Saal v. Middendorf, C-73-1299 WWS.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation427 F. Supp. 192
Decision Date08 February 1977
Docket NumberNo. C-73-1299 WWS.,C-73-1299 WWS.
PartiesMary Roseann SAAL, Plaintiff, v. J. William MIDDENDORF, Secretary of the United States Navy, in his official capacity, Defendant.

427 F. Supp. 192

Mary Roseann SAAL, Plaintiff,
J. William MIDDENDORF, Secretary of the United States Navy, in his official capacity, Defendant.

No. C-73-1299 WWS.

United States District Court, N. D. California, Civil Division.

February 8, 1977.

427 F. Supp. 193

Mary C. Dunlap, Nancy L. Davis, Jo Ann Chandler, Joan Messing Graff, Equal Rights Advocates, Inc., San Francisco, Cal., for plaintiff.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., Civ. Div., San Francisco, Cal., for defendant.


SCHWARZER, District Judge.

In this action plaintiff challenges on due process grounds the validity of Instruction

427 F. Supp. 194
1900.9A issued by the Secretary of the Navy and entitled "Policy for the Separation of Members of the Naval Service by Reason of Homosexuality." Paragraph 4.a states the policy to be as follows
"Members involved in homosexuality are military liabilities who cannot be tolerated in a military organization. In developing and documenting cases involving homosexual conduct, commanding officers should be keenly aware that members involved in homosexual acts are security and reliability risks who discredit themselves and the Naval service by their homosexual conduct. Their prompt separation is essential. At the same time, every safeguard must be taken to insure against unjust action that will stigmatize an innocent person."

Plaintiff enlisted in the United States Navy on December 17, 1971. Following training she was assigned as an air traffic controller at Alameda Naval Air Station. In January 1972 she entered on a three-year enlistment contract. In March 1973, after an investigation by the Navy into plaintiff's activities, she signed a statement admitting homosexual relations with another Navy enlisted woman. Thereafter, administrative proceedings to separate plaintiff were instituted pursuant to Navy regulations. An administrative discharge board was convened on July 6, 1973, and, after hearing, recommended on the basis of plaintiff's admitted homosexual activity that she should be separated from the service with a general discharge.

This action was filed on June 27, 1973, seeking injunctive relief to prevent the Navy from discharging plaintiff for her homosexual activity as well as damages. In August 1973, Judge Oliver J. Carter granted preliminary injunctive relief staying the discharge pending a decision on the merits. In November 1973, the Chief of Naval Personnel notified plaintiff that he had directed her separation with a general discharge. In January 1974, defendant moved for summary judgment contending (1) that plaintiff had failed to exhaust her administrative remedies, (2) that the administrative hearing accorded plaintiff satisfied due process, and (3) that the discharge was lawful. On July 10, 1974, Judge Carter denied the motion, rejecting the first contention and holding that the other two contentions were not ripe for disposition by summary judgment.

With the term of her enlistment contract nearing its end, plaintiff in September 1974 submitted a written request for extension to her commanding officer in accordance with Navy regulations. The commanding officer, aware of the pending litigation and not wanting to take action which might affect it, forwarded the request without recommendation to the Chief of Naval Personnel, the final authority in such matters, and asked for advice. On December 12, 1974, the Chief of Naval Personnel replied by denying plaintiff's request for extension and ordering her separation upon expiration of her enlistment with an honorable discharge. The prior directive ordering her discharge by reason of unfitness was cancelled and her discharge was "characterized as warranted by the average performance evaluation marks which have been earned during her period of service." At the same time, plaintiff was assigned reenlistment code RE-4 which designates persons ineligible for reenlistment.

Plaintiff's enlistment expired on January 6, 1975. Defendant immediately moved to dismiss this action as moot. By order dated August 19, 1975, Judge Carter granted the motion, lifted the prior stay order thereby permitting issuance of an honorable discharge to plaintiff, but gave plaintiff leave to file an amended complaint. On August 22, 1975, plaintiff was discharged from the Navy. On September 15, 1975, she filed her first amended complaint in which she contends that she was deprived of due process by reason of having been rendered ineligible for reenlistment under Instruction 1900.9A.

On May 5, 1976, plaintiff moved for summary judgment on two grounds:

(1) That Instruction 1900.9A is unconstitutional on its face in that it presumes the unfitness of every person involved in homosexual

427 F. Supp. 195
conduct, in violation of the due process clause of the Fifth Amendment

(2) That Instruction 1900.9A is unconstitutional as applied to plaintiff by disqualifying her from reenlistment despite her demonstrated fitness for military service, in violation of the Fifth Amendment.

On June 24, 1976, defendant filed a cross-motion for summary judgment, contending in substance:

(1) That the action is moot;

(2) That the court lacks jurisdiction of the subject matter;

(3) That plaintiff has failed to exhaust her administrative remedies;

(4) That plaintiff has no constitutional right to continued employment; and

(5) That the discharge of homosexuals as military liabilities is rational.

In August 1976, this case was assigned to the undersigned. Extensive argument was heard on the motions and supplementary memoranda and affidavits have been submitted by the parties.

The Court has concluded that plaintiff is entitled to partial summary judgment on the issue of the constitutional validity of Instruction 1900.9A and the related regulations as applied to her. The present record does not permit disposition of her claim for damages and other relief. In the following sections of this opinion, the Court will consider the issues in the order presented by defendant's motion for summary judgment.

I. The Action is Not Moot

Defendant argues that the action became moot when plaintiff was granted an honorable discharge upon the expiration of her enlistment contract. While it is true that the jurisdiction of federal courts is constitutionally restricted to "cases" or "controversies", those words, as the Supreme Court has said,

". . . have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968).

There can be no question that plaintiff presents a question in an adversary context and in a form capable of and proper for resolution through the judicial process. As will be discussed in detail below, as a result of the application of the challenged Instruction 1900.9A, plaintiff was barred first from having her enlistment extended and thereafter from reenlistment.

If the application of that Instruction to plaintiff violated due process, she may have a claim for damages and other relief regardless of the fact that she was honorably (though involuntarily) discharged. See, Franks v. Bowman Transportation Co., 424 U.S. 747, 755-756, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 140-141, 157-173, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Accordingly, the action cannot be dismissed as moot.1

427 F. Supp. 196

II. This Court has Subject Matter Jurisdiction

Plaintiff asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343(4). The latter section does not apply because the action is not brought "under any Act of Congress providing for the protection of civil rights, including the right to vote."

Under Section 1331, this Court has jurisdiction "of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 . . . and arises under the Constitution . . . of the United States." It is not disputed that plaintiff's claim arises under the Fifth Amendment of the Constitution. Defendant argues, however, that the amount of pay and allowances plaintiff would have received had she remained on active duty is speculative because it is not known whether her request for extension of her enlistment would otherwise have been granted.

The degree of certainty required to meet the jurisdictional test is considerably less than defendant would have the Court believe. It is sufficient if plaintiff's monetary claim is made in good faith. As the Supreme Court stated only recently in Mt. Healthy City Board of Ed. v. Doyle, ___ U.S. ___, 97 S.Ct. 568, 570, 50 L.Ed.2d 471 (1977), quoting from St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 82 L.Ed. 845 (1938):

"`. . . The sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the Court jurisdiction does not show his bad faith or oust the jurisdiction.' Id., at 288-289 58 S.Ct., at 590."

In the light of the record discussed below, plaintiff's prospects of realizing the amount claimed are sufficient to preclude a finding that the claim is less than the jurisdictional...

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    ...214, 417 F.2d 1161; Society for Individual Rights, Inc. v. Hampton, (N.D.Cal.1973) 63 F.R.D. 399; Saal v. Middendorf (N.D.Cal.1977) 427 F.Supp. 192, 199-203; Martinez v. Brown (N.D.Cal.1978) 449 F.Supp. 207, 211-213; In re Kimball (1973) 33 N.Y.2d 586, 347 N.Y.S.2d 453, 301 N.E.2d 436; cf. ......
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