Sergeant Perry Watkins v. United States Army

875 F.2d 699 49 Fair Empl.Prac.Cas. 1763 , 50 Empl. Prac. Dec. P 38,967 , 57 USLW 2662 Sergeant Perry WATKINS, Plaintiff-Appellant, v. UNITED STATES ARMY, et al., Defendants-Appellees. No. 85-4006. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Oct. 12, 1988. Decided May 3, 1989. James E. Lobsenz, Wolfe, Lobsenz & Cullen, American Civil Liberties Union-Washington State, Seattle, Wash., for plaintiff-appellant. E. Roy Hawkens, Asst. Atty. Gen., Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before GOODWIN, Chief Judge, SCHROEDER, PREGERSON, ALARCON, NELSON, CANBY, NORRIS, BEEZER, HALL, O'SCANNLAIN, and TROTT, Circuit Judges. PREGERSON, Circuit Judge: 1 The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had…

dissenting.

Sergeant Perry Watkins has proven himself to be a loyal, talented, and honest soldier. . The majority is rightly impressed by Watkins’ uniformly outstanding performance evaluations and the persistent efforts of his immediate superiors to insure his continued advancement in the United States Army. I share the majority’s admiration of Watkins’ fine service to his country. Watkins’ record has but one blemish under Army regulations: his homosexuality. Watkins brought this lawsuit seeking to enjoin the Army from considering his homosexuality in passing upon the merits of his reenlistment application.

During Watkins’ tenure, Army regulations have always precluded the enlistment of homosexuals. The gravamen of Watkins’ claim is that such discrimination against homosexuals constitutes a violation of his right to equal protection under the fifth amendment. The en banc majority shies away from this issue, however, and grants Watkins the relief he seeks on an alternative rationale. 1 The majority holds *732 that the Army is equitably estopped from refusing to reenlist him due to the Army’s long-standing knowledge of his homosexuality. I dissent from this holding as an…

The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its longstanding policy that homosexuality was a nonwaivable disqualification for reenlistment. The issue before the en banc court is whether the Army may deny reenlistment to Watkins solely because of his acknowledged homosexuality.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 1967, at the age of 19, Perry Watkins was drafted into the United States Army. In filling out the Army’s preinduction medical form, he marked “yes” in response to a question asking whether he had homosexual tendencies. The Army nonetheless found Watkins “qualified for admission” and inducted him into its ranks.

During Watkins’ initial three-year tour of military duty, he served in the United States and Korea as a chaplain’s assistant, personnel…

concurring in the judgment:

I

I concur in the judgment requiring the Army to reconsider Sgt. Watkins’ reenlistment application without regard to his homosexuality. I cannot join the majority’s opinion, however, because I agree with the dissent that the judgment cannot rest on the doctrine of equitable estoppel. The Supreme Court has declined to approve the invocation of equitable estoppel against the government even in cases where the facts are no less sympathetic than the facts in Sgt. Watkins’ case. See, e.g., INS v. Miranda, 459 U.S. 14, 17-19 , 103 S.Ct. 281, 282-84 , 74 L.Ed.2d 12 (1982) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying resident status to alien spouse of citizen when petitioner became ineligible during INS delay in processing application); INS v. Hibi, 414 U.S. 5 , 94 S.Ct. 19 , 38 L.Ed.2d 7 (1973) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying citizenship to Filipino war veteran); Montana v. Kennedy, 366 U.S. 308, 314-15 , 81 S.Ct. 1336, 1340-41 , 6 L.Ed.2d 313 (1961) (government not estopped to deny citizenship to child of U.S. citizen born while his mother was living abroad, even…

concurring:

I concur wholeheartedly in Judge Preger-son's majority opinion. My concurrence indicates no retreat, however, from my conviction that the Army’s discrimination against Watkins because of his homosexual orientation denies him equal protection of the laws. I joined Judge Norris’ eloquent opinion so holding in Watkins II, and I agree with everything Judge Norris says today on the equal protection point. Because we are en banc, and the constitutional issue is a recurring one, I think I may appropriately reach it even though equitable estoppel may dispose of the case.