Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-92-00942-TSZ. Thomas S. Zilly, District Judge, Presiding.
Before: Betty B. Fletcher, Alex Kozinski and Edward Leavy, Circuit Judges. Opinion by Judge Kozinski.
Colonel Margarethe Cammermeyer is a highly decorated nurse who has served in the Army, Army Reserve and National Guard. She has received numerous awards and distinctions, including the Bronze Star for distinguished service in Vietnam, and has held the position of Chief Nurse at a number of military hospitals. While seeking admission to the Army War College, Cammermeyer was interviewed by the Defense Investigative Service in order to obtain a Top Secret security clearance. During the interview, she was asked about her sexual orientation. In a statement signed during the interview, she wrote, "I am a Lesbian. Lesbianism is an orientation I have, emotional in nature, towards women. It does not imply sexual activity." SER Tab 3, Ex. G.
At the time these statements were made, Cammermeyer was serving as member of the Washington State National Guard. The Guard permitted Cammermeyer to retain her position, stating that it would not pursue her discharge unless forced to do so by the Department of the Army. Six months later, the United States Army initiated proceedings to withdraw Cammermeyer's federal recognition and thereby render her ineligible for military service. While these proceedings were pending, Washington Governor Booth Gardner sought to intervene on Cammermeyer's behalf, writing a letter to then-Secretary of Defense Dick Cheney protesting "a senseless end to the career of a distinguished, long-time member of the armed services." SER 148. Despite uniform and resounding praise for Cammermeyer's abilities both as a nurse and a leader, the Army ultimately withdrew Cammermeyer's federal recognition, causing her to be discharged from the National Guard.
Cammermeyer filed suit challenging her discharge, claiming that Army Reg. 135-175*fn1 violated her rights to Equal Protection, Freedom of Speech, Due Process and Privacy, and the Separation of Powers doctrine and principles of Federalism. The district court granted summary judgment for Cammermeyer on her Equal Protection and Due Process claims, and granted summary judgment for defendants on the other claims. See Cammermeyer v. Aspin, 850 F. Supp. 910, 929-30 (W.D. Wash. 1994). The district court then ordered that Cammermeyer be reinstated, that all of defendants' records concerning Cammermeyer's sexual orientation be expunged and that defendants be enjoined from taking any action against Cammermeyer on account of her homosexual status. Id. at 929. The district court also declared that Cammermeyer's discharge exclusively on the basis of her sexual orientation was unconstitutional, and that Army Reg. 135-175, which allowed for discharge on that basis, was unconstitutional as well. Id. Pending appeal, Cammermeyer was reinstated, and Army Reg. 135-175 and Department Defense Directive 1332.30 were replaced by 10 U.S.C. § 654 and a new version of Department of Defense Directive 1332.30. These new regulations implemented the "don't ask/don't tell" policy.*fn2
In Meinhold v. United States Dep't of Defense, 34 F.3d 1469, 1479-80 (9th Cir. 1994), we held that regulations identical to Army Reg. 135-175 did not require discharge on the basis of statements merely expressing one's status as a homosexual. Rather, we concluded, these regulations required discharge only for statements "that show a concrete, fixed, or expressed desire to commit homosexual acts." Id. at 1479. In light of Meinhold, defendants concede that Cammermeyer should not have been separated solely on the basis of her statements. Defendants argue, however, that, under the reasoning of Meinhold, the district court should not have reached Cammermeyer's constitutional claims; they ask us to vacate that portion of the district court's decision declaring Cammermeyer's separation and Army Reg. 135-175 unconstitutional.
Now that defendants have reinstated Cammermeyer and rescinded the regulation under which she was discharged, we don't see what relief we could grant by reviewing the district court's judgment. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996) (case becomes moot when litigants' rights are no longer affected by the action). The Supreme Court has long instructed us that the "Article III [case or controversy requirement] denies federal courts the power 'to decide questions that cannot affect the rights of litigants in the case before them.'" Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 108 L. Ed. 2d 400, 110 S. Ct. 1249 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971)). Because federal courts may resolve only "real and substantial controversies admitting of specific relief," Aetna Life Ins. v. Haworth, 300 U.S. 227, 241, 81 L. Ed. 617, 57 S. Ct. 461 (1937), this case is moot. See Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) ("As a general rule, if a challenged law is repealed or expires, the case becomes moot.").*fn3
Cammermeyer argues that we must reach the merits of her case under City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982). In City of Mesquite, plaintiff challenged two sections of a city's licensing ordinance. Id. at 284-85, 287-88. Before the case reached the court of appeals, the city amended one of the sections. Id. at 289. Despite this change in the law, the Supreme Court decided to reach the merits, noting that "it is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Id. at 289. This rule was born out of the Court's fear that the city would reinstate its allegedly unconstitutional ordinance were the case dismissed as moot, since "the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated." Id. This risk was well-documented, since the city had done precisely that once before and, at oral argument, expressed its intent to do so again. Id. at 289 & n.11.
We have held, however, that a statutory change "is usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed. As a general rule, if a challenged law is repealed or expires, the case becomes moot. . . . The exceptions to this general line of holdings are rare and typically involve situations where it is virtually certain that the repealed law will be reenacted." Native Village of Noatak, 38 F.3d at 1510 (citations omitted). We see no reason to deviate from this approach here.
Nor does this case fall under the exception for cases capable of repetition yet evading review. In order for a case to qualify under this exception, "there must be a 'reasonable expectation' that the same complaining party will be subject to the same injury again [and] the injury suffered must be of a type inherently limited in duration such that it is likely always to become moot before federal court litigation is completed." Native Village of Noatak, 38 F.3d at 1509-10 (citations omitted). Cammermeyer does not argue that the government plans to continue its allegedly illegal course of action against her. Defendants have reinstated Cammermeyer and show no signs of moving to discharge her. Moreover, it is clear that Cammermeyer's injury is not "inherently limited [in] duration," id. at 1510, as evidenced by the many appellate decisions passing on the validity of both the old*fn4 and new policies.*fn5
Cammermeyer also points to her claim for attorneys' fees in arguing the case is not moot. But "claims for attorneys' fees ancillary to the case survive independently under the court's equitable jurisdiction, and may be heard even though the underlying case has become moot." Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980), cert. denied, 450 U.S. 1012, 68 L. Ed. 2d 213, 101 S. Ct. 1723 (1981). The existence of an attorneys' fees claim thus does not resuscitate an otherwise moot controversy. See Diamond v. Charles, 476 U.S. 54, 70-71, 90 L. Ed. 2d 48, 106 S. Ct. ...