Pages 1--53 from Unknown

	FRANK W. HUNGER
	Assistant Attorney General
	TERREE A. BOWERS
	United States Attorney
	ANTHONY J. STEINMEYER
	(202) 514- 3388
	E. ROY HAWKENS
	(202) 514- 5714
	Attorneys, Appellate Staff
EDWARD DUFFY, Major, USMC	Civil Division, Room 3127
Office of the JAG	Department of Justice
Dep't of the Navy	Washington. D. C. 20530- 0001

2. Whether the district court erred in holding that the military's former policy regarding homosexuals violates equal protection and in failing to consider material evidence submitted by the Department of Defense supporting the rationality of that policy.

3. Whether the district court exceeded its authority in granting injunctive relief to persons other than plaintiff in a non-class action where plaintiff sought to enjoin only his own discharge.

The district court exercised jurisdiction pursuant to 28 U. S. C. § 1331, and it entered a final order and judgment on January 29, 1993. See Excerpts of Record ("ER") at 75. The Government served a timely Rule 59 (e) motion, which the court denied by order entered February 19, 1993. See ER at 101. The Government noticed an appeal on March 3, 1993. See ER at 103. This Court has jurisdiction pursuant to 28 U. S. C. § 1291.

A. Nature Of The Case. Volker Keith Meinhold, while on active duty as an enlisted member in the Navy, announced his homosexuality on television on May 19, 1992. On August 12, 1992, the Navy honorably discharged Meinhold pursuant to regulations that mandate the discharge of members who declare their homosexuality and thus, "by their statements, demonstrate a propensity to engage in homosexual conduct." See Department of Defense ("DOD") Directive 1332.14.¹ Meinhold, without exhausting his intramilitary remedies, brought this suit alleging that his discharge was substantively and procedurally defective, barred by estoppel, and unconstitutional. Meinhold asked the court to
order his reinstatement, declare the relevant regulations unconstitutional, and enjoin DOD from separating him based on his homosexuality.

By order entered January 29, 1993, the district court (Judge Terry J. Hatter, Jr.) granted summary judgment for Meinhold, holding that the regulations violated equal protection. The court rescinded Meinhold's discharge and "permanently enjoined [DOD] from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States." ER at 76. On February 12, 1993, the Government filed a motion under Rule 59 (e) advising the court of the ongoing policy review directed by the President, and requesting that the court's order, inter alia, be confined to Meinhold. The court denied the motion.

On January 29, 1993 -- the same day that the district court entered its injunctive order -- President Clinton announced that DOD would conduct a comprehensive review of the military's policy regarding homosexuality and submit a draft executive order based on that review by July 15, 1993. The President stated that during the pendency of DOD's review, an interim policy would be
implemented whereby service members would no longer be questioned regarding their sexual orientation on induction applications. Further, pursuant to the interim policy, although the military would continue to process members for separation pursuant to the former policy, where the member was subject to separation based solely on his acknowledgement of homosexuality the Attorney
General would be authorized to suspend the final discharge and

transfer the member to the standby reserve pending completion of the policy review.²

On July 19, 1993, the President announced a new policy regarding homosexuals in the military. Under the new policy, homosexual conduct will continue to be grounds for separation from the military services,³ but sexual orientation is considered a personal and private matter and will not be a bar to service entry or continued service unless manifested by homosexual acts or evidence that reveals a propensity to commit homosexual acts. The new policy will become effective October 1, 1993.

homosexual conduct," see DOD Directive 1332.14, the Navy convened an administrative discharge board to assess Meinhold's continued suitability for service. Evidence submitted at the board included a tape of the news segment in which Meinhold declared his homosexuality, as well as a critique sheet in which a military subordinate and former student of Meinhold's stated:⁴

By unanimous vote, the board found that the evidence supported a conclusion that, based on Meinhold's own statement, he was homosexual and therefore unsuitable for continued military
service. See DOD Directive 1332.14. The board recommended that Meinhold be discharged, and on August 12, 1992, Meinhold received an honorable discharge. See ER at 24, 27.

On October 6, 1992, without having pursued his administrative remedies before the Board for Correction of Naval Records ("BCNR"), Meinhold brought this suit asking that his discharge be
rescinded on the grounds that it was procedurally defective, the Navy was estopped from separating him, and the relevant regula-

tions were unconstitutional. The suit was not a class action. Meinhold sought injunctive relief solely on his own behalf in the form of reinstatement and an injunction barring the Navy from discharging him based on his homosexuality. See ER at 16, 32.

On November 6, 1992, the district court granted Meinhold's motion for a preliminary injunction reinstating Meinhold to active duty. See ER at 5. The Government appealed, but the appeal was rendered moot by the district court's subsequent issuance of a permanent injunction, which is the subject of this appeal. See ER at 89, 102.

2. By order entered January 29, 1993, on the parties' cross motions for summary judgment, the court held that the military's policy violated equal protection. See ER at 75, 88. At the outset, the court ruled that the futility doctrine excused Meinhold from exhausting his military remedies. See ER at 84. Then, bypassing Meinhold's nonconstitutional arguments, the district court proceeded straight to the equal protection issue.

The court stated that, to sustain its policy against Meinhold's equal protection challenge, DOD "must establish, through a factual record, that its policy is rationally related to its permissible goals." ER at 84- 85. The court then stated -- erroneously -- that DOD's factual record consisted "solely [of] a report produced by the United States General Accounting Office in June of 1992," which the court found was insufficient to sustain the military's policy. The court disregarded three declarations of high- level DOD officials explaining the factual

basis supporting the military's policy. See Declarations of Christopher Jehn, Assistant Secretary of Defense, ER at 52- 55; Rear Admiral S. Frank Gallo, U. S. Navy, ER at 65- 74; and Captain Gregory A. Markwell, U. S. Navy, ER at 56- 64. Based on its review of "scientific and sociological analyses" in the record critical of the military's policy, the court held that the policy violated equal protection. See ER at 85-87.

On this basis, the court rescinded Meinhold's discharge and permanently enjoined DOD "from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States." ER at 76.

3. On February 12, 1993, the Government served a Rule 59 (e) motion requesting that the district court's order be altered to specify that DOD could implement the President's interim policy (see supra pp. 3-4) as to persons other than Meinhold, or that the order be altered so as to be applicable solely to Meinhold. Alternatively, the Government moved for a stay pending appeal to the extent that the order granted relief extending beyond Meinhold. By order entered February 19, 1993, the district court denied the motion. See ER at 101.

4. This appeal followed. On March 3, 1993, the Government filed an emergency motion for a stay pending appeal of the injunctive order to the extent it conferred relief on persons other than Meinhold. On March 12, 1993, this Court denied the motion, observing that "[w]hile there is a legitimate dispute as

to whether the permanent injunction entered by the district court should extend beyond Meinhold, it is difficult to see how appellants will be substantially harmed pending appeal . . . [because] there does not appear to be a conflict between the district court's January 28, 1993 permanent injunction and the [President's interim policy]. ER at 105 (citation omitted).

This Court reviews grants of summary judgment de novo, viewing evidence in the light most favorable to the non-moving party to determine whether there are any genuine issues of material fact. See High Tech Gays v. DISCO, 895 F. 2d 563, 570 (9th Cir. 1990).

Without having exhausted his intramilitary remedies, Meinhold brought this suit seeking reinstatement on the grounds that his discharge lacked an adequate explanation, was procedurally
defective, was barred by estoppel principles, and was unconstitutional because application of the Navy's policy regarding homosexuality constituted an unlawful bill of attainder and violated equal protection. Significantly, he repeatedly averred that the district court would not have to reach the
constitutional issues because his nonconstitutional arguments mandated reinstatement. Despite these averments, the district court looked past the nonconstitutional arguments and issued a broad constitutional ruling, accompanied by an equally broad injunctive order extending beyond Meinhold, striking down the

Navy's policy on equal protection grounds. We will show that this was reversible error.

In Part I, we show that the court's decision should be vacated and the case remanded for the following alternative reasons: (1) the court erred in adjudicating Meinhold's reinstatement claim without first requiring Meinhold to exhaust his intramilitary remedies, see Part I- A; and (2) the court erred in adjudicating Meinhold's equal protection claim without first resolving the nonconstitutional claims that, according to Meinhold, mandated his reinstatement, see Part I. B.

We show in Part II that the district court erred on the merits in holding that DOD's former policy violated equal protection. Under that policy, military officials concluded as a matter of "considered professional judgment," Goldman v. Weinberger, 475 U. S. 503, 509 (1986) that "the presence 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." DOD Directive 1332.14. We submit that previous decisions of this Court foreclose debate that it is constitutionally permissible for DOD to conclude that homosexual conduct adversely affects the military. Beller v. Middendorf, 632 F. 2d 788 (9th Cir. 1980), cert. denied, 452 U. S. 905 (1981). In an effort to avoid this Ninth Circuit precedent upholding the military's right to separate members for homosexual conduct, the district court here defined the classification in question as

"gays and lesbians who do not engage in prohibited conduct." ER at 84. However, the regulatory language, DOD's reasonable interpretation, and judicial precedent make plain that the policy targets members who have engaged or, as relevant here, will likely engage in homosexual conduct. The policy targets homosexual "conduct -- past, present, and future, but conduct nonetheless." Watkins v. Army, 847 F. 2d 1329, 1362 (9th Cir. 1988) (Reinhardt, J., dissenting), vacated, 875 F. 2d 699 (9th Cir. 1989) (en banc), cert. denied, 498 U. S. 957 (1990).

DOD's policy of discharging all members who, through their acts or statements, demonstrate a propensity to commit homosexual acts has repeatedly been held to be a rational exercise of the military's broad discretion to determine the appropriate composition and regulation of the Armed Forces. See Ben- Shalom v. Marsh, 881 F. 2d 454, 464 (7th Cir. 1989), cert. denied, 494 U. S.
1004 (1990); Woodward v. United States, 871 F. 2d 1068, 1074 (Fed. Cir. 1989), cert. denied, 494 U. S. 1003 (1990). Moreover, here the Government established, consistent with Pruitt v. Cheney, 963 F. 2d 1160 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992), by reference to record evidence that the district court failed to consider, that the military's prior policy has a rational basis amply sufficient to survive constitutional scrutiny in the special military context.

Thus, if this Court reaches the merits -- which we argue should be unnecessary given available nonconstitutional grounds for overturning the district court's judgment -- it should

reverse and remand with instructions to enter judgment in favor of DOD. See High Tech Gays v. DISCO, 895 F. 2d 563, 574 (9th Cir.
1990).⁵

Finally, we show in Part III that the district court's order is overbroad. Meinhold's suit was not a class action, and he sought injunctive relief only on his own behalf in the form of rescission of his discharge and reinstatement. The district court, instead of resolving the case before it, exceeded its
authority in enjoining DOD from "discharging or denying enlistment to any person based on sexual orientation . . . ." The district court's ruling may interfere with implementation of the President's new policy regarding homosexuality in the military. The unbridled scope of the district court's order could be construed to require that the new policy be subjected to district court scrutiny before it can be implemented -- a complete reversal of the relationship between the courts and the Political Branches, which are given primary constitutional

responsibility for military matters. Separation of powers principles require the district court to defer to the Political Branches and permit them to make in the first instance their own determination of the appropriate policy concerning homosexuals in the military free from the threat of a potential contempt sanction. Only after that new policy has been applied to individual service members would it be appropriate for the courts to hear and decide challenges to its constitutionality. Because Meinhold can be provided with complete relief by an injunction limited solely to barring his discharge, the injunctive order must be vacated to the extent it provides benefits to nonparties.

Army, 770 F. 2d 1494, 1495 (9th Cir. 1985) ("Strict application of the exhaustion requirement in military discharge cases maintains the balance between military authority and the federal courts.").
Accord Pruitt v. Cheney, 963 F. 2d 1160, 1166- 67 & n. 6 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992).

Strict application of the exhaustion doctrine in discharge cases also promotes judicial economy in several respects. First, the military review process produces a record for judicial review, which is particularly beneficial in cases, such as Meinhold's, involving factual issues or questions regarding the
proper construction and application of military regulations. See Muhammad, 770 F. 2d at 1495. Second, the military review process may accord the member the relief he seeks, thereby obviating the need for judicial review. See Noyd v. Bond, 395 U. S. 683, 696 (1969). Finally, requiring a service member to exhaust administrative remedies may moot a member's constitutional claim and thereby Vindicate the fundamental doctrine that courts should avoid passing on unnecessary constitutional questions." Bois v. Marsh, 801 F. 2d 462, 468 n. 11 (D. C. Cir. 1986) (quoting
Sohm v. Fowler, 365 F. 2d 915, 919 (D. C. Cir. 1966)). Accord Schlesinger v. Councilman, 420 U. S. 738, 757- 60 (1975).

Thus, significant policy concerns -- both constitutional and practical in nature -- support vigorous application of the exhaustion doctrine to discharged service members who seek reinstatement.
Exceptions are not favored and are limited to the

rare instance where: (1) the administrative process does not provide plaintiff with an opportunity for adequate relief; (2) exhaustion would be futile; (3) the plaintiff will suffer irreparable harm absent immediate judicial relief; or (4) substantial constitutional questions are raised. See Muhammad, 770
F. 2d at 1495. None of these exceptions applies here.

First, the intramilitary appeal process provides Meinhold with an opportunity for adequate relief. Meinhold sought reinstatement on regulatory, statutory, equitable, and constitutional grounds. See ER at 27- 32. Because the BCNR is fully empowered to review these claims and, acting through the
Secretary, provide appropriate relief, including reinstatement, retroactive promotion, and back pay, exhaustion was required. See 10 U. S. C. § 1553( b); 32 C. F. R. § 723.3( e).

Second, by Meinhold's own concession, this is not the type of case that implicates the futility exception to exhaustion. Meinhold himself characterized this case as being "intensely factual . . . ." See Supplemental Memorandum of Volker Keith Meinhold at 19, No. 93- 1077 (Fed. Cir.). Meinhold advanced three nonconstitutional and two constitutional arguments supporting his reinstatement, and he argued that "it was doubtful that [the constitutional] arguments would ever be reached," because his nonconstitutional arguments (i.e., his APA claim that the discharge lacked a reasoned explanation, his claim that the Navy violated its own regulations, and his claim that the military was estopped from discharging him) mandated reinstatement. Id. at 3-

4.⁶ Under these circumstances, where the nonconstitutional issues involve questions of fact, procedure, and regulatory construction that Meinhold contends should be dispositive of his reinstatement claim, exhaustion should be the rule.

The district court's invocation of the futility exception was therefore error. Contrary to the district court's suggestion, see ER at 84, the Government did not concede that BCNR review would be futile. Further, contrary to the district court's ruling, see id., this Court's decision in Watkins does
not support applying the futility exception here, because unlike the claimant in Watkins, Meinhold contended that issues of fact, procedure, and regulatory construction exist that should be dispositive of his reinstatement claim.⁷ Under these circumstances, exhaustion is clearly warranted. Even if Meinhold did not obtain the desired relief from the BCNR, the military appeal process would have the laudatory effect of preparing a record for judicial review. As the Federal Circuit stated:

Third, this is not a case where Meinhold would have suffered irreparable harm if he had been required to exhaust his administrative remedies. Meinhold alleged that immediate judicial review was warranted because he would otherwise be "deprive[d] . . . of his lifelong career and sole livelihood,"
and his skills as a sonar analyst and instructor would deteriorate. See ER at 28. This type of harm, however, is "common to most discharged employees . . . [and] will not support a finding of irreparable injury, however severely [it] may affect a particular individual." Hartikka v. United States, 754 F. 2d 1516, 1518 (9th Cir. 1985) (emphasis added) (quoting Sampson v. Murray, 415 U. S. 61, 92 n. 68 (1974)).

Finally, this is not a case where the existence of a substantial constitutional question rendered exhaustion inappropriate. As this Court has held, the existence of constitutional

claims does not alone absolve a service member from exhausting administrative remedies, because the military review process will benefit judicial review by creating a record, explicating the proper construction and application of the relevant regulations, and possibly mooting some claims. See Muhammad, 770 F. 2d at 1496; Trerice, 769 F. 2d at 1401 (citing cases). Exhaustion was especially warranted in this case where, by Meinhold's own assertion, the constitutional challenges were incidental in the sense that they would likely be mooted by resolution of the nonconstitutional challenges. See supra note 6.

In sum, the district court's failure to adhere to the exhaustion doctrine was reversible error. Its precipitous adjudication of Meinhold's suit: (1) deprived the Navy of the opportunity to consider Meinhold's claims in the first instance; (2) deprived the judiciary (both the district court and this
Court) of the benefit of the military's review; and (3) resulted in the premature, and perhaps unnecessary, resolution of a constitutional claim that, by Meinhold's own assertion, should have been deferred. This Court should therefore vacate and remand with instructions to dismiss Meinhold's complaint pending Meinhold's exhaustion of administrative remedies.

The Supreme Court's recent decision in Darby v. Cisneros, 61 U. S. L. W. 4679 (U. S. June 21, 1993), does not absolve Meinhold from exhausting his intramilitary remedies. There, the Supreme
Court held that courts may not "impose an exhaustion requirement

as a rule of judicial administration where the agency order has already become 'final' under § 10 (c) [of the APA, 5 U. S. C. § 704]." 61 U. S. L. W. at 4684. That holding is no bar to exhaustion here for two reasons. First, as the Court stated, "the exhaustion doctrine continues to apply as a matter of
judicial discretion in cases not governed by the APA." Id. Because Meinhold brought four distinct claims, only one of which purports to be "governed by the APA," see ER at 27- 31, the exhaustion doctrine "appl[ies] as a matter of judicial discretion" and binding precedent. Second, and in any event, absent legislative evidence mandating a contrary result, exhaustion should continue to be the rule for service members who bring APA claims for grievances related to military service. Pursuant to its "plenary constitutional authority over the military, [Congress] has established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure." Chappell v. Wallace, 462 U. S. 296, 302 (1983). See 10 U. S. C. §§ 1551 et seq. Congress did not intend that service members circumvent their intramilitary remedies by the expedient of rushing to the courthouse with an APA claim. Cf. Feres v. United States, 340 U. S. 135, 146 (1950) (in military context, conventional tools of statutory construction yield to the imperative that, absent an "express congressional command," courts may not impute to Congress an intent to have the judiciary` unnecessarily interfere in military matters).

Dispositively, in Watkins, this Court admonished that a court should refrain from "reach[ing] constitutional issues when the case could have been decided narrowly under the doctrine of
equitable estoppel." See Watkins, 875 F. 2d at 706. Because the district court failed to consider or resolve Meinhold's equitable estoppel claim pursuant to Watkins before reaching the equal protection issue, this Court should vacate the court's decision and remand for disposition of that issue.

Under DOD's former policy, "[a]ppropriate military officials" concluded, as a matter of "considered professional judgment," Goldman, 475 U. S. at 509, that "the presence 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." See DOD Directive 1332.14.

We submit that previous decisions of this Court foreclose debate over whether it is constitutionally permissible for DOD to have concluded that homosexual conduct adversely affects the military. In Beller v. Middendorf, this Court upheld the military's policy "requiring discharge of all who have engaged in homosexual conduct." 632 F. 2d 788, 812 (9th Cir. 1980), cert. denied, 452 U. S. 905 (1981). In sustaining the Navy's policy as constitutionally permissible, this Court stated that the Navy
acted within its discretion in concluding that its policy was necessary "to protect the fabric of military life, to preserve the integrity of the recruiting process, to maintain the discipline of personnel in active service, and to insure the acceptance of men and women in the military, who are sometimes stationed in foreign countries with cultures different from our own." 632 F. 2d at 811. The Beller holding remains the law of this Circuit, and was recently reaffirmed in Schowengerdt v. United States, 944 F. 2d 483, 489-90 (9th Cir. 1991), cert. denied, 112 S. Ct. 1514 (1992). Accord High Tech Gays v. DISCO, 895 F. 2d 563 (9th Cir. 1990).

In an effort to avoid this line of Ninth Circuit precedent upholding the military's right to separate members for homosexual conduct, the district court defined the classification as "gays and lesbians who do not engage in prohibited conduct." ER at 84. That is wrong. Under the military's regulations, the relevant

classification is persons who the military reasonably concludes either have committed or, as relevant here, are likely to commit, homosexual acts based on their admitted "desire" and "propensity" to engage in homosexual conduct. The regulatory language makes plain that the policy targets members who have engaged or, as relevant here, will likely engage in homosexual conduct. The military policy applicable to Meinhold states, inter alia, that 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." See DOD Directive 1332.14. Similarly, the regulatory definition of "homosexual" is linked to homosexual conduct and the propensity to engage in homosexual conduct. See id. ("homosexual" defined as person who "engages in, desires to engage in, or intends to engage in homosexual acts").

As Judge Reinhardt has concluded, "the regulations are targeted at conduct -- past, present, and future, but conduct nonetheless." Watkins v. Army, 847 F. 2d 1329, 1362 (9th Cir. 1988) (Reinhardt, J., dissenting), vacated, 875 F. 2d 699 (9th Cir. 1989) (en banc), cert. denied, 498 U. S. 957 (1990). The Seventh Circuit and the Federal Circuit have both held that the regulations target past and prospective homosexual conduct. See Ben-Shalom v. Marsh, 881 F. 2d 454, 464 (7th Cir. 1989), cert. denied, 494 U. S. 1004 (1990); Woodward v. United States, 871 F. 2d 1068, 1074 (Fed. Cir. 1989), cert. denied, 494 U. S. 1003 (1990).

In admitting his homosexuality, Meinhold admitted under the regulations -- at the very least -- that he had a "desire" and "propensity" to commit homosexual acts. See DOD Directive 1332.14. Absent a contrary showing or assertion by Meinhold, the Navy permissibly could infer that he would probably commit such acts, if he had not already done so. See Department of Navy v. Egan, 484 U. S. 518, 527- 30 (1988) (courts must show the "utmost deference" to "[p]redictive judgment[s]" by the Executive Branch in matters relating to the military); cf. NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 788- 89 (1990) (rebuttable presumptions are valid when "proof of one fact renders the existence of another fact 'so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves it'").⁸

In sum, the relevant classification is not, as the district court erroneously held, homosexuals "who do not engage in [homo-sexual] conduct." ER at 84. Rather, both precedent and DOD's reasonable construction of its regulations show that the relevant classification is persons who the Navy has concluded have committed or, as pertinent here, will likely commit homosexual acts. In holding to the contrary, the district court failed to test the policy, as the Supreme Court has directed, "in light of the purposes [DOD] sought to achieve." Rostker, 453 U. S. at 75.

In Beller, this Court found that the military's policy with respect to homosexual conduct satisfied even heightened constitutional scrutiny. Subsequently, this Court held that only rational basis review was required. See High Tech Gays, 895 F. 2d at 571. The narrow question presented here is whether, in the special context of the Armed Forces, equal protection principles require the military to retain members who it believes have committed homosexual acts or are sufficiently likely to commit future homosexual acts, when it has made the policy determination that retention of such individuals impairs its ability to maintain an effective fighting force. Stated differently, the question is whether the Constitution compels the military to retain members who it reasonably concludes will commit acts that it has further concluded will impair the accomplishment of the

military mission. See DOD Directive 1332.14. To ask this question is to answer it.⁹

2. In Pruitt v. Cheney, 963 F. 2d 1160 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992), this Court reversed a district court's dismissal of a service member's challenge to the military's policy on homosexuality, and remanded for the court to determine whether the military could produce a rational basis in the record, to be evaluated by the district court, to justify the policy. This Court indicated that, on remand, the reasons put forth on the record underlying the military's policy would be entitled to the utmost deference. See Pruitt, 963 F. 2d at 1166-67.¹⁰

Here, consistent with Pruitt, the Government supported its then-existing policy by reference to record evidence, including a GAO Report of June 1992, see ER at 84, a Navy Times article discussing the policies of foreign militaries, see Memorandum In Opposition to Plaintiff's Motion For Summary Judgment (Jan. 11, 1993), and three declarations of high-ranking DOD officials explaining and justifying the policy Meinhold challenges. See Declarations of Assistant Secretary of Defense Christopher Jehn; Rear Admiral S. Frank Gallo; Captain Gregory A. Markwell, ER at 52-74. This record evidence showed that the military could rationally conclude that the former policy promoted, inter alia: (1) the privacy interests of heterosexual members; (2) the military's interest in discharging service members before their propensity to commit impermissible acts ripened into regulatory or criminal misconduct; (3) discipline, recruitment, and retention, because a less broad prohibition might be understood as tacit approval or tolerance of misconduct; and (4) economy, because a less broad prohibition could have a significant budgetary impact if it required constructing separate berthing
and sanitary areas for homosexuals.

Without explanation, the district court failed to consider DOD's declarations. The district court stated -- erroneously -- that the Navy "rest[ed] solely on [the GAO Report of June 1992],"

ER at 85, and the court found (also erroneously we submit) that this Report in conjunction with the military's considered professional judgment was insufficient to sustain the homosexual policy. The court then proceeded to strike down the policy based on its assessment of record evidence that was critical of the policy. See ER at 85- 88. This was error.¹¹

The declarations submitted by DOD, especially when read against the backdrop of precedent and DOD's policy statement, support the rationality of DOD's policy regarding homosexuality. Every court of appeals, including this one, that has reached the merits has upheld DOD's policy against constitutional attack. See Schowengerdt v. United States, 944 F. 2d 483 (9th Cir. 1991), cert. denied, 112 S. Ct. 1514 (1992); Ben-Shalom v. Marsh, 881 F. 2d 454 (7th Cir. 1989), cert. denied, 494 U. S. 1004 (1990); Woodward v. United States, 871 F. 2d 1068 (Fed. Cir. 1989), cert. denied, 494 U. S. 1003 (1990); Dronenburg v. Zech, 741 F. 2d 1388 (D. C. Cir. 1984); Rich v. Secretary of the Army, 735 F. 2d 1220

(10th Cir. 1984); Beller v. Middendorf, 632 F. 2d 788 (9th Cir. 1980), cert. denied, 452 U. S. 905 (1981). See also Steffan v. Cheney, 780 F. Supp. 1 (D. D. C. 1991) (appeal pending).

Moreover, this Court may take notice of the testimony given during extensive hearings before Congress in the recent reconsideration of the military's policy regarding homosexuals. In particular, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff (" JCS"), the Vice Chairman of the JCS, and each service chief supported with forceful and unambiguous testimony the policy of discharging persons who commit, or have a propensity to commit, homosexual acts. See Hearing Before the Senate Committee on Armed Services To Receive Testimony On DOD Policy On The Service Of Gay Men And Lesbians In The Armed Forces, 103rd Cong., 1st Sess. at 38- 39, 78, 88, 113, 134 (July 20, 1993). Indeed, the reasons that this Court and other courts have accepted as sufficient to support the military's former homosexual discharge policy were discussed at length in this hearing and explicitly ratified by political and military officials who are entrusted under the Constitution with establishing suitability criteria for service in the Armed Forces. See, e.g., id. at 16 (policy promotes morale in all-volunteer military); id. at 17, 25, 28 (policy respects privacy of service members who, because of unique nature of military service, must live in close quarters); id. at 25, 30, 31, 33, 37 (policy promotes unit cohesion); id. at 31, 35 (policy promotes military discipline, dedication, and selfless service); id. at 53

(policy promotes recruiting ability); id. at 54- 55 (policy promotes combat readiness); id. at 88 (policy promotes compliance with regulatory and statutory standards of conduct); id. at 129 (policy promotes acceptability of service in Armed Forces). It would be remarkable to conclude that such policy considerations so recently reaffirmed at the highest levels of the military after thorough review are constitutionally irrational.¹²

Meinhold may object to the policy as being overbroad and unfair as applied to him. But see Declaration of Captain Gregory A. Markwell, ER at 56- 64 (Meinhold's commanding officer discusses how "Meinhold's presence . . . has reduced morale, efficiency, and mission focus within the command"). Such objections are irrelevant in the context of an equal protection challenge involving the rational basis test: "Nearly any statute which classifies people may be irrational as applied in particular cases. See Weinberger v. Salfi, 422 U. S. 749 (1975). Discharge of [Meinhold] would be rational, under minimal scrutiny, not because [his] particular case[] present[s] the dangers which
justify Navy policy, but instead because the general policy . . . is rational." Beller, 632 F. 2d at 808-09 n-20.

3. Finally, in Pruitt, 963 F. 2d at 1165, this Court suggested that, in light of Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), this Court's decision in Beller may require reexamination. We submit that the applicability of

Cleburne in the present context is extremely limited because Cleburne was not a military case. See Rostker, 453 U. S. at 67 ("the [constitutional] tests and limitations to be applied [in the military] may differ [from the civilian] context"); Middendorf v. Henry, 425 U. S. 25, 43, 49- 50 (1976) (same). To the extent Cleburne is relevant, however, it does not cast doubt on the validity of DOD's policy.

The Supreme Court stated in Cleburne that "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like." 473 U. S. at 448. As we showed supra, the instant record explains how the military could reasonably conclude that the policy at issue in this case promoted operational efficiency and effectiveness in
the military context. These concerns unquestionably are "properly cognizable" by the military when it establishes suitability criteria for service members, see Cleburne, 473 U. S. at 448, and this Court has held that these concerns have a "basis in fact [and] are adequate to sustain the regulation in its military context." Beller, 632 F. 2d at 812. See also High Tech Gays, 895
F. 2d at 571- 73.

It is a fundamental principle that an injunction "should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U. S. 682, 702 (1979). This Court has squarely held that district courts may not extend injunctive relief to nonparties where no class action has been certified, except in the narrow circum-

stance where that relief is incidentally necessary to give the named parties a complete remedy. Zepeda v. United States INS, 753 F. 2d 719, 727-730 & n. 1 (9th Cir. 1983) (holding that, in the
absence of class certification, preliminary injunctive relief may cover only the named plaintiffs). Although Zepeda involved a preliminary injunction, the same principles are applicable to permanent injunctions. See Bresgal v. Brock, 843 F. 2d 1163, 1170-1171 (9th Cir. 1987).

In the instant case, Meinhold, the only plaintiff, never sought class certification, and he requested injunctive relief only on his own behalf. ER at 16, 32. That Meinhold sought no broader injunction is sufficient in itself to render the nationwide injunction improper. See Thomas v. County of Los Angeles, 978 F. 2d 504, 510 (9th Cir. 1992); Meyer v. Brown & Root Constr. Co., 661 F. 2d 369, 374 (5th Cir. 1981). Further, an order reinstating Meinhold and enjoining the Navy from applying its policy to him would have provided him with complete relief. The district court's order, however, sweeps with the generality of a legislative enactment rather than a judicial decree in providing relief to "any person" who seeks enlistment or retention in the military. The order cannot be justified as necessary to redress any legal wrong to any party before the court, and, for that reason also, it exceeded the court's remedial authority.

If district courts were empowered, in the absence of class certification, to grant injunctive relief to persons other than

the named plaintiffs, there would be no need for class actions. As this Court explained in Zepeda:

In opposing our emergency stay, Meinhold advanced four arguments in an attempt to defend granting injunctive relief to other individuals. These arguments lack merit.

First, Meinhold made the breathtaking argument that a nationwide injunction is "appropriate because the DOD is a party to the suit." Stay Opp. at 12. Under that view, every injunctive action against the Government becomes a class action even though the plaintiffs fail to meet the standards for class certification

established by Federal Rule of Civil Procedure 23. As discussed above, this Court has already specifically rejected that view. Zepeda v. United States INS, 753 F. 2d 719, 730 n. 1 (9th Cir.
1983).14

Second, Meinhold claimed "the [nationwide] injunction is necessary to provide Meinhold complete relief. . . . [A]bsent [a nationwide] injunction, the relief granted Meinhold would be illusory because . . . he . . . would be perpetually subject to future unlawful and discriminatory discharges . . . ." Stay Opp. at 12. Notably, the nationwide injunction which Meinhold contended in this Court is essential is not the relief he requested in the district court. See ER at 32.¹⁵ In any event, Meinhold's argument provides no justification at all for any injunction extending beyond Meinhold. If he believes that an injunction provides "illusory" relief and leaves him "perpetually subject to

future unlawful" action, the remedy is to seek modification of the injunction as it applies to him. Thousands of employment discrimination cases involving both civilian and military employees are resolved each year by the federal courts in which the individual plaintiff is provided complete relief by an injunction limited solely to that individual. Meinhold's case is no different.

Third, Meinhold argued that a nationwide injunction is appropriate "because Meinhold challenged the constitutionality of the Navy's regulations on their face . . . ." Stay Opp. at 12. That Meinhold sought a declaration striking down the regulations on their face, however, does not justify the broad injunction issued by the district court. There is an important difference between injunctive and declaratory relief that Meinhold's argument neglects. Under United States v. Mendoza, 464 U. S. 154 (1984), a declaration that the Navy's regulations are invalid would be binding only as between the Navy and Meinhold, and would not have left the defendants potentially subject to contempt
sanctions for implementing their regulations as to all other service members. See Steffel v. Thompson, 415 U. S. 452, 471 (1974); Kennedy: v. Mendoza-Martinez, 372 U. S. 144, 155 (1963). There is no warrant for Meinhold to use contempt proceedings in this suit as a means for controlling the military's policy as to other homosexual service members with respect to either their enlistments or their discharges. See Ameron, Inc. v. United States Army Corps of Eng'rs, 787 F. 2d 875, 887-891, modified on

other grounds, 809 F. 2d 979 (3d Cir. 1986), cert. dismissed, 488 U. S. 918 (1988) (narrowing injunction in constitutional case to bar the enforcement of agency circular only against the named
plaintiff).¹⁶

Fourth, Meinhold argued. (Stay Opp. at 13-14) that a nationwide injunction is appropriate under Soto-Lopez v. New York City Civil Service Comm'n, 840 F. 2d 162 (2d Cir. 1988). There, the
Second Circuit stated that "an injunction is an appropriate remedy especially when . . . it is conceded that the officials will otherwise continue to enforce the unlawful provisions against some who are not parties to the suit." 840 F. 2d at 168. That test conflicts with the test that this Court adopted in Zepda and Bresgal. The Soto-Lopez test renders Federal Rule of Civil Procedure 23 superfluous for injunctive actions against the Government in that it allows individuals to obtain class-wide injunctions
without satisfying the requirements for a class action even where such broad relief is not necessary to redress the individual claims before the court. Soto-Lopez is also inconsistent with the Supreme Court's holding in Baxter v. Palmigiano, 425 U. S. 308, 311 n. 1 (1976), that an "action is not properly a

class action" without the identification of the class and its certification, neither of which occurred in the present action.

Soto-Lopez stands alone. The Second Circuit has never relied upon its holding regarding the scope of injunctions. The other courts of appeals that have addressed this issue agree with this Court, not the Second Circuit. E.g., Lever Brothers Co. v. United States, 981 F. 2d 1330, 1338 (D. C. Cir. 1993); Brown v. Trustees of Boston Univ., 891 F. 2d 337, 361 (1st Cir. 1989), cert. denied, 496 U. S. 937 (1990); Everhart v. Bowen, 853 F. 2d 1532, 1538-1539 (10th Cir. 1988), rev'd on other grounds, 494 U. S. 83 (1990); Ameron, Inc. v. United States Army Corps of Eng'rs, supra; Professional Ass'n of College Educators v. El Paso County Community College Dist., 730 F. 2d 258, 273-274 (5th Cir.), cert. denied, 469 U. S. 881 (1984); Davis v. Romney, 490 F. 2d. 1360, 1366 (3d Cir. 1974); Tape Head Co. v. RCA Corp., 452 F. 2d 816, 819 (10th Cir. 1971).¹⁷

The leading treatise, relying upon Zepeda, states plainly: "Injunctive relief . . . cannot be granted to persons who are not before the court." 7 J. Moore, J. Lucas, & K. Sinclair, Moore's Federal Practice ¶ 65.17 at 65-167 (2d ed. 1993). That position, not the conflicting Second Circuit's view in Soto-Lopez, accords with the Supreme Court's principle that an injunction "should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U. S. 682, 702 (1979).

Similarly, there was no basis for the district court to use its injunctive powers to control the enlistment policies of all branches of the Armed Forces. Meinhold's amended complaint raised no challenge to any enlistment policy, and his own enlistment in the Navy was simply never an issue in this suit. The injunction below violates the settled rule "that injunctive relief should be narrowly tailored to remedy the specific harms shown by plaintiffs, rather than to enjoin all possible breaches
of law." Zepeda v. United States INS, 753 F. 2d at 728 n. 1 (citations and internal quotations marks deleted) (quoting inter alia, Hartford-Empire Co. v. United States, 323 U. S. 386, 410 (1945)).

Finally, the scope of the district court's injunction is an abuse of its equitable discretion. See Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944). The court's hasty action imposing a

nationwide ban ignored the principle that "where large public interests are concerned and the issuance of an injunction may seriously embarrass the accomplishment of important governmental ends, a court of equity should act with caution and only upon clear showing that its intervention is necessary in order to prevent an irreparable injury." Hurley v. Kincaid, 285 U. S. 95, 104 n. 3 (1932). Accord Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982); see also De Arellano v. Weinberger, 788 F. 2d 762, 764 (D. C. Cir. 1986) (en banc) (per curiam) (it is improper for courts to order injunctive relief that unnecessarily "intrudes into the conduct of . . . military affairs").

The district court's injunction may improperly interfere with the implementation of the new policy regarding homosexuals in the military announced by the President on July 19, 1993, after full consultation with the Congress and the Department of Defense, including the Joint Chiefs of Staff. The unbridled scope of the court's injunction could be construed to require that the President's new policy be totally consistent with the court's views in this case, even though the policy is not applicable to Meinhold, the only party-plaintiff before this Court.

To subject the President's new policy to the injunction in this case, even though it is not applicable to Meinhold, would conflict with the well-settled principle that civilian courts are not to establish military personnel policies. The Constitution vests the Political Branches with "plenary" authority to make

decisions affecting the "composition" of the military. Chappell, 462 U. S. at 301; Rostker v. Goldberg, 453 U. S. 57, 65 (1981). The district court's expansive injunction plainly constitutes
"interfere[nce] with legitimate [military] matters" and an improper arrogation of constitutional authority. See Orloff v. Willoughby, 345 U. S. 83, 94 (1953).

The President, acting with the Congress and military leaders, undoubtedly has the authority to establish a reasonable policy regarding service by homosexuals free from the threat of potential contempt sanctions. In light of the uniquely "complex [and] subtle" nature of decisions about "the composition . . . and control of a military force," Rostker, 453 U. S. at 65, separation of powers principles require the Judiciary to defer to the Political Branches and permit them to make in the first
instance their own determination of the appropriate policy concerning homosexuals in the military. Only after that new policy has been applied to individual service members would it be appropriate for the courts to hear and decide challenges to its constitutionality. On the basis of its improper interference with the President's new policy alone, the present injunction must be vacated to the extent it applies to "any person" other than Meinhold.

For the foregoing reasons, this Court should vacate the district court's order and remand with instructions to dismiss Meinhold's complaint pending exhaustion of intramilitary

remedies. Alternatively, this Court should vacate and remand with instructions to defer adjudication of the constitutional issues pending resolution of the nonconstitutional issues, with the proviso that if the district court reaches the equal protection claim, it must consider and accord appropriate deference to record evidence supporting the military's policy. Alternatively, this Court should reverse the district court's entry of summary judgment for Meinhold, and remand for entry of judgment in favor of DOD on the equal protection issue. Alternatively, this Court should vacate the injunctive order to the extent it goes beyond enjoining Meinhold's own discharge.

	Respectfully submitted,
	FRANK W. HUNGER
	Assistant Attorney General
	TERREE A. BOWERS
	United States Attorney
	ANTHONY J. STEINMEYER
	(202) 514- 3388
	E. ROY HAWKENS
EDWARD DUFFY, Major, USMC	(202) 514- 5714
Office of the JAG	Attorneys. Appellate Staff
Dep't of the Navy	Civil Division. Room 3127
200 Stovall Street	Department of Justice
Alexandria, Virginia 22332	Washington, D. C. 20530

Pursuant to Ninth Circuit Rule 28-2.6, counsel states that he is unaware of any related case pending in this Court.

I hereby certify that on this 29th day of July 1993, I served copies of the Brief For The Appellants and Excerpts of Record on opposing counsel by causing copies to be sent by
Federal Express to:

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 Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence among servicemembers; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of servicemembers who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the Military Services; to maintain the public acceptability of military service; and to prevent breaches of security.

(1) Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts;

(2) Bisexual means a person who engages in, desires to engage in, or intends to engage in homosexual and heterosexual acts; and

(3) A homosexual act means bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires.

c. The basis for separation may include preservice, prior service, or current service conduct or statements. A member shall be separated under this section if one or more of the following approved findings is made:

(1) The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are approved further findings that:

(c) Such conduct was not accomplished by use of force, coercion, or intimidation by the member during a period of military service;

(d) Under the particular circumstances of the case, the member's continued presence in the Service is consistent with the interest of the Service in proper discipline, good order, and morale; and

(e) The member does not desire to engage in or intend to engage in homosexual acts.

(2) The member has stated that he or she is a homosexual or bisexual unless there is a further finding that the member is not a homosexual or bisexual.

(3) The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved) unless there are further findings that the member is not a homosexual or bisexual and that the purpose of the marriage or attempt was the avoidance or termination of military service.

Homosexuality is incompatible with naval service. The presence in the naval 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 naval mission. The presence of
such members adversely affects the ability of the Navy to maintain discipline, good order, and morale; foster mutual trust and confidence among servicemembers; ensure the integrity of the system of rank and command; facilitate assignment and world-wide deployment of servicemembers who frequently must live and work under close conditions affording minimal privacy; recruit and retain members of the Navy; maintain the public acceptability of the Navy; and prevent breaches of security. Some definitions as used in this section are:

a. Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts.

b. Bisexual means a person who engages in, desires to engage in, or intends to engage in homosexual and heterosexual acts.

C. A homosexual act means bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires.

2. The basis for separation may include preservice, prior service, or current service conduct or statements. Preservice or prior service conduct or statements should be processed under MILPERSMAN 3630100. A member shall be separated under this section if one or more of the
following approved findings are made:

a. Homosexuality due to the member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts. However, retention of the member may be approved by Chief of Naval Personnel, when there are approved further findings that:

(1) Such conduct was a departure from the member's usual and customary behavior;

(3) Such conduct was not accomplished by use of force, coercion, or intimidation by the member during a period of naval service;

(4) Under the particular circumstances of the case, the member's continued presence in the naval service is consistent with the interest of proper discipline, good order, and morale; and

b. Homosexuality due to the member's statement that they are homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual.

C. Homosexuality due to the member's marriage or attempted marriage to a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved), unless there are further findings that the member is not a homosexual or bisexual and that the purpose of the marriage or attempt to marry was the avoidance of, or attempt to terminate, naval service.

¹ For this Court's convenience, relevant regulations may be found in the addendum to this brief.

² Persons in the standby reserve do not receive military pay and do not perform military duties on an active-duty basis. Rather, they belong to a military reserve component that is subject to recall in the event of an emergency requiring national mobilization.

³ Homosexual conduct, under the new policy, is a homosexual act, a statement by the service member that demonstrates a pro-pensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a service member that he or she is homosexual or bisexual creates a rebuttable presumption that the service member is engaging in homosexual acts or has a propensity or intent to do so. The service member has the opportunity to present evidence that he does not engage in homosexual acts and does not have a propensity or intent to do so.

⁴ Meinhold's military duties included teaching classes in airborne sonar, aircraft safety, and sonar analysis. See ER at 23.

⁵ Although the district court did not address it, we note that Meinhold's bill of attainder claim is insubstantial for two reasons. First, this Court has squarely held that the prohibi-tion on billsof attainder does not apply to action, like this, that is administrative in nature, but rather to legislative action that is designed to impose punishment without a judicial trial. Marshall v. Sawyer 365 F. 2d 105, 111 (9th Cir. 1966), cert. denied, 385 U. S. 1006 (1967). Second, and in any event, the policy challenged by Meinhold is not punishment. Rather, it is "an exercise of the [military's]legitimate regulatory power to purge its ranks" of persons it deems unsuitable for further military service. See Alberico v. United States 783 F. 2d 1024, 1028 (Fed. Cir. 1986) (citing cases). Accord Garrett v. Lehman, 751 F. 2d 997, 1002 (9th Cir. 1985) (administrative discharge process does not impose punishment, but determines suitability for military service).

⁶ See also Plaintiff's Response to Defendants' Applica-tion for a Stay of Proceedings at 3, 5 (Oct. 20, 1992) (Meinhold asserts that the equal protection argument "need not even be reached" because the other arguments "are determinative of the outcome of this action"); id. at 3 (Meinhold asserts that "the equal protection claim 'is [not] central to this case'").

⁷ As we show infra Part I. B, to the extent that Watkins is relevant here, it requires that the district court's decision be vacated and the case be remanded for further proceedings, because the court improperly resolved the constitutional issue while leaving the nonconstitutional issues unresolved.

⁸ In Pruitt this Court stated that the relevant classi-fication was homosexual "status," but did not explain its use of the term precisely. See 963 F. 2d at 1163. Notably, the term homosexual "status" is not to be found in the regulations, which, as discussed supra, speak in terms of homosexual conduct and the propensity to engage in such conduct. The meaning that DOD attributes to the regulatory term "desire" is informed by its context and by the term "propensity." Pursuant toDOD's interpretation, a service member's expressed "desire" to commit homosexual accts evidences more than an abstract, ephemeral, or suppressible whim. Like acts themselves and like intentions, "desire" in the relevant sense evidences a "propensity," or an "often intense natural inclination," Webster's New Collegiate Dictionary 943 (9th ed. 1990), to commit serious regulatory violations. Absent a credible contrary showing by the member, the military reasonably concludes that a member who expresses a homosexual "desire" will act on the basis of his sexual "propensity." If a member shows that he has no such propensity, the regulations do not mandate his separation. As discussed above, DOD's reasonable interpretation of its own regulations must be accepted as the basis for evaluating Meinhold's equal protection challenge. See Rostker, 453 U. S. at 75.

⁹ DOD's policy to process for discharge members who, through their acts orstatements, demonstrate a propensity to commit homosexual acts serves to protect what this Court has found to be a reasonable prospect of interference with the unique requirements of military effectiveness, see Beller, 632 F. 2d at 811-12, while at the same time conserving scarce resources and attempting to accommodate individual privacy. See Ben-Shalom, 881 F. 2d at 464.

¹⁰ The Supreme Court's recent decision in Heller v. Doe, 61 U. S. L. W. 4728 (U. S. June 24, 1993), shows that this Court incorrectly viewed Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432 (1985), as requiring the military to produce objective record evidence, to be weighed by the court, to justify its policy. In Heller, the Supreme Court stated that a challengedclassification evaluated under the rational basis standard "must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." 61 U. S. L. W. at 4730 (quoting FCC v. Beach Communications, Inc., 61 U. S. L. W. 4526, 4528 (U. S. June 1, 1993) Moreover, such classifications are "not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Id. (citing cases). The "burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it whether or not the basis has a foundation in the record." Id. (quotation marks and citation omitted). Contrary to this Court's understanding in Pruitt, the Supreme Court did not "purport to apply a different standard of rational-basis review [in Cleburne]. Vl Id.

¹¹ Meinhold may argue that the district court properly ignored DOD's declarations because they "exceeded the proper scope of [DOD's] reply brief" for summary judgment, and they were not written "on 28-lined paper" as required by local rule. See Plaintiff's Ex Parte Application For Order Striking Improperly Submitted Declarations (Jan. 28, 1993). Such an argument would lack merit. First, the court did not strike the declarations, so they were indisputably part of the record that the court was obliged to consider. Second, even assuming that the submission of the declarations was procedurally defective in some respect, it would have been reversible error -- given the magnitude of the issue involved -- for the district court to strike the declarations sub silentio and adjudicate the issue without first giving DOD an opportunity to cure the defect. The court certainly could not enter a nationwide injunction and pretermit a process of policy review by the Political Branches on that basis.

¹² The above-cited transcript of the Senate Armed Services hearing has not yet been issued in final form. We will submit a copy of the published transcript when it is issued.

¹³ This Court did not decide this issue in its order on our emergency stay motion, but it stated that "there is a legitimate dispute as to whether the permanent injunction entered by the district court should extend beyond Meinhold . . . ." ER at 105.

¹⁴ If Meinhold were correct that class-wide relief can appropriately be entered in every individual case against the Government, the Government would have a powerful incentive to appeal every adverse merits decision for fear that, after the time for appeal had run and the decision had become final, it would be supplemented by a nationwide injunction. The number of appeals could then create an overwhelming burden for the courts of appeals. In part for this reason, the Supreme Court held that the Government is entitled to rely on the fact that a judgment applies only against the particular plaintiff so the Government is not estopped from relitigating the same issue in another case
brought by a different plaintiff. United States v. Mendoza, 464 U. S. 154, 159- 161 (1984).

¹⁵ Meinhold's amended complaint did seek "any and all relief, other than money damages, as the Court deems just." ER at 32. As the D. C. Circuit has recently held, that "boilerplate language . . . is too slender a reed upon which to rest a nationwide injunction" in a non-class action. Lever Brothers Co. v. United States, 981 F. 2d 1330, 1338 (D. C. Cir. 1993).

¹⁶ Meinhold relied (Stay Opp. at 12-13) upon Decker v. O'Donnell, 661 F. 2d 598 (7th Cir. 1980), but that precedent dealt with a different issue. Decker affirmed an injunction barring the Secretary of Labor from placing federally funded CETA workers in sectarian schools nationwide. Decker shows only that an injunction can impose burdens on the defendants nationwide with respect to the named plaintiffs; it provides no support for an injunction that confers benefits upon nonparties.

¹⁷ Some decisions indicate that injunctive relief can extend beyond the parties in a non-class action under Title VII. Gresory v. Litton Systems, Inc. 472 F. 2d 631, 633-634 (9th Cir. 1972) (dicta); Evans v. Harnett'County Bd. of Educ., 684 F. 2d 304, 306 (4th Cir. 1982); Carmichael v. Birmingham Saw Works 738 F. 2d 1126, 1136 (11th Cir. 1984) (dicta); Meyer v. Brown & Root Constr. Co., 661 F. 2d 369, 373-374 (5th Cir. 1981) (dicta). See also, 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1771 at p. 409 (2d ed. 1986). Those decisions were supported by the broad provision in Title VII that "the court may enjoin the respondent from engaging in [an] unlawful employment practice . . . ." 42 U. S. C. 2000e-5 (g). No comparable remedial statute applies to this case. In addition, the remedy sought in discrimination cases often is a desegregated workplace or facility, and, to accomplish that objective, the decree must provide benefits to other members of the group discriminated against who are not parties to the suit. Zepeda v. United States INS, 753 F. 2d at 728-729 n. 1. Here, however, Meinhold challenges only his
own discharge from the Navy. He has not requested that the Navy, let alone the other military services, enlist or retain other homosexuals. The Title VII cases, therefore, do not support the
nationwide injunction granted in this case.

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