APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Seitz, Chief Judge, Adams, Circuit Judge, and Lacey,*fn* District Judge.
John F. Lehman, Jr., Secretary of the Navy (the Secretary), appeals from so much of a district court order as permanently enjoined the Secretary from ordering appellee Gregory J. Dougherty (Dougherty) to three years' active duty as an enlisted man in the United States Naval Reserve. No cross appeal was taken by Dougherty from that part of the district court's order upholding Dougherty's discharge from the United States Naval Academy (Academy).
The following facts are for the most part undisputed. Dougherty enlisted in the Naval Reserve on May 22, 1975, for a six-year term and entered upon active duty as an enlisted man on or about September 5, 1975. Following "boot camp," Dougherty attended electronics training school, in August 1976 was transferred to the Naval Academy Preparatory School, and in June 1977 entered the Naval Academy.
In the early morning hours of November 22, 1980, when Dougherty was in his final year at the Academy, he and four other male midshipmen engaged in sexual relations with a female midshipman in Dougherty's room. This led to the Academy filing charges against Dougherty, who, after consulting with his military counsel, Lieutenant Commander John B. Holt, waived his right to an Administrative Conduct Hearing and, on December 3, 1980, pleaded guilty to charges of conduct unbefitting an officer of the Naval Service and of aiding, counseling and procuring the commission of an offense.
On December 5, 1980, Rear Admiral W. F. McCauley, Commandant of Academy Midshipmen, conducted a two-minute hearing. Dougherty was present but his counsel was not permitted to attend. The hearing concluded with Admiral McCauley's recommendation to the Superintendent of the Academy that Dougherty be "separated from the U.S. Naval Academy for unsatisfactory conduct." Supp. App. at 5.
On December 6, 1980, Dougherty received another hearing, this time before Vice Admiral William P. Lawrence, Superintendent of the Academy. Dougherty once again was not permitted counsel. The Superintendent then prepared a report to the Secretary on December 11, 1980, recommending that Dougherty be discharged from the Academy "in accordance with 10 U.S.C. § 6962." Supp. App. at 4. Dougherty and his counsel were permitted to examine the report, and Dougherty submitted a written response. Supp. App. at 6-10. The Superintendent thereafter met with the Secretary, bringing to the meeting the case files, together with seven signed statements of midshipmen who had either participated in, observed, or heard about the incident in question.
On January 14, 1981, the Secretary issued an order discharging from the Academy Dougherty and another male midshipman also involved in the November 22, 1980, incident, and ordering them to active duty for a period of three years. The woman involved was allowed to resign without an active duty order. The remaining male midshipmen implicated were permitted to remain at the Academy and were otherwise disciplined.
On the day that Dougherty was ordered to active duty, he filed suit in the United States District Court for the Eastern District of Pennsylvania, seeking a temporary restraining order and preliminary and permanent injunctive relief. The district court entered a temporary restraining order on January 14, 1981; and thereafter, following a hearing on February 4, 1981, preliminarily enjoined the Secretary from ordering Dougherty to active duty but upheld the Secretary's right to discharge Dougherty from the Academy. App. 21. Following trial on June 2, 1981, an order was entered, again upholding the Secretary's right to discharge Dougherty from the Academy but permanently enjoining the Secretary from ordering Dougherty to active duty, and it is this latter portion of the order that we address on this appeal.
Exploring first the statutory basis for discharging Dougherty from the Academy, 10 U.S.C. § 6962 provides:
(a) The Superintendent of the Naval Academy shall submit to the Secretary of the Navy in writing a ...