Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 61 EPD ¶42,197, Volker Keith Meinhold, Plaintiff-Appellee v. United States Department of Defense et al., Defendants-Appellants., (Mar. 05, 1993), U.S. Court of Appeals, Ninth Circuit, (Mar. 5, 1993)

Volker Keith Meinhold, Plaintiff-Appellee v. United States Department of Defense et al., Defendants-Appellants.

United States Court of Appeals, Ninth Circuit. No. CV-92-6044-TJH, March 5, 1993

Emergency motion for stay pending appeal from the United States District Court for the Central District of California. Motion denied.

U.S. Constitution--Fifth Amendment

Military Establishments--Homosexual Policy--Stay of Injunction Denied.--

Because the U.S. Department of Defense failed to show that it would be irreparably harmed by a district court’s permanent injunction prohibiting the discharge of homosexuals from the military, their emergency motion for a stay pending appeal of the injunction was denied. There was no conflict between the injunction and a Presidential directive that also precluded such discharges.

Back reference.--¶1213.355 .

Denying stay of injunction issued in (DC Cal 1993) 60 EPD ¶42,046 .

Charles A. Hobbie (argued), Deputy General Counsel, Mark D. Roth, General Counsel, American Federation of Government Employees, AFL-CIO, Washington, D.C., Daniel Minahan (Minahan & Shapiro, P.C.), Alexia, McCashill, Lakewood, Colorado, for Petitioner.

David C. Kane, Assistant General Counsel (argued), Mary L. Jennings, Acting General Counsel, Rita S. Arendal, Deborah Bynum, Martha H. DeGraff, David M. Cohen, Washington, D.C., for Respondent.

Before: Wallace, Chief Judge and Farris, Circuit Judge

Per Curiam: While there is a legitimate dispute as to whether the permanent injunction entered by the district court should extend beyond Meinhold, see Zepeda v. U.S., 753 F.2d 719 (9th Cir. 1983), it is difficult to see how appellants will be substantially harmed pending appeal.

The injunction forbids discharge based on homosexual orientation. The Presidential directive date January 29, 1993, entitled “Ending Discrimination on the Basis of Sexual Orientation in the Armed Forces,” precludes similar discharges. It does direct that those military personnel with homosexual orientation be processed, but they are to be transferred to standby reserve. Because established military terms of art indicate that transfer to the standby reserve is not a discharge from military service, there does not appear to be a conflict between the district court’s January 28, 1993 permanent injunction and the Janurary 29, 1993 Presidential directive. As this Presidential directive specifically calls for an end to the policy found unconstitutional by the district court, appellants have failed to prove they will be irreparably harmed by the district court’s injunction pending appeal. Appellants’ emergency motion for a stay pending appeal of the district court’s permanent injunction to the extent it confers relief on persons other than Meinhold is denied.

The briefing schedule established by this court’s March 5, 1993 order shall continue to govern this appeal.