The HONORABLE LYLE E. STROM, United States District Judge 1

for the District of Nebraska.

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No. 95-4181

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Richard F. Richenberg, Jr., *

*

Plaintiff - Appellant, *

*

v. *

* Appeal from the United States

William J. Perry, Secretary of * District Court for the

Defense, in his official * District of Nebraska.

capacity; Sheila Widnall, *

Secretary of the Air Force, * [PUBLISHED]

in her official capacity, *

*

Defendants - Appellees. *

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Submitted: December 21, 1995

 Filed: December 26, 1995

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Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________

PER CURIAM.

Air Force Captain Richard F. Richenberg, Jr., commenced this action

to enjoin the Air Force from discharging him, after a full administrative

hearing, because he has a propensity or intent to engage in homosexual

conduct. Richenberg contends that the military's "Don't Ask, Don't Tell"

policy regarding homosexuals, which is explicitly authorized by a 1993

statute, 10 U.S.C. § 654, violates his constitutional rights. The district

court granted summary judgment for the government. Richenberg appeals and 1

now seeks an injunction preventing his discharge pending appeal. 
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We deny the requested injunction, primarily for two reasons. First,

Richenberg has not persuaded us that he has a substantial likelihood of

success on the merits of his appeal. That must be the standard when

considering whether to grant a preliminary injunction preventing the

implementation of a statute that was the product of lengthy public debate

involving both Congress and the President. See Able v. United States, 44

F.3d 128, 131-32 (2d Cir. 1995). Even lacking the guidance of a specific

statute, "[o]ur review of miltary regulations challenged on First Amendment

grounds is far more deferential than constitutional review of similar laws

or regulations designed for civilian society." Goldman v. Weinberger, 475

U.S. 503, 507 (1986). Here, we are guided by specific legislative findings

supporting the challenged policy. See 10 U.S.C. § 654(a). Circuit courts

generally upheld the military's prior, more restrictive policy, citing the

need for judicial deference to military decisions regarding what rules are

rationally required to maintain effective military forces. See, e.g., BenShalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004

(1990). Like the district court, we are not persuaded by Richenberg's

showing to date that the new statutory policy is unconstitutional.

 

Second, Richenberg has not made a sufficient showing of irreparable

injury "to override the[] factors cutting against the general availability

of preliminary injunctions in Government personnel cases." Sampson v.

Murray, 415 U.S. 61, 84 (1974). In April 1993, after eight years in the

Air Force, Richenberg asked to be voluntarily separated. When that request

was denied, he advised his commanding officer for the first time that "I

am homosexual." These contested discharge proceedings followed. Having

exhausted Air Force procedures, Richenberg now faces honorable discharge.

The government concedes that, if he ultimately prevails in this action,

reinstatement with full back pay and benefits, or other comparable monetary

relief, would likely follow. In these circumstances, there has been no

showing of irreparable injury. 
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See Harris v. United States, 745 F.2d 535, 536 (8th Cir. 1984). In

addition, we see obvious harm to the government and the public interest in

granting a preliminary injunction that would hold in abeyance a military

policy adopted pursuant to a statute "extensively considered by Congress

in hearings, floor debate, and in committee." Rostker v. Goldberg, 453

U.S. 57, 72 (1981). 

For the foregoing reasons, the motion for an injunction pending

appeal is denied.

RICHARD S. ARNOLD, Chief Judge, dissenting.

I would grant the motion for injunction pending appeal and establish

an expedited briefing schedule that would enable this case to be submitted

promptly for decision on the merits. Because the Air Force, unless

enjoined, intends to discharge the appellant, Captain Richard F.

Richenberg, Jr., in just a few days, it is not possible to state my reasons

in an extended opinion. I would like to comment briefly, however, on the

likelihood of the appellant's prevailing on appeal.

Captain Richenberg has not been guilty of any prohibited conduct.

He has not even been accused of such conduct. His offense is simply that

he is a homosexual and that he has said he is. Under the current policy

of the Department of Defense, homosexual status, standing alone, is not

grounds for discharge. But for a service member to say that he or she is

homosexual can be grounds. It is said that such a statement creates a

rebuttable presumption that one has a propensity to engage in prohibited

conduct.

It seems to me that Captain Richenberg's First Amendment attack on

this state of affairs has a good chance of success. First of all, his mere

status is not objectionable under current military policy. Indeed, I doubt

if status, in and of itself,
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could be made a ground for discharge consistently with the First Amendment.

This would amount to thought control, and, if speech is protected, unspoken

thoughts must be too. The further circumstance that Captain Richenberg has

declared his status openly is no more than speech. It threatens no one and

has disobeyed no order. This much the current military policy appears to

recognize, because it purports to create a presumption, based on nothing

more than honest statements, that status or desire equals propensity to

act. This presumption appears to me to be at best questionable. If I am

a heterosexual and not married, do I have a propensity to commit

fornication? If I am covetous, do I have a propensity to steal? If I am

angry, do I have a propensity to strike someone or to kill? I think not.

The distinction between disposition and action is clear. The presumption

contained in the current policy ignores this distinction. Many people,

homosexual and heterosexual, are celibate. The current policy entirely

overlooks this aspect of human conduct.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.