McVeigh v. Cohen

Plaintiff
Timothy R. McVeigh
Defendant
William Cohen, U.S. Secretary of Defense, et al.
Plaintiff's Claim
That by investigating his sexual orientation, the navy violated his rights under the Electronic Communications Privacy Act of 1996, the Administrative Procedure Act, Department of Defense policy, and the Fourth and Fifth Amendmentsto the U.S. Constitution; therefore, he sought that the Navy be enjoined from its attempts to discharge him.
Chief Lawyer for Plaintiff
Christopher Wolf
Chief Defense Lawyer
David Glass
Judge
U.S. District Judge Stanley Sporkin
Place
Washington, D.C.
Date of Decision
26 January 1998
Decision
That plaintiff's case passed a four-part test for preliminary injunction, andthe defendants were preliminarily enjoined from taking any adverse action against the defendant on the basis of his alleged sexual orientation, pending final resolution of the plaintiff's complaint.
Significance
This case attempted to deal with the new policy of "Don't Ask, Don't Tell" and its constitutionality.
One of the first issues approached by President Bill Clinton after his inauguration in January of 1993 was the question of gays in the military. For years, of course, homosexual males and females had served in the armed forces without announcing their sexual orientation. After President Clinton was elected,he and various activist groups wanted to gain full recognition for gays in the military. This would include the benefits that would accrue to domestic partners, and would prevent the military services from discharging members on the basis of sexual orientation. After a long and bitter fight between the president, the military, and Congress, the various sides reached a compromise known popularly as "Don't Ask, Don't Tell"; or, as Judge Sporkin characterizedit in McVeigh v. Cohen, "Don't Ask, Don't Tell, Don't Pursue." This meant that the military would not ask personnel about their sexual orientation,and personnel would not volunteer information--or, presumably, make any overt displays of their sexuality. Neither side would pursue the issue without provocation. Few were entirely happy with this "solution," but it seemed reasonably fair, relying as it did on the good behavior of both parties. At the time, however, some observers considered a conflict inevitable, as one side or another would overstep the boundaries.
"Boysrch"--or, the Other Timothy McVeigh
Ever since the Oklahoma City bombing of 19 April 1995, the name "Timothy McVeigh" has been highly recognizable--so much so that the judge in McVeigh v.Cohen began his ruling by referring to "Plaintiff Timothy R. McVeigh, who bears no relation to the Oklahoma City bombing defendant . . . " In addition to his name and its unfortunate connotation, U.S. Navy Senior Chief TimothyMcVeigh had at least one other problem in his life: he was a highly decorated noncommissioned officer in the navy, but if his superiors had reason to believe he was gay, he could be discharged. If McVeigh continued in the militaryfor another three years, he would be eligible to retire with outstanding benefits; but if he suffered a less than honorable discharge, he would have little to show for his 17 years of service. There was no reason, however, to reveal his sexual orientation, if indeed he was gay: under the "Don't Ask, Don'tTell" policy, McVeigh was under no compunction to make a statement as to hispreferences, nor was the navy free to pry into his personal life.
Then on 2 September 1997, McVeigh sent a fateful electronic mail, or e-mail,message through the America Online Service (AOL). The note was a response toa request from Helen Hajne, a civilian coordinating a drive to collect toys for children of U.S.S. Chicago crew members. McVeigh, who served on theChicago, a submarine, sent her a note under the alias "boysrch@aol.com," and signed it "Tim." Hajne, also an AOL subscriber, searched the alias onthe member directory and discovered that "boysrch" was named Tim; worked forthe military; and lived in Honolulu, Hawaii. There was no further information as to his full name, address, or phone number; however, "Tim" listed his marital status as "gay," and included among his interests "boy watching" and "collecting pics of other young studs."
Hajne's husband, like McVeigh, was a non-commissioned officer aboard the Chicago, and after she passed the e-mail message and profile to him, the materials ultimately made their way to the desk of Commander John Mickey. Thelatter, the equivalent of a general in the army, served as captain of the ship--and McVeigh's commanding officer. He passed the evidence to Lieutenant Karin S. Morean, the principal legal adviser for the ship and a member of the JAG (Judge Advocate General's) Corp. By this point, the navy suspected McVeighas the "Tim" who had written the note, but just to make sure, Morean asked aNavy paralegal, Legalman First Class Joseph M. Kaiser, to contact AOL. When Kaiser called AOL's toll-free number, he spoke with a technical services representative. Without identifying himself as a member of the navy--let alone ofits legal corps-- Kaiser told the AOL representative that he had received a fact sheet, and wanted to confirm a member's profile. His intention, as per Morean's orders, was to connect "boysrch" with the user profile which McVeigh had filled out under his own name; and indeed, the AOL representative confirmed that "boysrch" and McVeigh were one and the same.
After receiving this verification, Morean contacted McVeigh to inform him that the navy had obtained an indication that he had made "a statement of homosexuality" in violation of the "Don't Ask, Don't Tell" policy. She advised himof his right to remain silent in relation to the military's prohibition against "sodomy and indecent acts" covered in the Uniform Code of Military Justice(UCMJ). Soon afterward, on 22 September 1997, the navy informed McVeigh thatit had commenced an "administrative separation," or discharge proceedings, on the basis of his "homosexual conduct, as evidenced by your statement that you are a homosexual."
Six weeks later, on 7 November 1997, the navy conducted a discharge hearing before a three-member board. McVeigh testified regarding his e-mail message toHajne, thus implicitly identifying himself as its author, but also presentedevidence that he had been involved in several heterosexual relationships--including an engagement to one woman. Nonetheless, the board ruled that the navy had sufficient evidence to charge McVeigh with "homosexual conduct." This being a dischargeable offense, the navy further accelerated its proceedings tomake McVeigh's discharge final at 5:00 a.m. Eastern Standard Time on Friday,16 January 1998.
The day before this was to happen, however, McVeigh commenced his lawsuit inU.S. District Court, naming Defense Secretary William Cohen as defendant. Thenavy put off his separation until Wednesday, 20 January. On Wednesday morning the court held a hearing at which the navy initially refused to honor the judge's request for more time to consider the case. It rescheduled the discharge to take place on Friday, 23 January. But on 22 January, the navy told thecourt that it would give it until Tuesday, 27 January, to make a decision onthe case. If a decision was not made before that date, McVeigh would be removed from service. The court, in the person of Judge Stanley Sporkin, made itsruling on 26 January.
Judge Sporkin Rules
In order to be granted his request for preliminary injunction--that is, for the court to order the navy to stop its discharge proceedings--McVeigh had toshow four things, in Judge Sporkin's words: "1) a substantial likelihood of success on the merits; 2) irreparable harm or injury absent an injunction; 3)less harm or injury to the other parties involved; and 4) the service of thepublic interest." It was Judge Sporkin's holding that McVeigh met all four conditions, and for that reason the court granted a preliminary injunction barring his discharge.
Of the four criteria, Judge Sporkin devoted the most attention to the first:McVeigh's chances of winning on the merits of his case. "As its core," JudgeSporkin wrote,

the Plaintiff's complaint is with the Navy's compliance, or lack thereof, with its new regulations under the `Don't Ask, Don'tTell, Don't Pursue' policy. Plaintiff contends that he did not `tell,' as prescribed by the statute, but that nonetheless, the navy impermissibly `asked'and zealously `pursued.'

The guidelines governing that policy required that a commander receive "credible information" regarding sexual orientation, not "just a belief or suspicion." Credible information would include the testimony of "a reliable person" that he or she had directly observed an act or statement by the person which "a reasonable person would believe was intended to convey the fact that he orshe engages in or has a propensity or intent to engage in homosexual acts." In the present case, the navy had nothing more than an e-mail message and a user profile which it merely suspected were authored by the plaintiff.
Still addressing the first of the four criteria, Judge Sporkin made it clearthat its lack of "credible information" was not as important as the fact thatthe navy had "affirmatively [taken] steps to confirm the identity of the e-mail responders" and thus "violated the very essence of `Don't Ask, Don't Pursue' by launching a search and destroy mission." Not only did this violate the"Don't Pursue" policy, it was in violation of the Electronic CommunicationsPrivacy Act (ECPA) of 1996. The latter, passed by Congress in response to fears over privacy on the Internet, gave the government authority to obtain information from an online service provider such as AOL only if it had obtained awarrant, had given the subscriber notice of its intentions, and had issued asubpoena or received a court order authorizing its action.
Judge Sporkin concluded the "Substantial Likelihood of Success on the Merits"section of his four-part test with a stern rebuke of the navy:

this court . . . cannot understand why the Navy would seek to discharge an officer who has served his country in a distinguished manner just because he might be gay. Plaintiff's case `vividly underscores the folly of a policy that systematically excludes a whole class of persons . . . ' [T]he Court must notethat the defenses mounted against gays in the military have been tried before in our nation's history--against blacks and women . . . Surely, it is timeto move beyond this vestige of discrimination and misconception of gay men and women.

Judge Sporkin made short order of the other three criteria: clearly the less than honorable discharge would cause "Irreparable Harm"to McVeigh; the "Harm to Other Parties" was nil if McVeigh won, whereas thenavy would actually benefit from his continued service; and finally, the "Public Interest" was clear on the basis of privacy and civil rights.
Judge Sporkin's Ruling and the Continuing Saga
The present case only being concerned with a preliminary injunction, Judge Sporkin offered speculation that "when this case is finally determined . . . [it will be] on the basis of the `Don't Ask, Don't Tell, Don't Pursue' policy."But in order to make that policy work, both sides would need to exercise some restraint. Up to this point, it was clear who had failed to do so: "So far. . . while Plaintiff complied with the requirements imposed on him . . . theDefendant went further than the policy permits." Judge Sporkin ordered that,on the basis of the plaintiff's show of good cause, the motion for a preliminary injunction was granted. The navy was thus enjoined from taking any action against McVeigh on the basis of his sexual orientation, "pending final resolution of Plaintiff's Complaint." Finally, the two parties were ordered to appear again in court on 29 January 1998 for a status conference, at which timethey would together determine a briefing schedule and a date for a hearing on final injunctive relief.
As David Loundy of the Chicago Daily Law Bulletin reported, McVeigh had a possible case not only against the navy, but against AOL for providing information that it should not have provided. AOL, as Loundy wrote, "pleaded `OOPs.' McVeigh is reportedly considering a lawsuit."
With regard to McVeigh, the "Gay/Lesbian Issues" online site reportedthat the navy had "taken a hard line since Sporkin's ruling." It had refusedto return McVeigh to his former chief of boat position, an action which DavidGlass of the Justice Department defended by referring to "the confined conditions aboard the nuclear submarine." The navy had until 30 March 1998 to appeal the decision, and on 27 March Judge Sporkin ordered the military to returnMcVeigh to his former position. According to attorney Christopher Wolf, McVeigh had been put on "demeaning" jobs such as trash detail, and had been subjected to a $745-a-month reduction in pay. Judge Sporkin scheduled a compliancehearing for 1 June, and ruled that the navy would have to pay McVeigh's legal expenses. It is not likely that this will be the last federal case testingthe "Don't Ask, Don't Tell" policy.
Impact
Involving as it did gay rights and the Internet, McVeigh dealt with issues that regularly made headlines in the 1990s; but it also involved concerns perennial to Americans, especially the right to privacy. Loundy offered a few conclusions in this regard. The "Bork Bill"--named after Judge Robert Bork, whose movie rental records had been obtained by a journalist during Bork'sultimately unsuccessful Supreme Court nomination hearings in 1986--had been "One of the fastest laws of any kind passed in this country," Loundy noted. "In other words . . . the minimal privacy rights U.S. citizens still enjoy areimportant." Second, with regard to AOL, "`Oops' is not a recognized defense under the Electronic Communications Privacy Act." Third, "if you are a user ofelectronic communications, do not be dumb . . . " McVeigh's troubles could have been avoided, Loundy suggested, had he not made the error of writing to Hajne under the "boysrch" profile. This may be true, but the case also raisedserious questions about the military's policy with regard to gay members, andthe lengths to which service branches will go in researching and prosecutingsuspected homosexuality.
Related Cases

• Elzie v. Aspin, 897 F.Supp 1 (1995).
  
• Able v. United States, 88 F.3d 1280 (1996).
  
• Bohach v. The City of Reno, 932 F.Supp. 1232 (1996).
  
• Thomasson v. Perry, 80 F.3d 915 (1996).
  
• Richenberg v. Perry, 97 F.3d 256 (1996).
  
• Phillips v. Perry, 106 F.3d 1420 (1997).
  
• United States v. Charbonneau, 979 F.Supp. 1177 (1997).

Electronic Communications Privacy Act of 1986
The Electronic Communications Privacy Act (ECPA) began as an "anti-wiretapping" law, and was intended to curtail the government's ability to wiretap telephone conversations without the consent of the parties. The need for this protection from government eavesdropping became clear after the Watergate scandalduring President Nixon's administration in the 1960s. The original act demanded a "judicial warrant" be issued before telephone conversations could be intercepted.
In 1986, President Reagan signed the ECPA extending the areas of protection.In addition to previous provisions against government wiretapping of telephones, all types of electronic communications are protected from eavesdropping.No data or voice transmissions may legally be listened in on by any individual or business. In addition to public and private telecommunications carriersand computer transmittals, also included are communications transmitted on pagers, electronic mail (e-mail), and cell phones. The act also prohibits "unauthorized access" to any stored messages on a server, as well as prohibiting the "interception" of any communications in process.
Some limitations in the act may allow an employer to review an employee's e-mail, or a system operator to turn over information to authorities if an e-mail message suggests illegal activity.
Sources
http://www.digitalcentury.com/encyclo/update/ecpa.html
http://www.wsrv.clas.virginia.edu/~klb6q/infopaper/ECPA.html.