72 Fair empl.prac.cas. (Bna) 93, 69 Empl. Prac. Dec. P 44,289, 96 Cal. Daily Op. Serv. 7424, 96 Daily Journal D.A.R. 12,199 Margarethe Cammermeyer, Colonel v. William J. Perry, Secretary of Defense Togo D. West, Secretary of the Army United States of America, (Two Cases)
Docket: 94-35600
Court: Court of Appeals for the Ninth Circuit; October 7, 1996; Federal Appellate Court
Colonel Margarethe Cammermeyer, a decorated nurse with extensive military service, sought admission to the Army War College, necessitating a Top Secret security clearance. During the interview by the Defense Investigative Service, she disclosed her sexual orientation as a lesbian, stating it is an emotional orientation toward women that does not imply sexual activity. At that time, she was serving in the Washington State National Guard, which allowed her to retain her position, conditional upon not being forced to discharge her by the Department of the Army. However, six months later, the Army initiated proceedings to revoke her federal recognition, making her ineligible for military service. In a notable intervention, Washington Governor Booth Gardner wrote to Secretary of Defense Dick Cheney, advocating for Cammermeyer and condemning the potential termination of her distinguished military career. Despite her commendable service and leadership, the Army ultimately withdrew her federal recognition, leading to her discharge from the National Guard.
Cammermeyer filed a lawsuit challenging her discharge from the Army, asserting violations of her rights under the Equal Protection Clause, Freedom of Speech, Due Process, Privacy, and the Separation of Powers and Federalism principles. The district court ruled in favor of Cammermeyer on her Equal Protection and Due Process claims, ordering her reinstatement, expungement of records related to her sexual orientation, and an injunction against actions taken based on her homosexual status. The court declared her discharge and Army Reg. 135-175 unconstitutional. Following the appeal, Cammermeyer was reinstated, and the challenged regulations were replaced by new policies implementing the "don't ask/don't tell" approach. In a related case, Meinhold v. United States Dep't of Defense, it was determined that regulations similar to Army Reg. 135-175 did not mandate discharge solely based on an individual's sexual orientation. The defendants conceded that Cammermeyer’s separation was improper but contested the district court's constitutional findings. However, since Cammermeyer was reinstated and the regulation was rescinded, the appeal was deemed moot, as federal courts can only address live controversies affecting the rights of the parties involved.
Cammermeyer asserts that her case should be evaluated on its merits based on the precedent established in City of Mesquite v. Aladdin's Castle, Inc., which allows federal courts to assess the legality of a challenged practice even after a voluntary cessation by the defendant. The Supreme Court emphasized the risk of a city potentially reinstating an unconstitutional ordinance if a case is dismissed as moot, as evidenced by the city's prior conduct. However, it has been established that statutory changes typically render cases moot, even with the possibility of future reenactment. The exceptions to this rule are rare and require a high certainty of reenactment, which does not apply here since Cammermeyer has not demonstrated that the government intends to resume any allegedly illegal actions against her. Furthermore, her reinstatement by the defendants indicates no current threat of injury, and her situation does not involve a claim of an injury that is inherently short-lived. Cammermeyer's reference to her claim for attorneys' fees does not prevent the case from being moot, as such claims can exist independently but do not revive a moot controversy.
Meinhold's case highlighted a nationwide injunction against the Department of Defense's "don't ask/don't tell" policy, which barred discharges or enlistment denials based solely on sexual orientation unless there was disruptive conduct affecting military operations. This injunction created a pressing legal issue that warranted relief despite changes in regulations. The defendants in Meinhold contended that the injunction impeded their ability to implement the new policy. In contrast, the defendants in the current case challenge only the district court's declaration that Cammermeyer's discharge was unlawful, without clarifying the implications of a merits decision.
The appeal was deemed moot, leading to a discussion on whether to vacate the lower court's judgment. While it is typically standard to vacate judgments in moot cases, recent rulings emphasize that this should be determined by equitable principles rather than automatically. A key consideration is whether the party seeking vacatur caused the mootness. Here, the defendants conceded to Cammermeyer's reinstatement and altered the contested regulation, thus rendering the case moot. Past cases have denied vacatur under similar circumstances, regardless of the intent to moot the appeal.
The court found no distinct equitable factors that would justify vacatur in this instance and therefore declined to grant it. However, it noted that the district court retains the authority to vacate its own judgment following a separate equitable assessment. The case was remanded to the district court for this purpose.
The legal document indicates that a case has been dismissed and remanded under Army Regulation 135-175, which implements Department of Defense Directive 1332.30. This regulation allows for separation of military members based on preservice, prior service, or current service conduct, specifically noting that a member who identifies as homosexual or bisexual must be separated unless further findings indicate otherwise. The case's mootness is contested by both parties, but the court must assess jurisdiction independently of these claims, referencing precedents such as Kremens v. Bartley and Nome Eskimo Community v. Babbitt. Several related cases are cited, indicating ongoing legal discussions regarding the treatment of sexual orientation within military regulations. Additionally, the Supreme Court's stay in the Meinhold case is mentioned, which was limited to individuals other than Meinhold and applicable only during the appeal process.
