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HOLMES v. CALIFORNIA ARMY NAT'L GUARD

March 29, 1996

FIRST LIEUTENANT ANDREW HOLMES, Plaintiff,
v.
CALIFORNIA ARMY NATIONAL GUARD; MAJOR TANDY K. BOZEMAN, in his official capacity; GOVERNOR PETE WILSON, in his official capacity; UNITED STATES ARMY NATIONAL GUARD; UNITED STATES OF AMERICA; and WILLIAM J. PERRY, SECRETARY OF DEFENSE, in his official capacity, Defendants.



The opinion of the court was delivered by: ARMSTRONG

 OVERVIEW

 Plaintiff, First Lieutenant Andrew Holmes ("plaintiff" or "Lt. Holmes") brings this action to challenge his discharge from the California Army National Guard ("CANG") and the United States Army National Guard ("USANG"). Lt. Holmes was expelled from service pursuant to the military's current policy governing homosexuals after plaintiff acknowledged his homosexuality to his commanding officer. Plaintiff has named two sets of defendants; the USANG, the United States of America, William J. Perry, and Secretary of Defense (collectively referred to as the "Federal defendants"), and the CANG, Major Tandy Bozeman, and Governor Pete Wilson (collectively referred to as the "California defendants"). His amended complaint alleges claims based on state and federal law.

 Presently before the Court are: (1) the California defendants' Motion to Dismiss First Amended Complaint Pursuant to Rules 12(b)(6) and 12(e); (2) the Federal defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment; (3) and plaintiff's Cross-motion for Summary Adjudication as to Federal Defendants and Motion for Summary Adjudication as to California Defendants. Having read the papers filed in connection with these motions and considered the arguments of counsel, the Court GRANTS IN PART AND DENIES IN PART each of the parties' motions.

 BACKGROUND

 I. Military Policy Regarding Gays

 The United States Military has a long history of precluding homosexuals from serving in this country's armed forces. It was not until 1981, however, that the Department of Defense formalized its policy with the implementation of revised DOD Directive 1332.14 (1981) which mandated the discharge of all known homosexuals from military service. Through this Directive, the military officially stated for the first time that "homosexuality is incompatible with military service." DOD Directive 1332.14 (1981).

 The Act contains six subsections, with the main "policy" provisions set forth in subsection (b). Subsection (b) reads as follows:

 
(b) Policy.--A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:
 
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that--
 
(A) such conduct is a departure from the member's usual and customary behavior;
 
(B) such conduct, under all the circumstances, is unlikely to recur;
 
(C) such conduct was not accomplished by use of force, coercion, or intimidation;
 
(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
 
(E) the member does not have a propensity or intent to engage in homosexual acts.
 
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
 
(3) That the member has married or attempted to marry a person known to be of the same biological sex.

 10 U.S.C. § 654(b) (Supp. 1994) (emphasis added). *fn2" The primary justification for these measures is that "the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standard of morale, good order and discipline, and unit cohesion that are the essence of military capability." 10 U.S.C. § 654(a)(15) (Supp. 1994).

 The DOD's implementing Directives 1332.14 and 1332.30 are comparable to the Act. *fn3" These regulations provide, in relevant part, as follows:

 
Homosexual conduct is grounds for separation from the Military Services . . . . Homosexual conduct includes homosexual acts, [or] a statement by a member that demonstrates a propensity or intent to engage in homosexual acts.. . . A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter, and it is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in section C.1.

 See DOD Directive 1332.30 at 2-1 (emphasis added); DOD Directive 1332.14 at 1-9.

 Under the new policy, the military no longer actively initiates investigations of service members to determine whether they are homosexual, DOD Directive 1332.30 at 8-1, and prospective new recruits are no longer questioned about their sexual orientation, DOD Directive 1304.26 at 1-5. However, a service member may not voluntarily acknowledge that he or she is gay without significant consequences.

 If a service member states that he or she is homosexual, that statement alone creates a "rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." DOD Directive 1332.14 at 1-10; Id. 1332.30 at 2-2 (same language applied to officers). The service member will be discharged unless he or she can prove by a preponderance of the evidence that "he or she does not engage in, have a propensity to engage in or intend to engage in homosexual acts." DOD Directive 1332.14 at 1-10, 4-3; Id. 1332.30 at 2-2, 2-3.

 II. Facts and Proceedings

 A. Lt. Holmes' Role in the CANG and USANG

 The material facts of this case are not in dispute. Lt. Holmes was an officer in the CANG and the USANG. He enrolled in the CANG in 1986. (Holmes Decl. P 2.) In March 1989, he was sworn in as an officer of the CANG, and thereafter, as an officer in the USANG. (Id.) During his tenure with the CANG, Lt. Holmes was promoted to First Lieutenant and received the Army Achievement Medal, the Army Reserve Components Achievement Medal and the National Defense Service Ribbon while deployed to Germany in support of Operation Desert Shield and Operation Desert Storm. (Id. P 3, 4.) His performance ratings have been uniformly exemplary, and his unit has been characterized as a "shining example of cohesion." (Id. P 4.)

 On June 3, 1993, Lt. Holmes sent a memorandum to his CANG commanding officer which stated that, "As a matter of conscience, honesty and pride, I am compelled to inform you that I am gay." On that basis, Lt. Holmes' commanding officer initiated a request that Lt. Holmes' federal recognition as an officer be withdrawn. (Id. PP 5-6.)

 On May 21, 1994, discharge proceedings were commenced against Lt. Holmes. The Federal Recognition Board ("the Board") considered his case under the new policy purporting to exclude gays from the military based on their conduct. (See Administrative Record.) The Board found that Lt. Holmes' admission that he is gay created a rebuttable presumption that he had engaged in or was likely to engage in homosexual acts, and that Lt. Holmes had failed to rebut that presumption. Despite Lt. Holmes' outstanding record of service, the Board recommended the withdrawal of his federal recognition. Based solely upon the loss of federal recognition, the CANG discharged Lt. Holmes.

 B. The Instant Litigation

 On February 28, 1995, Lt. Holmes commenced the instant action against the Federal and California defendants. Lt. Holmes filed a First Amended Complaint on April 17, 1995 which alleges thirteen claims for relief based on federal and state law. The first seven claims are directed solely against the California defendants, and allege violations of: (1) his right to equal protection under the California Constitution; (2) his right to freedom of speech under the California Constitution; (3) his right to privacy under the California Constitution; (4) California Labor Code §§ 1101, 1102, and 1102.1; (5) California Government Code § 18500(c)(5); (6). Executive Order B-54-79; and (7) the Equal Protection Clause of the 14th Amendment to the United States Constitution.

  The remaining six claims of the First Amended Complaint are premised on the United States Constitution and are alleged against all defendants. These claims are based on the doctrines of equal protection, free speech and free expression, vagueness and overbreadth, intimate associations, substantive due process, and privacy. *fn4" Lt. Holmes seeks, inter alia, a declaration that the Act and Directives are unconstitutional as applled to him under both the United States and California Constitutions, a preliminary and permanent injunction enjoining the defendants from enforcing the Act and Directives, immediate reinstatement of plaintiff's officer status with the USANG and reinstatement to the CANG.

 C. Substantive Motions Before the Court

 The parties have filed various motions to resolve the claims alleged by Lt. Holmes in his First Amended Complaint. Specifically, the California defendants move for dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). *fn5" In their memorandum, the California defendants appear to advance the following arguments in support of their motion to dismiss: (1) plaintiff's claims are moot; (2) the California defendants' are not legally responsible for Holmes' discharge because their actions are mandated by federal law; (3) plaintiff's claims are barred by the doctrine of sovereign immunity as set forth in the Eleventh Amendment; and (4) each of plaintiff's state law causes of action fails to state a claim upon which relief may be granted.

 The Federal defendants have separately filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, which addresses the substantive merits of each of plaintiff's federal claims. In response, plaintiff has filed a Cross-Motion for Summary Adjudication as to Federal Defendants and Motion for Summary Adjudication as to California Defendants. Plaintiff's motion addresses his federal claims only.

 In light of the myriad issues presented, the Court will first discuss whether Lt. Holmes has alleged viable state law claims against the California defendants. The Court will then address Lt. Holmes' federal claims to determine whether they are subject to dismissal, or whether they should be summarily adjudicated in favor of plaintiff. That discussion will commence with an analysis of the defenses raised by the California defendants, followed by a substantive discussion of each of the federal claims as they relate to all defendants.

 Before turning to the substantive merits of plaintiff's claims, however, the Court must assess plaintiff's request to strike the California defendants' untimely opposition to plaintiff's cross-motion for summary adjudication.

 D. Plaintiff's Motion to Strike

 On June 23, 1995, the Court entered a scheduling order pursuant to the stipulated request of the parties. *fn6" This stipulated order provided that plaintiff was required to file his opposition to the defendants' motions along with a cross-motion for summary judgment on his federal claims by June 20, 1995. The order further provided that the defendants were required to file their replies in support of their respective motions and their oppositions to plaintiff's cross-motion by no later than July 3, 1995. Plaintiff was required to file his replies to the defendants' oppositions by no later than July 11, 1995.

 Plaintiff timely filed a combined opposition to the Federal defendants' motion and cross-motion for summary adjudication of his federal claims. However, the California defendants did not file their opposition to plaintiff's cross-motion until July 10, 1995, a full week after their brief was due, nor did they seek leave of the Court before doing so. Consequently, Lt. Holmes now moves to strike the California defendants' opposition to his cross-motion for summary adjudication of his federal claims on the ground that it was filed outside the stipulated scheduling order issued by the Court and is therefore untimely.

 The district court has the discretion to strike untimely papers where the late-filing party fails to demonstrate excusable neglect. Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1519 (9th Cir. 1983), cert. denied, 465 U.S. 1081, 79 L. Ed. 2d 765, 104 S. Ct. 1446 (1984) (district court did not abuse its discretion in striking untimely affidavits in opposition to summary judgment motion where party failed to request extension of time or show excusable neglect); accord Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7-8 (1st Cir. 1990) ("the district court was not obliged to consider appellant's untimely opposition in applying the Rule 56 standard.") (citing Wood, 705 F.2d at 1519). Here, the California defendants argue that while the stipulated scheduling order provided for the filing of a "motion for summary judgment", it did not contemplate a "motion for summary adjudication." As such, the California defendants argue that their opposition to plaintiff's motion was not governed by the stipulated scheduling order, and that their opposition was timely under the Local Rules then in effect.

 The rationalization proffered by the California defendants strains credulity. The stipulated scheduling order clearly stated that plaintiff intended to file a summary judgment motion on his federal claims -- which is precisely what plaintiff filed. The fact that the motion was styled as a motion for "summary adjudication" as opposed to a motion for "summary judgment" is a distinction without a difference. Both motions are cognizable under Federal Rule of Civil --Procedure 56 and are governed by the same standard of review. See United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir. 1984) (finding that the substance of a motion, as opposed to how it is styled, determines how the motion should be construed). *fn7" Thus, the Court finds the California defendants' proffered explanation for their failure to comply with the stipulated scheduling order issued by the Court to be unacceptable.

 The California defendants' inexplicable failure to comply with the stipulated scheduling order has unnecessarily resulted in additional expenditures of resources by counsel for the plaintiff. Indeed, the California defendants' justification for the late filing comes perilously close to violating Rule 11. Under the circumstances presented, the Court finds that the California defendants' papers filed in opposition to Lt. Holmes' cross-motion for summary adjudication of his federal claims should be stricken from the record.

 In any event, the Court notes that consideration of the California defendants' untimely opposition brief would hot have altered the outcome of this action. Their opposition brief largely repeats the arguments raised in their motion to dismiss. Moreover, like their other papers, the California defendants' opposition contains a plethora of improper invective and ad hominem attacks on the plaintiff, and was, for the most part, lacking in any cogent legal analysis. *fn8"

 I. Standards of Review

 A. Summary Judgment

 Under Federal Rule of Civil Procedure 56, summary judgment is warranted against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In opposing a summary judgment motion, the nonmoving party must come forward with specific facts demonstrating a genuine factual issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, an opposition which fails to identify and reference triable facts is insufficient to preclude the Court's granting of a properly supported summary judgment motion. See Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988). Nonetheless, any inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

 B. Failure to State a Claim

 Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss should not be granted unless it appears beyond a doubt that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). For purposes of such a motion, the complaint is construed in a light most favorable to the plaintiff and all properly pleaded factual allegations are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); Everest and Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir. 1994).

 II. State Law Claims

 Plaintiff has advanced six claims for relief against the California defendants which are premised solely on state law. In their motion to dismiss, the California defendants contend that these claims are barred by the doctrine of sovereign immunity. The Court agrees. Under the Eleventh Amendment, federal courts are barred from deciding state law claims against a state or its officials. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); accord Han v. U.S. Dept. of Justice, 45 F.3d 333, 338 (9th Cir. 1995). *fn9" Unless a state has waived its Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued regardless ...


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