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

### for the District of Nebraska. ___________ No. 95-4181

___________ 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. *

___________ Submitted: December 21, 1995 Filed: December 26, 1995

___________ 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 For ce from discharging him, after a full administrative heari ng, because he has a propensity or intent to engage in homosexua l conduct. Richenberg contends that the military's "Don't Ask, Don't Tell" policy regarding homosexuals, which is explicitly authorized by a 199 3 statute, 10 U.S.C. § 654, violates his constitutional rights. The distric t court granted summary judgment for the government. Richenberg appeals and

1 now seeks an injunction preventing his discharge pending appeal.

### -2- We deny the requested injunction, pr imarily for two reasons. First, Richenberg has not persuaded us that he has a substantial likelihood o f
success on the merits of his appeal. That must be the standard whe n co nsidering whether to grant a preliminary injunction preventing th e implementation of a s tatute that was the product of lengthy public debate involving both Congre ss 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 Amendmen t grounds is far more deferential than constitutio nal 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 finding s supporting the challenged policy. See 10 U.S.C. § 654(a). Circuit courts generally upheld the military's prior, more rest rictive policy, citing the need for judicial deference to military decision s regarding what rules are rationally required to maintain effective military forces. See, e.g. , Ben

Shalom v. Marsh , 881 F.2d 454 (7th Cir. 1989), c ert. 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 s ufficient showing of irreparable injury "to override the[] factors cutting agains t the general availability of pre liminary 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 reques t
was denied, he advised his commanding officer for the first time that "I
amhomosexual." These contested discharge proceedings followed. Having exhausted Air Force p rocedures, 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 monetar y relief, would likely follow. In these circumstances, there has been n o showing of irreparable injury.

### -3-

See Harris v. United States , 745 F.2d 535, 536 (8th Cir. 1984). I n 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 , 45 3 U.S. 57, 72 (1981).

For the foregoing reasons, the motion for an injunction pendin g appeal is denied.
RICHARD S. ARNOLD, Chief Judge, dissenting.
I would grant the motion for injunct ion 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, unles s enjoin ed, intends to discharge the appellant, Captain Richard F

. Richenberg, Jr., in just a few days, it is not possible to state my reason s in an extended opinio n. 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 no t grounds for discharge . But for a service member to say that he or she is homosexu al 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 o n this state of affairs has a good chance of success. First of all, his mer e status is not objectionable under current military policy. Indeed, I doub t if status, in and of itself,

### -4-

could be made a ground for discharge consistently with the First Amendment

. This would amount to thought control, and, if speech is protected, unspoke n thoughts must be too. The further circumstance that Captain Richenberg ha s declared his status openly is no more than speech. It threatens no one an d has disobeyed no orde r. This much the current military policy appears to recognize, because it purports to create a presumption, based on nothing
mor e than honest statements, that status or desire equals propensity t o act. This presumptio n appears to me to be at best questionable. If I am
a heterosexual and not married, do I have a propensity to commi t fornication? If I am covetous, do I have a propensity to steal? If I am angry, do I have a pr opensity to strike someone or to kill? I think not. The distinction betwe en disposition and action is clear. The presumption
con tained in the current policy ignores this distinction. Many people , homose xual and heterosexual, are celibate. The current policy entirel y overlooks this aspect of human conduct.

A true copy.

Attest:

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