Meinhold
Meinhold v. United States Department of Defense
Opinion
Lead Opinion
Boochever, J.
Navy officer Keith Meinhold was discharged for stating that he was gay, although he later truthfully denied that he engaged in homosexual conduct. A previous panel of this court held that the Navy violated its regulations by discharging Meinhold without evidence of an expressed desire to engage in homosexual conduct. The district court awarded Meinhold attorney fees under the Equal Access to Justice Act, and the government appeals the award, the district court’s finding of bad faith, and the amount of fees. We affirm.
FACTS
Keith Meinhold, a Navy petty officer with twelve years of exemplary service, stated “I am in fact gay” on May 19, 1992, during an interview on ABC World News Tonight. The Navy immediately began discharge pro *1277 ceedings against Meinhold under then-existing military policy, which provided that a member “shall be separated” if “the member has stated that he or she is a homosexual,” i.e., “a person ... who engages in, desires to engage in, or intends to engage in homosexual acts.” DOD Directive 1332.14, 32 C.F.R. pt. 41, App. A (1981). The Navy discharged Meinhold on August 12,1992.
Meinhold challenged his discharge in federal district court. The district…
Dissenting Opinion
Kozinski, J.
Dissenting.
The district judge awarded fees because he found that “the Navy’s policy of discharging persons, based solely on their status as homosexuals, for the purported purpose of protecting the military mission, lacks any reasonable basis in law or fact.” Appendix at 10804. 1 By affirming, the majority causes a conflict with four other circuits that have held the government may discharge members of the armed forces for saying they are homosexuals. See Steffan v. Perry, 41 F.3d 677, 686 (D.C.Cir.1994) (en banc); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989); Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir.1984). Worse, the majority creates a conflict with the law of the case and the law of our circuit, as announced in Meinhold II, where we held that this is a close and difficult question which should not be decided in this case. Meinhold II, 34 F.3d 1469 , 1479 (9th Cir.1994).
The majority does not acknowledge these conflicts, donning the mantle of deference to the district court. Maj. op. at 1278-80. But we review questions of law de novo. United States v. Gutierrez, 116 F.3d 412, 415 (9th…