JIM TURNER v. U.S. NAVY
U.S. District Court Decision and Order, DEC 1998
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CIVIL ACTION NO. 1:97CV01653 (PLF)
JIM A. TURNER, Plaintiff, v.
UNITED STATES NAVY, et al., Defendants.
OPINION
Plaintiff Jim A. Turner alleges that his discharge from the Navy pursuant to the Defense Department's "Don't Ask, Don't Tell" policy violated his rights under the First and Fifth Amendments to the United States Constitution and the Administrative Procedure Act, 5 U.S.C. ßß 701 et seq. In Count I of his complaint, Mr. Turner questions the legality under the APA of four actions taken by the Navy: (1) the Navy's investigation of him under its guidelines for inquiries into homosexual conduct, (2) his commanding officer's decision to punish him through a Nonjudicial Punishment ("NJP") proceeding, (3) his discharge from the Navy after a hearing before an Administrative Discharge Board ("ADB"), and (4) the Navy's rejection of the recommendation of a majority of the Board for Correction of Naval Records ("BCNR") to reverse the NJP and ADB decisions. Counts II, III and IV assert that Mr. Turner's discharge deprived him of his constitutional rights to due process of law, equal protection of the laws and freedom of speech.
This case is before the Court on cross motions for summary judgment. The Court grants summary judgment for Mr. Turner on Count I. It finds that the Navy's rejection of the BCNR majority decision was arbitrary and capricious because the Secretary of the Navy did not address non-frivolous arguments raised by plaintiff and did not set out a reasoned basis for his decision. The Court refrains from considering the constitutional claims underlying Counts II, III and IV.
I. BACKGROUND
Plaintiff Jim A. Turner served in the Navy from 1987 to 1994, primarily as a tactical air controller. He appears to have served with distinction, receiving a number of commendations, including the 1988 "Sailor of the Year" award for his squadron. Administrative Record ("A.R.") at 228.
While serving on the U.S. S. Antietam in April of 1994, Mr. Turner was accused by three subordinates of homosexual conduct. The first, Petty Officer John T. King, alleged that Mr. Turner offered him money to allow Mr. Turner to perform oral sex on him and that Mr. Turner touched him in his groin. Statement of John T. King, A.R. at 48.(1) The second. Seaman Apprentice Lee J. Poore, accused Mr. Turner of expressing the intention to perform oral sex on him after throwing him on a bed in a hotel room where they were playing cards. Statement of Lee J. Poore, A.R. at 49. The third, Seaman Chad M. Maurer, asserted that Mr. Turner may have undressed him when he was drunk and that on two separate occasions Mr. Turner asked to perform oral sex on him. Statement of Chad M. Maurer, A.R. at 50.
On the basis of these accusations, Mr. Turner's commanding officer. Captain J.L. Frank, initiated an investigation that was conducted primarily by his Chief Master at Arms, Chief Petty Officer C. M. Clanahan. A.R. at 62. Under the Navy's guidelines for inquiries into homosexual conduct. Captain Frank could initiate the inquiry "only if he ... ha[d] credible information that there is a basis for discharge." Guidelines for Fact-Finding Inquiries into Homosexual Conduct, Department of Defense Directive 1332.14, enc. 4 at 4-2 ("Investigative Guidelines"). (2) Clanahan interrogated King, Poore and Maurer and took statements from each of them. At the conclusion of the investigation, Clanahan recommended Nonjudicial Punishment ("NJP") and discharge. Preliminary Inquiry Report, A.R. at 54.
That same day Captain Frank held a "captain's mast" - the NJP Proceeding - at which Mr. Turner's three accusers stood by the written statements they had provided to Clanahan. Complaint K 126. There was no cross-examination. Id. at K 127. After consulting with an attorney by telephone, Mr. Turner invoked his right to remain silent, id. at H130. Captain Frank then imposed the NJP, consisting of the forfeiture of two months' pay and a demotion of one pay grade. Action of the Commanding Officer, A.R. at 54. Captain Frank stated that he was "convinced" that Mr. Turner's accusers were "credible witnesses" and that "the evidence convincingly demonstrates Petty Officer Turner's guilt." A.R. at 63.
Two weeks later, an administrative discharge board ("ADB"), consisting of three members of the Antietam's crew, was convened to decide whether Mr. Turner should be discharged from the Navy. King, Poore and Maurer all testified and were cross-examined by Mr. Turner's attorney. Proceedings of the Administrative Discharge Board ("ADB Proceedings"), A.R. at 69-161. On cross-examination. King described some of his own misconduct and his general reputation as "off the wall," and counsel for Mr. Turner portrayed him as an unreliable witness. Id. at 86-90, 116. In his testimony, Maurer revealed that he had not made any allegations against Mr. Turner until he was subjected to an intimidating, closed-door interview with Clanahan and that he then had pending an application for an early separation from the Navy. Id. at 96, 104-05. Nonetheless, Maurer did not recant his allegations. Id. at 109. Finally, Mr. Turner testified on his own behalf, denying all allegations. Id. at 134-49.
At the conclusion of the proceeding, the ADB found that Mr. Turner had not committed all of the misconduct of which he was accused but had committed "a serious offense involving sexual harassment" and "homosexual conduct." ADB Proceedings, A.R. at 157. The ADB explicitly disregarded the testimony of King as lacking in credibility and found that Mr. Turner did not assault Poore because Poore perceived Mr. Turner's physical act of throwing him on the bed as "horseplay." Id. at 158-59. Nonetheless, on the basis of Maurer's statements and the remainder of Poore's testimony, the ADB concluded that Mr. Turner had violated the Navy's prohibitions on indecent remarks and solicitation of homosexual conduct. Id. at 157-60. The ADB based its conclusions on three incidents: (1) Mr. Turner's indecent language and solicitation of homosexual conduct when he allegedly asked to perform oral sex on Poore in the hotel room, (2) Mr. Turner's indecent language and solicitation of homosexual conduct when he allegedly asked to perform oral sex on Maurer on February 15, 1994, and (3) Mr. Turner's indecent language and solicitation of homosexual conduct when he allegedly offered Maurer money to perform oral sex on him on April 16, 1994. Id. The ADB unanimously recommended an "other than honorable" discharge, and Mr. Turner was discharged from the Navy under other than honorable conditions on August 25, 1994.
Mr. Turner then sought review by the Board for the Correction of Naval Records ("BCNR"). The three-member BCNR unanimously rejected many of Mr. Turner's specific arguments, but a two-person majority found, inter alia, that both Mr. Turner's NJP and discharge "[were] based on suspicion and rumor and not on credible evidence." BCNR Report, A.R. at 609-10, 612. The two board members constituting the majority noted "a strong implication" that Maurer's allegations were motivated by "a fear that his early separation would not be approved if he did not so allege." Id. at 612. They also found it "extremely disturbing that an individual can be found guilty and labeled a homosexual without a modicum of corroborative evidence." Id. Because they concluded that no charges against Mr. Turner had been established by a preponderance of the evidence, the majority recommended to the Secretary of the Navy that Mr. Turner's NJP be overturned, that his discharge be voided and that his record be corrected to show that he served until the expiration of his enlistment and then was honorably discharged. Id. at 612-13.
One member of the BCNR dissented, deferring to Captain Frank and the ADB on the matter of witness credibility. BCNR Report, A.R. at 614-15. He concluded that Captain Frank had "made a reasonable determination [at the NJP], given Petitioner's silence, that his guilt was supported by a preponderance of the evidence," and that there was "sufficient credible information" to support the ADB's findings. Id. at 614. Principal Deputy Assistant Secretary of the Navy Karen S. Heath, having been designated to review the matter by the Secretary of the Navy, approved the minority findings without explanation. Id. at 615.
Upset at the rejection of the BCNR majority report, Mr. Turner contacted Senator Christopher Dodd of Connecticut and Senator Patty Murray of Washington. See A.R. at 11-14. Mr. Turner provided the two senators with a copy of a July 2, 1996 email message from Maurer that, according to Mr. Turner, demonstrated Maurer's desire to recant his testimony. Id. at 14. Senator Dodd requested that the Navy revisit Mr. Turner's case. Letter from Senator Christopher Dodd to Secretary of the Navy John H. Dalton (Aug. 23, 1996), A.R. at 4. Assistant Secretary of the Navy Bernard Rostker advised Senator Dodd that he had reviewed the case and concurred in the decision of Deputy Assistant Secretary Heath. Letter from Assistant Secretary of the Navy Bernard Rostker to Senator Christopher Dodd (Jan. 7, 1997), A.R. at 1-2.
II. DISCUSSION
A. Mr. Turner's Constitutional Arguments
Mr. Turner asserts that the Navy's investigation and punitive proceedings deprived him of due process of law in violation of the Fifth Amendment (Count II); that he was deprived of equal protection of the laws in violation of the Fifth Amendment because, as a suspected homosexual, he was deprived of the same rights, privileges and protections that are accorded to similarly situated heterosexuals (Count III); and that he was deprived of the right to free speech and due process by being punished for his allegedly indecent remarks to his three accusers (Count IV). In his cross-motion for summary judgment, however, Mr. Turner explicitly requests that the Court not consider his Fifth Amendment equal protection claim or his First Amendment free speech claim at this time. See Plaintiffs Memorandum in Support of His Cross-Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment at 2 n.2. He suggests that, because the Court is able to base its decision solely on statutory grounds, it "can and should" avoid deciding these constitutional claims. Id. Because Mr. Turner has not fully briefed these issues, and because the Court's disposition of Mr. Turner's APA claims results in the remand of this matter to the Secretary of the Navy under the APA, the Court agrees that it need not reach his equal protection and free speech claims. (3) For the same reasons, the Court also does not reach the due process claims set forth in Count II. See Lyng v. Northwest Indian Cemetery Protective Ass'n. 485 U.S. 439, 445-46 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them") (citations omitted).
B. Mr. Turner's APA Claims Mr. Turner has asked the Court to review four separate actions taken by the Navy: (1) the Navy's investigation of him under its guidelines for inquiries into homosexual conduct, (2) his commanding officer's decision to punish him through the NJP proceeding or "captain's mast," (3) his less than honorable discharge after a hearing before the ADB, and (4) the decision of the Secretary of the Navy to reject the recommendation of the majority of the BCNR to reverse the NJP and ADB decisions. The Court will not second-guess Captain Frank's decision to undertake an investigation, the conduct of the investigation by Chief Clanahan, or the "captain's mast," which are all essential to on-site discipline in the military and thus generally outside the normal purview of judicial review. The only cognizable question with respect to these matters is whether the Navy was bound to follow its own "Don't Ask, Don't Tell" policy guidelines during the investigation and failed to apply them properly. The Court does conclude, however, that the ADB decision and the rejection of the BCNR recommendation are justiciable final agency actions that are properly before the Court.
1. The Investigation And The NJP
Courts approach the task of reviewing military actions with hesitation and with great deference. As the Supreme Court has noted:
[J]udges are not given the task of running the Army. The responsibility for setting up channels through which [complaints of discrimination, favoritism, or other objectionable handling of military personnel] can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.
Orloff v.Willoughby. 345 U.S. 83, 93-94 (1953): see also Goldman v. Weinberger. 475 U.S. 503. 507 (1985); Kreis v. Secretary of the Air Force. 866 F.2d 1508, 1511 (D.C. Cir. 1989); Charette v. Walker. 996 F.Supp. 43, 49 (D.D.C. 1998). "[Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the Military Establishment." Chappell v. Wallace. 462 U.S. 296, 300 (1982).
Because Captain Frank's decision to initiate the investigation. Chief Clanahan's conduct of the investigation and the "captain's mast" conducted by Captain Frank are so central to a superior officer's right to discipline enlisted personnel under his command, they generally are the type of matters that the civilian courts seek to avoid. It is inappropriate for a court to interfere in or attempt to supervise the military's decision to initiate an investigation and the investigative methods employed, particularly when the investigation is undertaken by the military of its own personnel with an eye towards potential discipline. See Chappell v. Wallace. 462 U.S. at 300; Orloff v. Wilhoughby. 345 U.S. at 94; Dilley v. Alexander. 603 F.2d 914, 920 (D.C. Cir. 1979); Southern Union Gas Co. v. FERC. 840 F.2d 964, 969 (D.C. Cir. 1988). Similar considerations suggest that a court should not second guess disciplinary decisions made by a captain on board ship. See Hagarty v. United States. 449 F.2d 352, 362 (Ct. Cl. 1971). The Court therefore will not review any discretionary decisions made by Captain Frank and Chief Clanahan in initiating or conducting the investigation of Mr. Turner or the NJP proceeding.
On the other hand, if the military has adopted rules or regulations that purposefully limit its discretion, a court may review its actions in the investigative or disciplinary context to ensure that they are consistent with the military's own laws and regulations. Even the military "is not at liberty to ignore its own laws . . . and agency action in contravention of applicable statutes and regulations is unlawful .... It is the duty of the federal courts to inquire whether an action conforms to the law, or is instead arbitrary, capricious, or contrary to the statutes and regulations governing the agency." Dilley v. Alexander. 603 F.2d at 920 (citations omitted); See also Hagarty v. United States. 449 F.2d at 362. The only questions before the Court therefore are whether the Navy has limited its discretion through Department of Defense Directive 1332.14, which embodies and implements the "Don't Ask, Don't Tell" policy, and whether the "investigative guidelines" for inquiries into homosexual conduct must be followed and have been violated.
Directive 1332.14 provides, inter alia, that homosexual conduct is grounds for separation from the service, that an investigation into homosexual conduct may be undertaken only when there is "credible information" from a "reliable person" that there is a basis for discharge and that separation is warranted if it is found that a service man or woman solicited another to engage in a homosexual act. Investigative Guidelines at 1-9, 4-2. Mr. Turner asserts that the Navy's initiation of and conduct during the investigation violated these guidelines in at least three respects: (1) Captain Frank had no credible information on which to initiate the investigation because King was known to be unreliable and lacking in credibility, Poore came forward only after hearing of King's allegations, and Maurer was young and vulnerable (and seeking early release) and did not come forward of his own volition; (2) Captain Frank and Chief Clanahan abused their authority in the manner in which they conducted the investigation; and (3) Clanahan "asked" Maurer about his sexual orientation in express violation of the "Don't Ask, Don't Tell" policy. Mr. Turner also argues that the same violations of the guidelines infected the conduct of the NJP. Defendants maintain that the Court should not reach the substance of any of these claims because the investigative guidelines create "no substantive or procedural rights," Investigative Guidelines at 4-3, and therefore are neither binding on the Navy nor enforceable by this Court.
An agency must act consistently with its own procedures only when "the agency intended to establish a 'substantive' rule, one which is not merely interpretative but which creates or modifies rights that can be enforced against the agency." National Latino Media Coalition v. FCC. 816 F.2d 785, 788 n.2 (D.C. Cir.1987). "[Enunciating a policy is simply not the same as creating a binding substantive right.... The touchstone for enforceability is agency intent." Jackson v Culinary School of Washington. 27 F.3d 573, 584 & n.21 (D.C. Cir. 1994), vacated on other grounds. 515 U.S. 1139 (1995). Whether a policy statement is enforceable turns on "the agency's intent to be bound." Vietnam Veterans of America v. Secretary of the Navy. 843 F.2d 528, 538 (D.C. Cir. 1988): see Building Industry Ass'n v. Babbitt. 979 F.Supp. 893, 904-05 (D.D.C. 1997) (quoting Jackson v. Culinary School of Washington. 27 F.3d at 584). In the absence of an intent to be bound to a particular legal position, "the agency remains free in any particular case to diverge from whatever outcome the policy statement or interpretative rule might suggest." Vietnam Veterans of America v. Secretary of the Navy. 843 F.2d at 537: see Syncor Int'l Corp. v. Shalala. 127 F.3d 90, 94 (D.C. Cir. 1997).
From the very beginning, the Department of Defense has made clear its intent not to be substantively or procedurally bound by the "Don't Ask, Don't Tell" investigative guidelines. The final paragraph of the guidelines states that "[t]he procedures in this enclosure create no substantive or procedural rights," Investigative Guidelines at 4-3, a position consistent with the legislative history of the statute by which Congress created the "Don't Ask, Don't Tell" policy. See Section 571 of the National Defense Authorization Act of 1994, Pub. L. 103-160, codified at 10 U.S.C. ß 654. (4) During its consideration of the "Don't Ask, Don't Tell" policy, the Senate Armed Services Committee reviewed a draft of the guidelines and questioned whether the guidelines' disclaimer would ensure that the guidelines would not "give an individual the right to invalidate an administrative or judicial proceeding ... by alleging that an investigation was conducted in a manner contrary to the policy." S. Rep. No. 103-112 at 290-91 (1993) (report accompanying National Defense Authorization Act of 1994). The committee considered whether to recommend legislation to ensure that "the guidelines not be misinterpreted to establish the grounds for challenging administrative or disciplinary proceedings," but ultimately decided instead to rely on the representation of the Department of Defense that it would not be bound. JsL at 291. In particular, the General Counsel of the Defense Department testified that the guidelines were "not intended to create any substantive or procedural rights to encumber the necessary flexibility that the military must have in approaching the management of such a large group of personnel." Id. (testimony of Jamie S. Gorelick). Since the Department of Defense has expressed its clear intent not to be bound by the investigative guidelines, Mr. Turner has no enforceable substantive or procedural rights under the guidelines that can be enforced by this Court. See Vietnam Veterans of America v. Secretary of the Navy. 843 F.2d at 537. (5)
2. The Administrative Discharge Board
Mr. Turner also challenges the ADB's decision to recommend his discharge from the Navy. Of the three incidents that formed the basis of its decision, two of them were based on Maurer's testimony. While the ADB also found that Mr. Turner had used indecent language with and solicited homosexual conduct from Poore, it is unlikely that Mr Turner would have been discharged from the Navy on the basis of an uncorroborated allegation of a sole indecent proposal. (6) Thus, the ADB findings and conclusions are primarily based on Maurer's testimony and must rise or fall on his credibility.
Mr. Turner argues that Maurer's credibility was undermined by his initial hesitation in making his allegations and the intimidating manner in which his statement was elicited by Clanahan. Maurer also was seeking an early release from the Navy when he gave his initial statement and was granted the release soon thereafter. ADB Proceeding, A.R. at 96. Mr. Turner speculates that the Navy used the pendency of this request to influence Maurer's testimony. As a result, Mr. Turner argues that Maurer's testimony was unreliable, rendering the ADB's acceptance of Maurer's story arbitrary and capricious.
The Court cannot agree. While Maurer admitted to the ADB that he felt intimidated when interviewed and that he was seeking an early release from the Navy, he was firm in his denials that his testimony was fabricated, coerced or provided in exchange for an early release. ADB Proceedings, A.R. at 96, 100-01, 106-08. He explained his reluctance about coming forward, stating that he hesitated "[b]ecause [he] was humiliated by the fact of what could have happened." Id. at 107. As in any adversary proceeding, all of these factors go to assessing the witness' credibility, a matter for the fact-finder, which in this case is the ADB, not this Court. While courts have the "power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations," it may set aside the military's discharge decision only if it was arbitrary and capricious, not in accordance with law or unsupported by the evidence. Matlovich v. Secretary of the Air Force. 591 F.2d 852, 859 (D.C. Cir. 1978); see Dronenburg v. Zech. 741 F.2d 1388, 1390 (D.C. Cir. 1984). "The Court may not reweigh the evidence and 'replace the [military's] judgment regarding the weight and validity of the evidence with its own.'" Dunn v. Shalala. 866 F.Supp. 595, 598 (D.D.C. 1994) (quoting Davis v. Heckler. 566 F.Supp. 1193, 1195 (D.D.C. 1983));.see Charette v. Walker. 996 F. Supp. at 57 (role of court is "not to reweigh the evidence or to function as a super correction panel"). The Court cannot say that the ADB was arbitrary and capricious or abused its discretion in concluding, as it did, that Maurer was a credible witness.
3. The Navy's Review of the BCNR Report
Mr. Turner's final claim is that Deputy Assistant Secretary Heath acted in an arbitrary and capricious manner when she summarily approved the BCNR minority report without comment or explanation. (7) Actions taken by the Secretary of the Navy or his designee after evaluating the findings of the BCNR are final agency actions reviewable under the Administrative Procedure Act to determine if they are arbitrary, capricious or contrary to law. See Kreis v. Secretary of the Air Force. 866 F.2d at 1514-15; Miller v. Lehman. 801 F.2d 492, 496 (D.C. Cir. 1986). The Secretary's decision on review of a correction board's findings, however, is entitled to even more deference than are other agency actions. Kreis v. Secretary of the Air Force. 866 F.2d at 1513-14 ("unusually deferential standard of review"). The governing statute provides that the Secretary of the Navy, acting through boards of civilians, may correct a military record when he "considers it necessary to correct an error or remove an injustice." 10 U.S.C. ß 1552(a). Because of the way the statute frames the issue, "[i]t is simply more difficult to say that the Secretary has acted arbitrarily if he is authorized to act 'when he considers it necessary to correct an error or remove an injustice' . . . than it is if he is required to act whenever a court determines that certain objective criteria are met, i.e., that there has been an error or injustice." Kreis v. Secretary of the Air Force. 866 F.2d at 1514: see also Mudd v. Caldera. 1998 WL 761481 at 7 (D.D.C. Oct. 29. 1998): Daleandro v. Dalton. 948 F.Supp. 95, 97 (D.D.C. 1996).
Despite this unusual level of deference, the Court still must undertake a searching review of the Navy's actions to determine if its exercise of discretion was arbitrary, capricious or contrary to law. Wolfe v. Marsh. 835 F.2d 354, 358-59 (D.C. Cir. 1987), .cert. denied. 488 U.S. 942 (1988). To perform its proper function, the Court must at the very least insist that the Secretary "give a reason that the court can measure, albeit with all due deference." Kreis v. Secretary of the Air Force. 866 F.2d at 1514-15. Although a reviewing court generally will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned," Miller v. Lehman. 801 F.2d at 497 (quoting Bowman Transportation. Inc. v. Arkansas-Best Motor Freight System. Inc. 419 U.S. 281, 286 (1974)), if the court "simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Florida Power & Light Co. v. Lorion. 470 U.S. 729, 744 (1985); Daleandro v. Dalton. 948 F.Supp. at 96 (decision of Secretary of the Navy upheld where Secretary's designee "elaborated upon her conclusion").
In this case. Deputy Assistant Secretary Heath has given absolutely no indication of the grounds on which she adopted the minority report. Without providing any insights into her reasons, she merely indicated that she had "[r]eviewed and approved" the minority report. BCNR Report, A.R. at 615. The Court cannot make any judgment about her findings, her reasoning or her analysis because she provided none. Remand to the Navy therefore is appropriate.
On remand, the Secretary of the Navy must consider and respond to each of the arguments made by plaintiff unless any such argument is "frivolous on its face." Mudd v. Caldera. 1998 WL 761481 at *7: see also Frizelle v. Slater. Ill F.3d 172, 177 (D.C.Cir. 1997). Mr. Turner's arguments regarding Maurer's credibility and the reliability of his testimony in the circumstances are not frivolous, especially in light of recent indications that Maurer might wish to recant his testimony. See A.R. at 11-14. In addition, because the minority report that Deputy Assistant Secretary Heath approved itself did not address or analyze portions of the reasoning of the majority on important issues or identify the record evidence on which it relied to reject the majority's findings of "no evidence" with respect to certain matters, see BCNR Report, A.R. at 611-12, the Secretary of the Navy may conclude on his re-evaluation of the evidence and arguments presented that Deputy Assistant Secretary Heath's rubber stamp ruling cannot in fact be sustained. See Mudd v. Caldera. 1998 WL 761481 at * 10-11. After considering all non-frivolous arguments and the record evidence afresh, the Secretary must decide how he assesses the record and whether to accept or reject the arguments presented and then articulate reasoned bases for his ultimate decision. See Miller v. Lehman. 801 F.2d at 497; Milk Industry Foundation v. Glickman. 955 F. Supp. 8 (D.D.C. 1997).
An Order consistent with this Opinion is entered this same day.
SO ORDERED.
PAUL L. FRIEDMAN
United States District Judge
[Footnotes to Decision]
1. King also accused Mr. Turner of writing unsupported favorable performance evaluations for him even though King had never completed the assigned tasks. Statement of John T. King, A.R. at 48. This allegation is not at issue in this case.
2. These Guidelines embody and implement the Defense Department's so-called "Don't Ask, Don't Tell" policy. See 10 U.S.C. ß 654.
3. The Court notes that every circuit that has considered challenges to the "Don't Ask, Don't Tell" policy on equal protection and free speech grounds has upheld the policy as constitutional. See Thomasson v. Perry. 80 F.3d 915 (4th Cir.) (en banc), cert. denied. __ U.S. __, 117 S.Ct. 358 (1996); Richenberg v. Perry. 97 F.3d 256 (8th Cir. 1996). cert. denied. __ U.S. __, 118 S.Ct. 45 (1997); Philips v. Perry. 106 F.3d 1420 (9th Gir. 1997): Able v. United States. 155 F.3d 628 (2nd Cir. 1998).
4. The disclaimer is similar to the statement in the United States Attorneys' Manual stating that the manual "is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party in any matter." United States Attorneys' Manual 9-2 (1997). Courts have repeatedly held that this disclaimer is sufficient to make the manual's announced policy against successive prosecutions in both state and federal courts unenforceable against federal prosecutors. See. e.g.. United States v. Lester. 992 F.2d 174, 176 (8th Cir. 1993); United States v. Gourley. 835 F.2d 249 (10th Cir. 1987); United States v. Ng. 699 F.2d 63 (2nd Cir. 1983): Nichols v. Reno. 931 F. Supp. 748, 751-52 (D. Colo. 1996).
5. If the guidelines were enforceable, Mr. Turner would lack standing to raise the issue that Maurer's rights were violated when Maurer was asked about his sexual orientation during Chief Clanahan's investigation. See. e.g.. Lujan v. Defenders of Wildlife. 504 U.S. 555, 561 (1992) (standing found only when there is an invasion of plaintiffs "legally protected interest"); see also BCNR Report, A.R. at 611.
6. It is a violation of Article 134 of the Uniform Code of Military Justice to use "indecent language." United States Manual for Courts-Martial at IV-94 (1998). The indecent language allegedly used by Mr. Turner, however, is hardly language that one would think would make a sailor blush. Furthermore, it is questionable whether any evidence exists that Mr. Turner solicited Poore. Even the ADB found that Turner's conduct was perceived as "horseplay," ADB Proceedings, A.R. at 158-59, and the BCNR majority "could find no evidence . . . that [Poore] had been solicited by [Mr. Turner]." BCNR Report, A.R. at 611.
7. As both parties assume in their arguments, Deputy Assistant Secretary Heath's approval of the minority report is the final agency action at issue in this case. Under the procedures for reviewing the BCNR report, her decision represented the completion of the decision-making process and directly affected Mr. Turner. See Franklin v. United States. 505 U.S. 788, 797 (1992). Assistant Secretary Rostker's letter to Senator Dodd is a post hoc discussion of the final agency action and has no significance under the regulatory scheme for the Navy's review of the BCNR Report. As the government conceded at oral argument, one cannot even tell from the record if Assistant Secretary Rostker read the BCNR reports.
ORDER
Upon careful consideration of the parties' cross-motions for summary judgment, the oppositions and replies thereto, the supplemental filings and the oral arguments of counsel, and for the reasons stated in the Opinion issued this same day, it is hereby
ORDERED that plaintiffs motion for summary judgment is GRANTED and defendants' motion for summary judgment is DENIED with respect to Count I; it is
FURTHER ORDERED that the parties' cross-motions for summary judgment are DENIED without prejudice with respect to Counts II, III and IV; it is
FURTHER ORDERED that JUDGMENT is entered for plaintiff on Count I; it is
FURTHER ORDERED that the decision of the Secretary of the Navy is VACATED, and it is
FURTHER ORDERED that this case is REMANDED to the Secretary of the Navy for proceedings not inconsistent with the Court's Opinion and this Order.
PAUL L. FRIEDMAN
United States District Judge