CUMMINGS, Circuit Judge.
Plaintiffs were seamen apprentices in the United States Navy and were stationed at the Naval Hospital Corps School in Great Lakes, Illinois. According to their amended complaint, they enlisted in the Navy for three years commencing August 11, 1972, and allegedly discharged their naval duties in a satisfactory manner. After basic training in Orlando, Florida, they were assigned to the Great Lakes Naval Hospital Corps School for further training and their enlistment contracts were extended for another year.
On November 30, 1972, plaintiffs were interrogated about off-base homosexual conduct that occurred on leave at the Holiday Inn in Kenosha, Wisconsin, on November 24, 1972. On February 28, 1973, plaintiffs appeared before a Great Lakes Field Board convened to consider their dismissal from service. Each testified that she was a homosexual. The Navy's proof was limited to evidence of apparently consensual homosexual activity during off-duty hours away from naval
The Naval Bureau of Personnel subsequently accepted the recommendation of the Field Board and ordered that plaintiffs be discharged from the Navy pursuant to its findings. On May 18, 1973, after the district court refused to issue an order delaying their discharges,
Plaintiffs based this suit on the Declaratory Judgment Act (28 U.S.C. §§ 2201 and 2202). Their amended complaint sought a declaration that the Field Board's recommendations for discharge and any discharges based thereon were void and a declaration that Bureau of Naval Personnel Manual Section 3420220 (reproduced infra) "as it relates to private consensual homosexual conduct between adults is void and of no effect because it is in violation of the United States Constitution." Appropriate injunctive relief was also sought.
Plaintiffs moved for a preliminary injunction to reinstate them in the Navy pending the outcome of this suit. Thereafter, the Government moved the district court to deny plaintiffs' motion for preliminary injunction and to dismiss the complaint on the ground that plaintiffs failed to exhaust their administrative remedies before the Board for Correction of Naval Records ("BCNR") and failed to state a claim upon which relief could be granted.
In a June 15, 1973, minute order, the district court denied defendants' motion to dismiss "for want of primary jurisdiction," and also denied plaintiffs' motion for issuance of a preliminary injunction. Thereafter the respective parties filed motions for summary judgment. On September 6, 1973, pursuant to an unreported memorandum and order, the district court granted the Government's motion for summary judgment and simultaneously denied plaintiffs' motion for summary judgment.
In its memorandum opinion, the trial court weighed an individual's right of privacy against "the countervailing right on behalf of the military to demand the highest standards of discipline, obedience and personal conduct." After stating that the Secretary of the Navy had declared homosexual conduct intolerable in that branch of the Armed Forces, the court ruled "that a limited inquiry by the military into the personal conduct of those of its members pursuant to lawful authority does not constitute an unlawful invasion into the plaintiffs' constitutional rights to privacy." After summary judgment was entered for defendants, this appeal followed.
The pertinent regulations appear in Section 3420220 of the Bureau of Naval Personnel Manual (32 CFR § 730.12 (1973)) and the pertinent implementation policy is in Secretary of the Navy Instruction ("SECNAVINST") 1900.9A.
The policy instruction prescribed in said SECNAVINST 1900.9A provides:
As an alternative to affirmance of the judgment below, defendants ask this Court to remand the case with directions to dismiss the complaint for failure to exhaust administrative remedies. Plaintiffs counter by arguing that this option is unavailable to the Court because defendants did not cross-appeal from the denial of their motion to dismiss. If plaintiffs' contention is upheld it may be unnecessary to discuss exhaustion; therefore, we must deal first with the threshold issue whether this Court may consider dismissing for failure to exhaust in the circumstances of this case in the absence of a cross-appeal by defendants.
We follow the precedents which hold that since exhaustion is a quasi-jurisdictional problem and one of judicial administration, it is within the discretion of this Court to consider it sua sponte, and we find it appropriate to do so here. Hodges v. Callaway, 499 F.2d 417, 419 (5th Cir. 1974); Bolger v. Marshall, 90 U.S.App.D.C. 30, 193 F.2d 37, 39 (1951). Therefore, we do not accept plaintiffs' contention that defendants' failure to take a cross-appeal precludes them from arguing exhaustion on appeal.
Defendants assert that plaintiffs must seek review with the BCNR before being entitled to judicial relief. The BCNR was established pursuant to 10 U.S.C. § 1552 and is composed of civilian members. Its authority, function and procedures are set forth in 32 CFR § 723. Our study of the applicable regulations satisfies us that the BCNR is empowered to consider the validity of plaintiffs' discharges and to recommend to the Secretary of the Navy appropriate relief, including
We agree with the Fifth Circuit that ordinarily "a plaintiff challenging an administrative military discharge will find the doors of the federal courthouse closed pending exhaustion of available administrative remedies." Hodges v. Callaway, supra 499 F.2d at 420.
Plaintiffs maintain, however, that the regulations, coupled with the Secretary of the Navy's Instruction on homosexuals, require the discharge of active homosexuals like plaintiffs. They argue that in the face of such a clear-cut policy this Court should not forestall an adjudication of the important constitutional questions by ordering an administrative appeal, the result of which is allegedly preordained by Navy policy. If plaintiffs are correct about the fruitlessness of an appeal to the BCNR, there is ample authority to support their contention that exhaustion is improper. See Hodges v. Callaway, supra 499 F.2d at 420; Scott v. Schlesinger, 498 F.2d 1093, 1098 (5th Cir. 1974); Dooley v. Ploger, 491 F.2d 608 (4th Cir. 1974); L. Jaffe, Judicial Control of Administrative Action, 426-432 (1965); and Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L.J. 33, 70-71 (1973). The defendants, on the other hand, assert that an order to exhaust would not merely be a useless gesture because there is room under the regulations for the use of discretion in individual cases of homosexual conduct.
Both sides present arguments to support their positions. Plaintiffs rely principally on the allegedly mandatory language of SECNAVINST 1900.9A as incorporated into Regulation 3420220. (See full texts thereof, supra.) Specifically, plaintiffs point to the regulation's parenthetical reference to Instruction 1900.9A for "controlling policy and additional action required" (emphasis added). The policy thus referred to contains the following allegedly mandatory language:
Plaintiffs also argue that since the BCNR can only recommend action to the Secretary of the Navy and since the Secretary of the Navy's own Instruction clearly defines his view, further intra-service appeal is useless.
Plaintiffs have already been discharged, so that they cannot be spared this trauma even by an immediate favorable decision on the merits by this Court. If plaintiffs resort to the BCNR and if the BCNR decides in plaintiffs' favor and the Secretary of the Navy follows the BCNR's recommendation, plaintiffs can be fully reinstated and awarded back pay. Should plaintiffs be unsuccessful before the BCNR, they can return to the federal courts to have their claim adjudicated. Ashe v. McNamara, 355 F.2d 277, 281 (1st Cir. 1965). The harm that would be caused by a decision of this Court ordering exhaustion is, therefore, minimal.
Requiring exhaustion would also give the Navy an opportunity to adopt a narrowing construction of its regulation. This is appropriate even if the meaning of the regulation appears reasonably clear to us, since the Secretary of Defense, who is a party to this proceeding, has represented to the Court, through his counsel, that the regulation does not mandate discharge whenever homosexuality is proved. As the Third Circuit has observed, "* * * the primary authority for the interpretation of such regulations lies within the Navy's own appellate system." Nelson v. Miller, 373 F.2d 474, 480 (3d Cir. 1967). The possibility that a narrow construction is approrpiate is supported by a comment of the senior member of the Field Board when he was being examined on voir dire by counsel for the plaintiffs
In view of all of these factors, while we sympathize with the plight of the district court faced with the exhaustion issue in these difficult circumstances, we believe that this suit should have been dismissed without prejudice pending the exhaustion of plaintiffs' appeal to the BCNR. Beard v. Stahr, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321 (per curiam). Of course, in so ordering we express no opinion on the merits of plaintiffs' claim nor do we hold that the regulations regarding the discharge of active homosexuals are necessarily non-mandatory.
Vacated and remanded with instructions to dismiss the amended complaint without prejudice.