Citation Edit

McVeigh v. Cohen, 983 F.Supp. 215 (D.D.C. 1998) (full-text).

Factual Background Edit

Senior Chief Timothy McVeigh was a highly-decorated, 17-year veteran of the United States Navy. At the time of the Navy’s decision to discharge him, he was the senior-most enlisted man aboard the U.S. nuclear submarine U.S.S. Chicago.

On September 2, 1997 a civilian Navy volunteer, Ms. Hajne, received an email through AOL regarding a toy-drive that she was coordinating for the Chicago crew members’ children. The message came from the alias “boysrch” but was signed by a “Tim”. The volunteer then searched through the “member profile directory” in order to find the sender's profile. The directory specified that “boysrch” was an AOL subscriber named Tim who lived in Honolulu, worked in the military, and identified his marital status as “gay”.

The volunteer proceed to forward the email and directory profile to her husband, a non-commissioned officer. The material eventually found its way to Commander Mickey, the captain of the ship. JAG was called in to investigate the matter as the Navy suspected the “Tim” who authored the email might be McVeigh. The Navy called AOL and an AOL representative affirmatively identified McVeigh as the customer in question.

McVeigh was notified that the Navy had obtained some indication that he made a statement of homosexuality in violation of the Navy’s “Don’t Ask, Don’t Tell, Don’t Pursue” policy and Uniform Code of Military Justice prohibition of sodomy and indecent acts. The Navy advised McVeigh it was commencing an administrative discharge proceeding against him.

The Navy conducted an administrative discharge hearing before a three-member board. McVeigh made an unsworn oral statement that explained the substance of his email to the volunteer and by inference confirmed his authorship of the correspondence. McVeigh presented evidence of prior heterosexual relationships to rebut the presumption of homosexuality, but it was rejected by the Board. McVeigh sued and the Court granted him a postponement for his separation proceeding. However, the Navy initially declined to honor the Court’s request for an additional amount of time to consider this matter. The plaintiff then moved for a preliminary injunction.

Trial Court Proceedings Edit

To prevail on request for preliminary injunction, plaintiff must demonstrate: (1) substantial likelihood of success on the merits; (2) irreparable harm or injury absent injunction; (3) less harm or injury to other parties involved; and (4) service of the public interest.

McVeigh demonstrated a likelihood of success on the merits on his claim that the Navy violated the "Don't Ask, Don't Tell, Don't Pursue" policy, which thus supported the issuance of a preliminary injunction against his discharge from Navy pending a trial on the merits. The "Don’t Ask, Don’t Tell, Don’t Pursue" policy was specifically drafted to allow members of the military to live private lives as gay men and women, so long as their sexual orientation remained unspoken.

McVeigh did not openly express his homosexuality in a way that compromised Don't Ask, Don't Tell. Suggestions of sexual orientation in a private, anonymous email account did not give the Navy a sufficient reason to investigate to determine whether to commence discharge proceedings. An investigation into sexual orientation may be initiated only when a commander has received credible information that there is a basis for discharge. Credible information requires more than just a belief or suspicion that a Service member has engaged in homosexual conduct. All the Navy had was an email message and user profile that it suspected was authored by McVeigh, which should not have triggered any sort of investigation.

McVeigh demonstrated a likelihood of success on the merits on a claim that the Navy violated the Electronic Communications Privacy Act (ECPA) or solicited a violation of the ECPA by an online service provider. The ECPA allows the government to obtain information from an online service provider only if it obtains a warrant or it gives prior notice to the online subscriber and then issues a subpoena or receives a court order authorizing disclosure of the information in question.[1] In soliciting and obtaining over the phone personal information about McVeigh from AOL, the government failed to comply with the ECPA. The Navy directly solicited the information from AOL. The Navy officer did not identify himself when he made the request to AOL and there is no evidence that would indicate that the Navy would have proceeded without this information from AOL affirmatively linking the email to McVeigh.

Without immediate intervention, McVeigh will lose his job, income, pension, health, and life insurance and suffer the stigma of being declared unfit for service. McVeigh had an exemplary service record for 17 years and had risen in the ranks to become the most senior non-commissioned officer on his ship. The harm in absence of a preliminary injunction against his discharge from Navy was sufficiently irreparable to support issuance of a preliminary injunction pending trial.

The public has an inherent interest in the preservation of privacy and the enforcement of the ECPA. Where the government has violated a federal statute to brand the plaintiff as a homosexual, the actions of the Navy must be closely scrutinized. Don’t Ask, Don’t Tell draws a fine balance between the interests of gay service members and the Armed Forces. In this case, the Navy went further than permitted as McVeigh did not publicly announce his sexual orientation.

References Edit

  1. 18 U.S.C. §2703(b)(1)(A)-(B), (c)(1)(B).

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