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July 20, 1989


The opinion of the court was delivered by: GASCH


 This matter is before the Court on defendants' motion to dismiss. Defendants are the Secretary of Defense, the Secretary of the Navy, the Superintendent of the Naval Academy, and the Commandant of Midshipmen. Plaintiff Joseph C. Steffan was formerly a midshipman at the United States Naval Academy. He was separated from the Naval Academy when he admitted that he was a homosexual. Plaintiff complains that his separation from the Naval Academy violated his constitutional rights of free speech and association, due process, and equal protection. Defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that "plaintiff failed to allege any facts which, if proven, would establish that his resignation was involuntary." Defendants' Memorandum at 14. Defendants also seek dismissal under Rule 12(b)(6), arguing that plaintiff voluntarily resigned, depriving this Court of jurisdiction. In addition, defendants contend that this action should be dismissed because plaintiff has failed to exhaust his administrative remedies. Finally, defendants assert that the Tucker Act confers exclusive jurisdiction over this matter on the Claims Court.

 Defendants' Rule 12(b) arguments essentially challenge plaintiff's standing to sue. Because a motion to dismiss for lack of standing can only be brought under Federal Rule of Civil Procedure 12(b)(1), defendants' 12(b)(6) motion is denied. The 12(b)(1) motion is denied because plaintiff has alleged facts that, if true, establish his standing to sue. The Court also rejects defendants' argument that exhaustion of administrative remedies is required, holding that the futility exception applies. Finally, the Court concludes that the Tucker Act does not apply to this action.


 Plaintiff was scheduled to graduate from the Naval Academy in May, 1987. In March, he was advised by another midshipman that the Naval Investigative Service was investigating his alleged homosexuality. Shortly thereafter he told the Chief of Chaplains, Captain Byron Holderby, that he was a homosexual. He asked the Chaplain to intercede with the Commandant on his behalf "to assure his graduation." Complaint at para. 17. On March 23, after the Commandant informed the Chaplain that plaintiff would not be allowed to graduate, plaintiff himself met with the Commandant and "requested a meeting with the Superintendent . . . to request permission to graduate." Complaint at para. 19. At this meeting plaintiff admitted to the Commandant that he was homosexual. The Commandant refused the request to meet with the Superintendent and arranged to have the Brigade Performance Board convene the next day to consider plaintiff's fitness to serve.

 Navy regulations provide that homosexuality "severely limits a midshipman's aptitude and potential for commissioned service." United States Naval Academy Regulations, para. 12010.3.4 (rev. 1978). Homosexual midshipmen are considered for separation from the Naval Academy on the basis of their insufficient aptitude. Commandant of Midshipmen Instruction 1610.6f, at para. 2.15.3. Thus, the Commandant recommended to the Brigade Performance Board that plaintiff be separated from the Naval Academy.

 The Brigade Performance Board met the next day, March 24. Prior to the meeting plaintiff met with the Deputy Commandant of Midshipmen, Captain A. H. Konetzni. Captain Konetzni allegedly "warned [plaintiff] that if [he] wanted things to proceed smoothly, [he] should not answer in any way that would be adversarial to the proceedings. [The Captain] went on to say that if [plaintiff] tried to fight [his] discharge, it would be well within the Academy's power to make [his] situation much more unpleasant than it already was." Affidavit of Joseph C. Steffan. While before the Board, plaintiff was asked, "Do you desire to be commissioned as an officer of the Naval service by continuing as a midshipman of the Naval Academy?", to which he replied, "No, sir." Exhibit K, Defendants' Memorandum.

 The Brigade Performance Board recommended to the Commandant that plaintiff be separated from the Naval Academy due to insufficient aptitude for military service. On March 26 the Commandant concurred with the Brigade Performance Board and recommended to the Academic Board that plaintiff be separated. Plaintiff met with the Performance Officer, Major R. C. Funk, to review the Commandant's recommendation. Plaintiff allegedly "informed Major Funk that [he] did desire to graduate from the Academy and wanted that statement included with the Commandant's letter." Steffan Affidavit, para. 7. Major Funk instructed plaintiff to make this request to the Academic Board. On April 1 the Academic Board convened to consider plaintiff's case. At the hearing, plaintiff "was urged to accept a qualified resignation in lieu of discharge." Complaint at para. 25. He had previously been "warned that any appeal from the Board's recommendation would be futile." Complaint at para. 26. In a brief prepared statement plaintiff asked that he be allowed to graduate. Steffan Affidavit at para. 9. The Board recommended that plaintiff be discharged for insufficient aptitude.

 That same day, April 1, the Superintendent informed plaintiff, in writing, of the Board's recommendation and that he intended to recommend to the Secretary of the Navy that plaintiff be discharged from the Naval Academy. The written notification provided that plaintiff "may submit to the Secretary of the Navy a written statement concerning" the Superintendent's proposed recommendation of involuntary discharge. Exhibit F, Defendants' Memorandum. The notification also explained that the Superintendent would "grant [plaintiff] the opportunity to submit a qualified resignation to the Secretary of the Navy," in which case the Superintendent would forego submitting his recommendation. Id. Plaintiff was instructed to decide, "within twenty-four hours," whether to submit a written statement to the Secretary or his resignation. Id.

 On April 1, plaintiff signed a Statement of Understanding, prepared by the Navy, indicating that he understood that he had the option "to submit a qualified resignation or to be recommended for discharge." Exhibit G, Defendants' Memorandum. The Performance Officer, Major Funk, again briefed plaintiff on his options. Major Funk allegedly made a number of statements which led plaintiff to believe he had no option but to resign:

Major Funk urged me to resign. He stated that if I chose to show cause to the Secretary of the Navy, I would be discharged and the repercussions would be extreme. . . . He repeatedly warned me that the negative aura surrounding an involuntary discharge would adversely affect my selection into another academic program and even my future employment. He added that, if I were discharged, my military discharge certificate would include a code that meant "homosexual" and that if I chose to resign, this code would be omitted.

 Steffan Affidavit at para. 12.

 Plaintiff submitted his qualified resignation to the Naval Academy on April 1. Exhibit H, Defendants' Memorandum. On May 6, 1988, the Assistant Secretary of the Navy accepted plaintiff's resignation. Exhibit I, Defendant's Memorandum. On December 9, 1988, plaintiff wrote the Secretary of the Navy requesting permission to withdraw his resignation. The instant action ...

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