Judge Christine Odell Cook Miller of the U.S. Court of Federal Claims issued a ruling on October 18 refusing to dismiss a lawsuit filed by Richard Collins, a gay man who was dismissed from the Air Force under the Don't Ask, Don't Tell policy (DADT) and who is challenging the Defense Department's policy of giving people in his situation only half the amount of separation pay that is normally given to individuals who are involuntarily dismissed from the armed forces. Collins claims that this unequal treatment violates his equal protection rights under the 5th Amendment of the U.S. Constitution. Collins v. United States, No. 10-778C (U.S.Ct.Fed.Cl., Oct. 18, 2011).
Collins enlisted in the Air Force in April 1997, and served "ably for over nine years," wrote Judge Miller, "achieving the rank of Staff Sargent." However, he was honorably discharged from the service on March 10, 2006, after his sexual orientation came to the attention of superior officers. Upon discharge, he received separation pay of $12,851.24.
Normally, servicemembers who have served at least six years (but not long enough to lock in a military pension, which requires 20 years) and who are honorably discharged involuntarily, are entitled by statute (10 U.S.C. sec. 1174) to receive "separation pay" calculated based on a formula multiplying their years of service by the monthly base pay they were receiving when they were discharged or released from duty. The Secretary of Defense is given some discretion in deciding whether a particular individual gets the full amount calculated under this formula, half the amount, or no separation pay. The Defense Department regulations adopted to implement Section 1174 provide that people involuntarily discharged due to homosexuality get "half pay," like people who are discharged for drug or alcohol abuse, for national security reasons, or a few other listed reasons in the regulations.
Had the reason for Collins' discharge not been on the regulatory list, he would have been entitled to $25,702.48. He claims that the inclusion of homosexuality on the "half pay" list is unconstitutionally discriminatory. Collins filed suit seeking to represent a class of all people who received honorable discharges under the DADT policy and were not give the full separation pay authorized under Section 1174 during a the six-year period within the statute of limitations.
The government is taking the position that the Court of Claims does not have jurisdiction to hear the case because the statute leaves to the discretion of the Secretary of Defense the decision whether somebody gets full or half or no separation pay. Discretionary decisions by government officials within the parameters of statutory authorization are generally immune from monetary damage claims. A major exception, however, is where the statutory authorization constrains that discretion in such a way that the statute could be termed a "money-mandating" statute; in effect, a command by Congress to make a payment to somebody.
Judge Miller devotes the bulk of her opinion to a lengthy discussion of regulatory provisions and prior court decisions that lead her to conclude that Section 1174 is a money-mandating statute, in that it creates an entitlement to separation pay for individuals with at least six but fewer than 20 years of service who meet the general requirements set out in the statute, and gives the Secretary discretion to cut the amount in half or deny pay entirely in a circumscribed set of circumstances. Although Judge Miller characterized Section 1174 as "unique" compared to any other federal payment scheme that has been analyzed for this purpose, she found that it was similar enough to those that had been held to be "money-mandating" statutes to justify asserting jurisdiction in this case.
Alternatively, the government argued that the claim was not "justiciable" and that, in fact, Collins' allegation of discrimination failed to state any sort of valid legal claim upon which the court could grant relief. Justiciability has to do with whether there is any articulable standard against which the court can review the government's action. Once again, the government argued that because the decision being challenged (to include homosexuality on the list of reasons for discharge meriting half rather than full separation pay) was confided to the discretion of the Secretary, it was not subject to judicial review, and once again the judge disagreed, as she did with the argument that Collins' complaint failed to state a legally valid claim.
Ultimately, she concluded, the government was trying to argue the merits of the case — that is, whether giving only half separation pay to people who were honorably discharged under DADT is a violation of equal protection — rather than confining its dismissal motion to the question whether, at least theoretically, Collins might have a case in which the court could award him a remedy. The government failed to persuade Judge Miller that even if she found "homosexuality" should not have been included on the half-pay list, she would be precluded by other aspects of the regulations from awarding him any remedy. The "defendant has not persuaded the court at this stage that plaintiff would be absolutely barred from recovery of full separation pay, which would be required to grant defendant's motion to dismiss for failure to state a claim," she wrote.
The problem is that full separation pay is reserved for those involuntarily discharged members who remain "fully qualified for retention," since separation pay was theoretically mainly intended to compensate qualified individuals who wanted to pursue a military career but whose desire could not be accommodated due to the needs of the military. The statute was enacted anticipating that the size of the armed forces could expand or contract depending upon the degree of engagement the U.S. has in military activities, and some people who wanted to continue serving might be deprived of that opportunity due to elimination of particular programs or to downsizing generally. If such people hadn't served long enough to earn a military pension, separation pay was some compensation for their loss of the opportunity to continue serving long enough for that reward. The delegation of discretion to the Secretary to reduce compensation to half or no pay, depending on the circumstances, probably represents a judgement that even though the individuals were given an honorable discharge in the circumstances, they would not have been allowed to continue serving in any event for disqualifying reasons.
The problem, wrote Judge Miller, is that the phrase "fully qualified for retention" is not defined in the regulations, and the court was not willing to conclude as a matter of law that the definition proffered by the Defense Department — which would disqualify Collins — was necessarily the correct one. Depending what definition the court adopts, it is possible that if the court were to strike "homosexuality" from the half-pay list, "then plaintiff might fall under the phrase 'fully qualified for retention' and be entitled to full pay." Judge Miller concluded that it would be premature to terminate the litigation now.
The next step will be for the court to decide whether to certify the case as a class action, so that Collins would be suing not only for his own separation pay but also in a representative capacity for all those similarly situated. Judge Miller set an October 31 deadline for the parties to present "a proposed schedule for any discovery and briefing on plaintiff's motion to certify the class," so she evidently intends to move forward without delay to the next stage.
Since DADT ended on September 20, this case may on the surface appear to be mainly of historical interest, attempting to establish claims to full separation pay for people discharged in the past. But the case provides yet another vehicle for challenging disparate treatment of gay people by an agency of the federal government.
Also, it is interesting to note that the Air Force's version of the separation pay regulations, unlike the general regulation issued by the Defense Department, uses the phrase "homosexual conduct" rather than "homosexuality" as the determinant for half-pay as opposed to full pay. Under DADT, "homosexual conduct" included saying that one was gay, or engaging in conduct that would reveal one's gay sexual orientation to others. Now that DADT has bitten the dust, "homosexual conduct" might be limited to the sexual acts forbidden under the Uniform Code of Military Justice, Article 125, the military sodomy statute, violation of which would still be grounds for discharge.
So it remains possible that gay servicemembers may still be discharged for engaging in gay sex under circumstances that military courts do not judge to come within the sphere of constitutional protection described in Lawrence v. Texas, or where there are special military needs overriding such constitutional protection. The DADT Repeal Act did not affect UCMJ 125, and the Supreme Court has yet to pass on the approach that the military courts have been taking to deciding whether particular sexual conduct engaged in by military personnel that might violate UCMJ 125 is shielded from prosecution by the 5th Amendment due process clause. It seems that when it comes to gays in the military, there remains no end of unresolved legal questions, despite the demise of DADT.
Joshua A. Block of New York is Collins' lead counsel, with the ACLU LGBT Rights Project and various cooperating attorneys assisting with the case.