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November 15, 1989

RICHARD CHENEY, Secretary of Defense, et al., Defendants

The opinion of the court was delivered by: GASCH


 This matter is before the Court on "Defendants' Renewed Motion for Rule 37 Sanctions and For Stay of All Proceedings in this Case Until Plaintiff Obeys this Court's Discovery Order." Defendants filed this motion after plaintiff refused to respond to defendants' deposition questions concerning whether or not plaintiff had engaged in homosexual acts. Defendants ask that plaintiff's suit be dismissed under Rule 37(b). In the alternative, they ask that the Court enter an order establishing as a fact that plaintiff has engaged in homosexual acts. For the reasons that follow, this Court dismisses plaintiff's suit.


 This is an action for declaratory and injunctive relief brought against the Secretary of Defense, the Secretary of the Navy, the Superintendent of the Naval Academy, and the Commandant of Midshipmen. Plaintiff Joseph 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 alleges that his separation violates the constitutional rights of free speech and association, due process, and equal protection. Plaintiff seeks a declaration that the Navy regulations under which he was forced to resign be declared unconstitutional. He also seeks an order requiring defendants to award him his diploma and reinstate him in the service.

 On July 21, 1989, 733 F. Supp. 115, this Court denied defendants' motion to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6). The Court ordered the parties to submit a briefing schedule for summary judgment motions to resolve the ultimate issue in this case -- the lawfulness of the Navy's regulations. Pursuant to the proposed briefing schedule timely submitted by the parties and approved by the Court, defendants' motion for summary judgment was due September 18, plaintiff's motion for summary judgment was due October 23, defendant's reply brief was due November 20, and plaintiff's reply brief was due December 8.

 Prior to submitting its motion for summary judgment, however, defendants sought to depose the plaintiff. On August 22, plaintiff received a notice calling for the deposition of Joseph Steffan on August 30. On that same day (August 22) plaintiff's counsel, Mr. Wolinsky, informed defendants that neither he nor his co-counsel could attend a deposition on August 30. Mr. Wolinsky also protested that defendants were reneging on an agreement reached while negotiating the briefing schedule whereby defendants agreed not to depose Steffan until after filing their motion on September 18. Mr. Wolinsky further asserted that before allowing plaintiff to be deposed he would require (1) disclosure of certain documents sought in an earlier discovery request, and (2) the deposition of a Navy representative who was knowledgeable about the rationale for the Navy's policies concerning homosexuals.

 Defendants denied the existence of such an agreement. In their view, plaintiff was simply demanding discovery concessions prior to agreeing to appear for a properly noticed deposition.

 Plaintiff moved for a protective order. Defendants moved for sanctions under Rule 37(d) for plaintiff's failure to appear at his duly noticed deposition. At the request of counsel, the Court held a hearing to resolve the dispute and to determine whether sanctions were warranted. The hearing was held September 14. At its conclusion, the Court declined to impose sanctions but ordered that plaintiff's deposition be taken prior to defendants' submission of their motion for summary judgment. During the hearing, the following exchange between the Court and plaintiff's counsel took place:

THE COURT: I want to fix a date for discovery. The deposition of the plaintiff. What do you come up with?
MR. WOLINSKY: Your Honor, let me just be clear on one thing. They're trying to turn a status case into a conduct case. In the administrative proceeding that they initiated, they discharged my client on the basis of his status. If he is asked at a deposition have you ever engaged in conduct I'm going to direct him not to answer.
THE COURT: And I'll direct him to answer.
MR. WOLINSKY: And we will then see where we are.
THE COURT: You know where you are right now. You've got to answer it or I'll dismiss your case. When are you going to have his deposition?

 Transcript of September 14, 1989, at 16-17. The Court then ordered plaintiff's deposition to be taken two days later, on September 16. Defendants' motion for summary judgment was to be submitted two ...

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