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BITTNER v. SECRETARY OF DEFENSE

June 13, 1985

WARREN R. BITTNER, et al., Plaintiffs
v.
SECRETARY OF DEFENSE, et al., Defendants



The opinion of the court was delivered by: GREEN

 This matter is before the Court on defendants' motion to dismiss this action, plaintiffs' opposition thereto, defendants' reply to plaintiffs' opposition, supplemental briefing, oral argument on the motion, and the entire record herein. For the reasons set forth below in detail, the Court denies defendants' motion, but dismisses some of the named plaintiffs.

 On June 5, 1984, eight former servicemembers of the United States Army, Navy, and Air Force brought suit against the Secretary of Defense and the Secretaries of the United States Navy, Army, and Air Force. Also named in the original complaint were organizations, namely, the Vietnam Veterans of America ("VVA"), and the National Gay Task Force ("NGTF"). By means of an amended complaint filed on August 3, 1984, an additional plaintiff, Warren R. Bittner, was included in the action.

 Plaintiffs in this case seek declaratory and injunctive relief for the allegedly illegal and unconstitutional practices and policies with regard to the creation, maintenance, and public disclosure of records reflecting less than honorable discharge of military service. The individually named plaintiffs in this action challenge the less-than-honorable-discharge characterization issued administratively for alleged homosexual acts, homosexual tendencies, or homosexuality regardless of whether such acts or status as a homosexual had an impact on the servicemembers' performance of military duties. Eight of the individual plaintiffs not only challenge the character of the discharge itself, but also challenge the administrative decisions of the Discharge Review Boards ("DRB") and the Boards for Correction of Military Records ("BCMR") as unlawful within the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C. ยง 706(2). Plaintiff Bittner's claim is limited to challenging the characterization of his discharge. The two organizational plaintiffs seek declaratory and injunctive relief to strike down defendants' current discharge characterization policy because it allegedly is violative of the law and the Constitution.

 Defendants seek to dismiss this action on three grounds: lack of standing for the organizational plaintiffs, failure to exhaust administrative remedies for plaintiff Bittner, and statute of limitations for the remaining eight individual plaintiffs.

 Upon review of each argument, the Court concludes that plaintiff VVA must be dismissed for lack of standing; that plaintiff Bittner must be dismissed, without prejudice, for failure to exhaust available administrative remedies; and that the remaining eight individual plaintiffs are not barred by the statute of limitations from bringing this action to seek review of the administrative review boards' decisions, but are barred from seeking review of their original discharge. Some of these eight plaintiffs, however, are dismissed, without prejudice, for failure to exhaust their administrative remedies. Accordingly, only two individual plaintiffs remain to pursue review of the administrative determination, and the NGTF may remain to pursue claims against defendants' challenged policies and practices. The Court shall review each type of plaintiff sought to be dismissed by defendants.

 Organizational Plaintiffs

 Plaintiffs VVA and NGTF assert that the military policy regulating the character of discharges issued to homosexuals has caused them "injury in fact" and, therefore, gives standing to these plaintiffs.

 A. Vietnam Veterans of America

 "The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3325, 82 L. Ed. 2d 556 (1984). In their complaint plaintiffs assert for the VVA that

 
because of defendants' practices and policies challenged herein, VVA has had and will have to expend considerable financial resources to provide legal representation and legal advice on applications for recharacterization of discharge filed before the Discharge Review Boards and Boards for Correction of Military Records by veterans discharged for homosexual acts, homosexuality, or "homosexual tendencies." This diversion of financial resources has hindered VVA in accomplishing its organizational goals by assisting veterans on other issues related to their military service.

 Complaint at para. 11.

 In the admittedly broad but unanimous decision in Havens Realty Corp. v. Coleman, 455 U.S. 363, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982), the Supreme Court outlined the requirements necessary for an organization to attain standing. In that decision certain individuals and an organization sought to challenge a realty company's alleged practice of "racial steering." The organizational plaintiff was "'a nonprofit corporation . . .' whose purpose was 'to make equal opportunity in housing a reality in the Richmond Metropolitan Area.' . . . Its activities included the operation of a housing counseling service, and the investigation and referral of complaints concerning housing discrimination." Id. at 368. Quoting the complaint, the Court outlined what the organizational plaintiff alleged:

 Id. at 379. The Court then concluded that

 
if, as broadly alleged, petitioners' steering practices have perceptively impaired HOME's ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities -- with the consequent drain on the organization's resources -- constitutes far more than simply a setback to the organization's abstract social interests. . . .

 Id.

 Courts that have applied the Havens Realty standard have stressed the two-fold nature of organizational standing. The court in Minority Employees v. Tennessee, 573 F. Supp. 1346 (M.D. Tenn. 1983), for example, noted that

 
when an organization alleges that it has been hindered by a defendant in its efforts to assist others to obtain constitutional or statutory rights and that it has had to devote significant resources to counteract a defendant's actions, it has ...

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