McVeigh v. Cohen

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 to show 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 the public 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," Judge Sporkin wrote,

the Plaintiff's complaint is with the Navy's compliance, or lack thereof, with its new regulations under the `Don't Ask, Don't Tell, 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 or she 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 clear that its lack of "credible information" was not as important as the fact that the 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 Communications Privacy 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 a warrant, had given the subscriber notice of its intentions, and had issued a subpoena 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 note that the defenses mounted against gays in the military have been tried before in our nation's history--against blacks and women . . . Surely, it is time to 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 the navy would actually benefit from his continued service; and finally, the "Public Interest" was clear on the basis of privacy and civil rights.