Unpublished Disposition, 930 F.2d 29 (9th Cir. 1985)

MEMORANDUM^** 

The plaintiffs appeal the decision of the district court to dismiss their complaint for failure to exhaust administrative remedies and for lack of prosecution.

* John Richard Peter Sheehan, John Alexander Schmidt, and Harry Clifford Thompson filed this action in the United States Claims Court on March 14, 1983, challenging the United States Navy's decision to grant them other-than-honorable discharges for purportedly engaging in homosexual conduct. The plaintiffs sought an upgrade of their discharge status to honorable, backpay to the expiration of their enlistment periods, accrued and earned leave, and all pension and other benefit rights to which they would have been entitled if they had completed their terms of enlistment. The plaintiffs also sought a declaratory judgment that the military's policies towards homosexual conduct deprived them of their constitutional rights of due process and equal protection.

The claims court found that the plaintiffs' request for backpay was barred by the applicable statute of limitations. The court also concluded, however, that it lacked jurisdiction over the plaintiffs' constitutional claims and Privacy Act claims, and claims of denial of corrective action by the discharge review board. Accordingly, the claims court transferred the complaint as to the remaining claims for relief to the United States District Court for the Northern District of California.

On January 22, 1985, on motion for summary judgment by the government, the district court dismissed the plaintiffs' claims for relief challenging the action of the discharge review board. The plaintiffs, the district court concluded, had not yet exhausted their administrative remedies by seeking review through the Board for Correction of Naval Records ("BCNR"). Plaintiffs' Privacy Act claims were dismissed as untimely. Only the constitutional challenges to the Navy's policies remained.

Thereafter, it appears that each of the plaintiffs sought relief from the BCNR. When months passed without activity by the plaintiffs in this case, the district court ordered the plaintiffs to show cause why the case should not be dismissed for lack of prosecution. In response, counsel for plaintiffs apparently submitted a certificate of counsel, urging the district court to retain jurisdiction over the matter pending an administrative resolution by the BCNR.¹  The district court disregarded the request, dismissing the remaining constitutional claim on December 20, 1985. This appeal followed.² 

II

We note at the outset that the plaintiffs have been less than forthcoming in specifying the relief they seek from this court. The BCNR has apparently completed its review of the three cases, and has apparently granted some relief to each of the plaintiffs. In fact, it appears that only John Sheehan remains unsatisfied with the BCNR's ruling; although Sheehan's discharge was apparently upgraded to honorable, he disagrees with the effective date established by the BCNR for the upgrade. Accordingly, the appeals by Schmidt and Thompson have been abandoned.

The district court did not err in dismissing the nonconstitutional claims for failure to exhaust administrative remedies. See Muhammad v. Secretary of the Army, 770 F.2d 1494, 1495 (9th Cir. 1985) (requiring exhaustion of Army Board for Correction of Military Records prior to filing suit in federal court).

The dismissal of the constitutional claims requires more extensive discussion. Sheehan suggests that the district court should have retained jurisdiction and, presumably, stayed proceedings on the claim while administrative remedies were pursued. However, Sheehan states throughout his opening and supplemental reply briefs that his current complaint is with the established effective date of the discharge upgrade, not with the constitutionality of the underlying military policies. A challenge to the BCNR's decision would necessarily entail the filing of a new lawsuit; thus, the district court's retention of jurisdiction over the constitutional claims would not have aided the plaintiff in obtaining the relief he apparently seeks.

Finally, we agree with the district court that even if the plaintiffs' constitutional claim had not been dismissed for lack of prosecution, it could have been dismissed for failure to state a claim upon which relief may be granted. In Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980) (Kennedy, J.), cert. denied, 452 U.S. 905 (1981), we held that the Navy's regulations providing for discharge of those who engage in homosexual conduct were not unconstitutional. See id. at 810-12; see also Hatheway v. Secretary of the Army, 641 F.2d 1376, 1381-82 (9th Cir.), cert. denied, 454 U.S. 864 (1981). In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court went even further, refusing to "extend a fundamental right to homosexuals to engage in acts of consensual sodomy." Id. at 192; see also High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 572 (9th Cir. 1990).³  Thus, it is clear that they withstand constitutional attack.

The district court did not err in dismissing the plaintiffs' claims for either failure to exhaust administrative remedies or for lack of prosecution.

AFFIRMED.