional abridgment of her right to free speech under the First Amendment to the United States Constitution. Alternatively, plaintiff challenges her discharge from the California Air National Guard as violative of Article I, Section 8, Clause 16 of the United States Constitution which, plaintiff maintains, precludes federal defendants from mandating the involuntary discharge of an officer in the California Guard.

The parties do not dispute the facts leading up to the plaintiff's discharge. Plaintiff was commissioned as an officer in the California Air National Guard on September 2, 1981. On that same date she was "federally recognized" and appointed as an officer in the United States Air Force Reserve with assignment to the United States Air National Guard. She served until August 15, 1984 when she was honorably discharged at the rank of First Lieutenant. Plaintiff has documented that throughout her service in both the Air Force and the National Guard, she received excellent performance evaluations. Defendants do not dispute plaintiff's excellent service record, but instead base the discharge action on plaintiff's admitted homosexuality.

On June 24, 1983, plaintiff sent the following letter to her commanding officer:

Dear Col. Henderson

As you know, I have been a commissioned officer in the California Air National Guard since September 2, 1981. I have enjoyed my service in the Guard and, as my record reflects, I have served the Guard well in my position as administrative officer of the 234th CMBTCS. I am writing this letter as information for the record and to prevent any problems from arising in the future.

I am a lesbian and that will remain my political and sexual preference. However, my homosexuality does not in any way conflict with my ability to perform my military duties. I do not and will not advocate homosexuality to anyone while on military duty. I will continue to carry out my assignments and fulfill my commitments to the California Air National Guard.

Thank you for the opportunity to address this issue and "clear the air." Please retain this letter in my permanent file.

Sincerely,

Julise M. Johnson

On July 5, 1983, plaintiff was notified that an administrative discharge was being initiated pursuant to Regulation 36-014. An administrative board of officers (an efficiency board) was convened by the Air Force on December 20, 1983 to determine whether the plaintiff should be discharged. Following a hearing on the matter, the Board reached the following findings and recommendations:

The Board finds:

1) no conclusive proof of homosexual activity by the respondent; 2) that the respondent stated she was a homosexual. The Board determines that the respondent should not be retained in the Air National Guard of the United States nor as a reserve of the Air Force. The Board recommends that the respondent be awarded an honorable discharge. You will be given a copy of the transcript of the proceedings of this Board, less such documents previously furnished you in connection with these proceedings.

Plaintiff was honorably discharged on August 15, 1984. Plaintiff now moves for a preliminary injunction requiring the defendants to reinstate her.

The tenor for review in this case was ably described in ben Shalom v. Secretary of Army, 489 F.Supp. 964, 971 (E.D. Wisc.1980) as follows:

The courts are extremely reluctant to interfere with the military's exercise of direction 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. 579 at 579, 78 S.Ct. 433 at 433 2 L.Ed.2d 503 (1958); Mindes v. Seaman, supra 453 F.2d 197, 199 (5th Cir.1971).

"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 859 591 F.2d 852, 859 (D.C.Cir.1978); Sanders v. United States, supra, at 814 594 F.2d 804, 813 (Ct.Cl.1979); Hodges v. Callaway, supra 499 F.2d 417 (5th Cir. 1974).

It is in that context that this court proceeds to review plaintiff's discharge for the purpose of the instant request for a preliminary injunction.

In order for plaintiff to prevail on her motion she must meet the requirements established by the Ninth Circuit for issuance of a preliminary injunction. "The moving party meets its burden by demonstrating either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions have been raised and the balance of hardships tips sharply in its favor." Lopez v. Heckler, 725 F.2d 1489, 1498 (9th Cir.1984); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 753 (9th Cir. 1982); Beltrans v. Meyers, 677 F.2d 1317, 1320 (9th Cir.1982); Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). Plaintiff fails to meet her burden under either test.

Plaintiff has not shown a probability of success on the merits. Rather, the free speech issue raised in this case appears to be specious. Plaintiff contends that her involuntary discharge was solely the result of the fact that she informed her group commander that she considered herself to be a lesbian. Because there was never any allegation that plaintiff engaged in homosexual activity or that her performance as an officer has ever been inadequate, plaintiff contends that her discharge was based on her assertion of a personal identity. Accordingly, plaintiff characterizes her termination as a violation of her rights to free speech and freedom of association as guaranteed by the First Amendment of the Constitution of the United States. However, this court views plaintiff's self-assertion of her homosexuality as nothing more than an admission of a fact, and such fact may serve as a lawful basis for discharge, see, Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), and Watkins v. U.S. Army, 721 F.2d 687 (9th Cir.1983).¹ The Ninth Circuit in Beller upheld the Navy's right to discharge three individuals on the basis of their admissions to homosexual activity. In Watkins, the Ninth Circuit rejected the assertion of an estoppel theory (based on length of exemplary performance and actual knowledge by the Army of the plaintiff's sexual preference) to bar the Army's application of regulations that prohibit reenlistment of homosexuals. The plaintiff in Watkins was not allowed to reenlist solely because he was an admitted homosexual. Although the Watkins court did not have before it the specific issue of the regulations' constitutionality, the court noted that such issue appeared to have been resolved in Beller v. Middendorf, supra.²

Plaintiff's First Amendment argument draws a distinction between homosexual activity and statements of homosexual preference. She refers to the findings of the Efficiency Board which specify that there was no conclusive proof of homosexual activity and, instead, relied upon plaintiff's statement that she was a homosexual. Plaintiff then turns to the pertinent language of Regulation 36-014 which was used to support her discharge. The relevant subsections are 8.a(9)(a) and (b) which provide as follows:

(9) Homosexuality.

(a) Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work under close conditions affording minimal privacy; to recruit members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security.

(b) The basis of separation may include preservice, prior service, or current service conduct or statements. A member will be separated if one or more of the following

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