Richenberg v. Perry

• Decision Date: 11 December 1995
• Docket Number: 8:CV95-00393.
• Parties: Richard F. RICHENBERG, Jr., Plaintiff, v. William J. PERRY, Secretary of Defense, in his official capacity; Sheila Widnall, Secretary of the Department of the Air Force, in her official capacity, Defendants.
• Court: U.S. District Court — District of Nebraska

909 F. Supp. 1303

Richard F. RICHENBERG, Jr., Plaintiff, v. William J. PERRY, Secretary of Defense, in his official capacity; Sheila Widnall, Secretary of the Department of the Air Force, in her official capacity, Defendants.

8:CV95-00393.

United States District Court, D. Nebraska.

December 11, 1995.

COPYRIGHT MATERIAL OMITTED

Susan A. Koenig-Cramer, Susan Koenig-Cramer, Omaha, NE, Thomas C. Kayser, Deborah J. Palmer, Charles O. Lentz, Randall Tietjen, Jana Kramer, Robins, Kaplan Law Firm, Minneapolis, MN, Lori L. Graesser, Lori Graesser, Omaha, NE, for plaintiff.

Paul D. Boeshart, Assistant United States Attorney, Lincoln, NE, Kevin M. Simpson, David J. Anderson, Vincent M. Garvey, U.S. Department of Justice, Civil Division, Washington, DC, Steven J. Pecinovsky, Lt. Col., United States Air Force, General Litigation Division, Arlington, VA, for defendants.

Steven J. Lefler, Lefler, Franklin Law Firm, Omaha, NE, for amicus curiae.

MEMORANDUM OPINION

STROM, Senior District Judge.

This matter is before the Court on the parties' cross motions for summary judgment (Filing Nos. 31 and 32). Plaintiff Richard F. Richenberg, Jr., is a Captain in the United States Air Force stationed at Offutt Air Force Base ("Offutt AFB") near Omaha, Nebraska. Defendant William J. Perry is the Secretary of the Defense and defendant Sheila Widnall is the Secretary of the Department of the Air Force. Plaintiff filed this action requesting permanent injunctive and declaratory relief prohibiting defendants from discharging him from the Air Force as a result of his statement that he is a homosexual. Plaintiff challenges the government's policy regarding homosexuals in the military primarily on the grounds that the policy on its face and as applied to him, violates his First Amendment freedom of speech and denies him equal protection of the laws guaranteed by the Fifth and Fourteenth Amendments. Plaintiff also alleges that the Air Force discharge proceedings violated the Administrative Procedures Act. Finally, plaintiff alleges that the policy is unconstitutional as a Bill of Attainder. The Court heard oral arguments on this matter on November 6, 1995. After careful consideration of the motions, the briefs and the applicable law, the Court makes the following findings and conclusions.

THE POLICY

On January 29, 1993, President Clinton directed Les Aspin, Secretary of Defense at the time, to reevaluate the Department of Defense's ("DOD") policy regarding homosexuals in the military. Secretary Aspin commissioned two independent studies to evaluate the DOD's existing policy and to consider new policy options. Between March and July, 1993, the Senate and House Armed Services Committees held extensive public hearings on the matter. Pursuant to President Clinton's order, Secretary Aspin issued a new directive regarding homosexuals in the military on July 19, 1993. The Senate and House Armed Services Committees conducted further hearings and recommended that Congress enact the policy as contained in the July 19 directive. In November 1993, Congress enacted the policy as § 571 of the National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, 107 Stat. 1670-73 (codified at 10 U.S.C. § 654). President Clinton signed the policy into law on November 30, 1993.

In enacting the "Policy concerning homosexuality in the armed forces" Congress made extensive findings, including the finding that:

(8) Military life is fundamentally different from civilian life in that—

(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

10 U.S.C. § 654(a). Congress also found that:

(15) 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 standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

Id. The policy provides that a service member shall be separated from the armed forces if, pursuant to the regulations, one or more of the following is found:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or 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).

On December 21, 1993, the DOD issued Directive 1332.30, titled "Separation of Regular Commissioned Officers" to implement the policy. The Directive defines "homosexual conduct" to include "a homosexual act, a statement by the Service member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage." Directive 1332.30 at 1-1. The Directive further provides:

C. HOMOSEXUAL CONDUCT

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 is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in section C.1.

Id. at 2-1. Section C.1. reiterates the three grounds for separation outlined by 10 U.S.C. § 654. Regarding the "statement" grounds, however, the Directive elaborates that:

A statement by an officer that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the officer engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The officer shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he or she does not engage in, attempt to engage in, have a propensity to engage in or intend to engage in homosexual acts. Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts.

Directive 1332.30 at 2-2. The Directive further provides that in determining whether an officer has successfully rebutted the presumption, the military may consider: (1) whether the officer has engaged in homosexual acts; (2) the officer's credibility; (3) testimony from others regarding the officer's past conduct, character and credibility; (4) the nature and circumstances of the of the officer's statement; and (5) any other evidence relevant to whether the officer is likely to engage in homosexual acts. Id. In conformity with Directive 1332.30, the Department of the Air Force amended its regulation AFR 36-2 regarding officer administrative discharge procedures. The pertinent portion of AFR 36-2 repeats much of the language contained in DOD Directive 1332.30, and together, shall be referred to as the "regulations." Section 654 and the regulations constitute the "policy" under which defendants seek to discharge plaintiff.

FACTS

Since entering the Air Force in April 1985, plaintiff has served with distinction as an Electronic Warfare Officer ("EWO"). After serving a three year tour of duty at Eielson Air Force Base in Alaska, plaintiff was transferred to Offutt Air Force Base in 1989. After serving in the Gulf War, plaintiff returned to Offutt AFB and was subsequently selected for the Foreign Military Sales ("FMS") program to train and support personnel in Saudi Arabia. Prior to going to Saudi Arabia, plaintiff was sent to Texas for FMS training. Towards the end of his training in Texas in April, 1993, plaintiff requested that his assignment to Saudi Arabia be canceled and that he be separated from the Air Force. This request was denied. In May, 1993, plaintiff faxed a letter to Lieutenant Colonel David G. Bell, his commanding officer at Offutt AFB, informing Lt. Col. Bell that he is homosexual. Lt. Col. Bell showed the letter to Lt. Col. David Trask who was about to assume Lt. Col. Bell's duties. At about the same time, plaintiff told a few friends and fellow officers that he was homosexual. (Pl's Br. at 20). The Air Force canceled plaintiff's assignment to Saudi Arabia and reassigned him to Offutt AFB.

As a result of his letter and statements, the Air Force initiated proceedings to discharge plaintiff. A Board of Inquiry conducted a hearing on the matter, and on December 2, 1993, recommended that plaintiff be discharged. Before the Air Force took final action on that recommendation, however, the Secretary directed that the case be reconsidered under the recently enacted policy regarding homosexuals in the military. The Air Force reinitiated discharge proceedings in April, 1994, and a second Board of Inquiry conducted a hearing in June, 1994. At the hearing, plaintiff read a sworn statement and testified that he had not in the past and would not in the future engage in any prohibited conduct. On June 21, 1994, the Board of Inquiry recommended that plaintiff be discharged. Following the Board of Inquiry, the Air Force processed plaintiff's case through several procedural steps, including a Board of Review. At each stage, it was...