Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided March 28, 1991.
Appeal from the United States District Court for the Northern District of California; No. CV-83-3834-JPV, John P. Vukasin, Jr., District Judge, Presiding.
N.D.Cal.
AFFIRMED.
Before GOODWIN, DAVID R. THOMPSON and O'SCANNLAIN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3.
The plaintiffs appeal the decision of the district court to dismiss their complaint for failure to exhaust administrative remedies and for lack of prosecution.
I
John Richard Peter Sheehan, John Alexander Schmidt, and Harry Clifford Thompson filed this action in the United States Claims Court on March 14, 1983, challenging the United States Navy's decision to grant them other-than-honorable discharges for purportedly engaging in homosexual conduct. The plaintiffs sought an upgrade of their discharge status to honorable, backpay to the expiration of their enlistment periods, accrued and earned leave, and all pension and other benefit rights to which they would have been entitled if they had completed their terms of enlistment. The plaintiffs also sought a declaratory judgment that the military's policies towards homosexual conduct deprived them of their constitutional rights of due process and equal protection.
The claims court found that the plaintiffs' request for backpay was barred by the applicable statute of limitations. The court also concluded, however, that it lacked jurisdiction over the plaintiffs' constitutional claims and Privacy Act claims, and claims of denial of corrective action by the discharge review board. Accordingly, the claims court transferred the complaint as to the remaining claims for relief to the United States District Court for the Northern District of California.
On January 22, 1985, on motion for summary judgment by the government, the district court dismissed the plaintiffs' claims for relief challenging the action of the discharge review board. The plaintiffs, the district court concluded, had not yet exhausted their administrative remedies by seeking review through the Board for Correction of Naval Records ("BCNR"). Plaintiffs' Privacy Act claims were dismissed as untimely. Only the constitutional challenges to the Navy's policies remained.
Thereafter, it appears that each of the plaintiffs sought relief from the BCNR. When months passed without activity by the plaintiffs in this case, the district court ordered the plaintiffs to show cause why the case should not be dismissed for lack of prosecution. In response, counsel for plaintiffs apparently submitted a certificate of counsel, urging the district court to retain jurisdiction over the matter pending an administrative resolution by the BCNR. The district court disregarded the request, dismissing the remaining constitutional claim on December 20, 1985. This appeal followed.
Notably, the certificate of record appears nowhere in the district court record, nor does the copy provided in appellants' excerpt of record contain a court file stamp or a certificate of service upon interested parties. In its order of dismissal, however, the district court does refer to the certificate of counsel, indicating that it had received a copy of the certificate.
The notice of appeal was filed on February 19, 1986. The appellants filed their opening brief on October 1, 1986. After numerous continuances, the government's opening brief was filed on July 26, 1988. On the government's motion, the appeal was then stayed, apparently in anticipation of this court's decision in Watkins v. United States Army, 875 F.2d 699 (9th Cir.1989) (en banc), cert. denied, 111 S.Ct. 384 (1990). Following the denial of certiorari in Watkins, we now turn to the merits of this appeal.
II
We note at the outset that the plaintiffs have been less than forthcoming in specifying the relief they seek from this court. The BCNR has apparently completed its review of the three cases, and has apparently granted some relief to each of the plaintiffs. In fact, it appears that only John Sheehan remains unsatisfied with the BCNR's ruling; although Sheehan's discharge was apparently upgraded to honorable, he disagrees with the effective date established by the BCNR for the upgrade. Accordingly, the appeals by Schmidt and Thompson have been abandoned.
The district court did not err in dismissing the nonconstitutional claims for failure to exhaust administrative remedies. See Muhammad v. Secretary of the Army, 770 F.2d 1494, 1495 (9th Cir.1985) (requiring exhaustion of Army Board for Correction of Military Records prior to filing suit in federal court).
The dismissal of the constitutional claims requires more extensive discussion. Sheehan suggests that the district court should have retained jurisdiction and, presumably, stayed proceedings on the claim while administrative remedies were pursued. However, Sheehan states throughout his opening and supplemental reply briefs that his current complaint is with the established effective date of the discharge upgrade, not with the constitutionality of the underlying military policies. A challenge to the BCNR's decision would necessarily entail the filing of a new lawsuit; thus, the district court's retention of jurisdiction over the constitutional claims would not have aided the plaintiff in obtaining the relief he apparently seeks.
Finally, we agree with the district court that even if the plaintiffs' constitutional claim had not been dismissed for lack of prosecution, it could have been dismissed for failure to state a claim upon which relief may be granted. In Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980) (Kennedy, J.), cert. denied, 452 U.S. 905 (1981), we held that the Navy's regulations providing for discharge of those who engage in homosexual conduct were not unconstitutional. See id. at 810-12; see also Hatheway v. Secretary of the Army, 641 F.2d 1376, 1381-82 (9th Cir.), cert. denied, 454 U.S. 864 (1981). In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court went even further, refusing to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy." Id. at 192; see also High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 572 (9th Cir.1990). Thus, it is clear that they withstand constitutional attack.
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4.
Notably, in High Tech Gays we observed that whatever protection might have been given to homosexual conduct in Beller and Hatheway was overruled by Bowers v. Hardwick. See 895 F.2d at 572 ("Neither Beller nor Hatheway is binding authority on us regarding heightened scrutiny for classifications based on homosexuality.").
The district court did not err in dismissing the plaintiffs' claims for either failure to exhaust administrative remedies or for lack of prosecution.
AFFIRMED.
Sheehan contends that both Bowers and High Tech Gays were improperly decided. We are, however, without authority to even consider this issue, as we are bound by prior precedent of the Supreme Court, see Immigration & Naturalization Service v. Federal Labor Relations Authority, 855 F.2d 1454, 1458 (9th Cir.1988), and of prior panels of this court, see Sheehan v. United States, 896 F.2d 1168, 1172 n. 7 (9th Cir.),amended, 917 F.2d 424 (1990).