John D. Hensala v. Department of the Air Force, F. Whitten Peters, Secretary of the Air Force

Opinon by Judge THOMAS; Opinion concurring in part and dissenting in part by Judge TASHIMA.

OPINION

In this appeal we consider, inter alia, whether the district court properly granted summary judgment on John D. Hensa-la’s claims that the United States Air Force’s educational recoupment policy violated his constitutional rights. We conclude that genuine issues of fact preclude summary judgment as to some of the claims, and remand the case to the district court for further proceedings.

I

Since 1957, the Uniform Code of Military Justice has criminalized sex between service members of the same gender and provided that such conduct is an offense punishable by court martial. 10 U.S.C. § 925 . In 1993, Congress enacted the so-called “Don’t Ask, Don’t Tell” policy, codified at 10 U.S.C. § 654 (b), which limits the basis under which a service member will be ordered separated from the armed services for violations of § 925. In particular, *953 the “Don’t Ask, Don’t Tell” policy (1) enumerated five exceptions under which evidence of a § 925 violation will not lead to discharge, see § 654(b)(1); and (2) provided that if a service member “has stated that he or she is a homosexual or…

concurring in part and dissenting in part:

John Hensala received a free medical education at taxpayer expense to the tune of $71,429.53. In return, he promised to serve as a physician in the United States Air Force for four years. Quite simply, Hensala refused to perform his part of the bargain — he reneged on his promise. Because I can see no legal reason why Hen-sala should not be held to his bargain and required to repay the government for his medical education, I dissent from so much of the majority opinion as remands this case for further proceedings.

I concur in Parts II.A and II.B of the majority opinion, affirming the district court’s grant of summary judgment in favor of the Air Force on Hensala’s APA, due process and Fed.R.Civ.P. 56(f) claims, but I respectfully dissent from Part II.C, which remands Hensala’s equal protection claim for further proceedings. I would affirm the district court on all issues because Hensala does not challenge his separation as voluntary under the Don’t Ask, Don’t Tell (“DADT”) policy, which we upheld in Holmes v. California Army Nat’l Guard, 124 F.3d 1126 , 1133 (9th Cir.1997), 1 and it follows from his voluntary separation that recoupment…

343 F.3d 951 John D. HENSALA, Plaintiff-Appellant, v. DEPARTMENT OF THE AIR FORCE, F. Whitten Peters, Secretary of the Air Force, Defendants-Appellees. No. 01-16791. United States Court of Appeals, Ninth Circuit. Argued October 9, 2002. Submitted and Filed September 12, 2003 — San Francisco, California. Filed September 12, 2003. Richard DeNatale, Clyde J. Wadsworth, Christopher F. Stoll, Edward E. Schiffer, Jo Ann Hoenniger, Heller Ehrman White & McAuliffe, LLP, San Francisco, California; Stephen L. Collier, San Francisco, California, Clyde J. Wadworth, Steefel, Levitt & Weiss, San Francisco, California for the appellant. Anthony J. Steinmeyer and E. Roy Hawkens, United States Department of Justice, Appellate Civil Division, Washington, D.C., and Cpt. Andrew LeBlanc, United States Air Force, Washington, D.C., for the appellees. Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-00-1793-WHA. Before: A. WALLACE TASHIMA, Sidney R. THOMAS, and RICHARD A. PAEZ, Circuit Judges. Opinion by Judge THOMAS; Opinion concurring in part and dissenting in part by Judge TASHIMA. OPINION…