Appealed from U.S. District Court for the Eastern District of Wisconsin.
Before NEWMAN, Circuit Judge, SKELTON, Senior Circuit Judge, and ARCHER, Circuit Judge.
SKELTON, Senior Circuit Judge.
Petitioner, Miriam ben-Shalom, brought suit for a writ of mandamus against respondents, Clifford Alexander, the Secretary of the Army, or his successor; and Commanding Officer, United States Army, Headquarters, Third Battalion, 351st Regiment, Fourth Brigade, 84th Division (the Army), seeking to compel them to reinstate her as a member of the United States Army Reserves. Ms. ben-Shalom had been honorably discharged from the Army because she had stated on several occasions that she was a homosexual, although there was no evidence that she had actually ever engaged in a homosexual act.
The district court granted the request of petitioner and issued the writ of mandamus on the ground that the action of the Army and the regulation on which it acted violated petitioner's rights of free speech, due process, and personal privacy contained in the First, Fifth and Ninth Amendments to the Constitution. The court ordered the Army to physically reinstate petitioner to her former position. The Army did not appeal from that order.
A detailed account of additional facts and prior proceedings in the case is set forth in the Army's brief, which is substantially as follows.
Facts. Petitioner Miriam ben-Shalom enlisted in the Army for a three-year period of Reserve duty in November 1974. At various times during her enlistment, ben-Shalom publicly acknowledged that she was homosexual. At a hearing in September 1976, testimony was adduced that she had publicly acknowledged her homosexuality during conversations with fellow reservists, in an interview with a reporter for her division newspaper, and in class, while teaching drill sergeant candidates.
In December 1975, ben-Shalom was informed that she was being considered for discharge from the Reserves for engaging in homosexual activities. Later, in June 1976, the Army revised its allegations to process ben-Shalom under a section of the then-existing Army regulations that permitted discharge of any soldier who "evidences homosexual tendencies, desire, or interest, but who is without overt homosexual acts." Ch. 7-5b(6), A.R. 135-178 (1977).*fn1 At her request, ben-Shalom was given a hearing before a board of officers. After taking evidence, the board recommended that ben-Shalom be given an honorable discharge from the Service as "unsuitable" because of her admitted homosexuality. Ben-Shalom wrote to the Commander, Fifth Army, requesting that he reject the board's recommendation and retain her in the Reserves. On December 1, 1976, she was notified that her request had been denied and that she was honorably discharged, effective that date.
Prior Proceedings. Ben-Shalom brought suit in district court for the Eastern District of Wisconsin, alleging that her discharge violated the First, Fifth, and Ninth Amendments to the Constitution. On May 20, 1980, the district court granted her motion for summary judgment, finding that her discharge violated her rights of free speech, privacy, and substantive due process because the regulations then in effect were overbroad. Based on those findings, the court issued a writ of mandamus on the same date directing that "the Department of the Army shall reinstate [ben-Shalom] as a member of the army reserves with all duties, responsibilities and privileges earned by her prior to her discharge."
After filing a notice of appeal and obtaining a stay of the district court's order, the Secretary voluntarily dismissed the appeal, and the district court's order became final on November 24, 1980. As a result of the district court's order, the Army changed ben-Shalom's military records to reflect an honorable discharge due to the expiration of her term of enlistment on November 11, 1977. The Army also offered to pay ben-Shalom backpay for the eleven months that were remaining on her enlistment at the time of her original discharge. Moreover, ben-Shalom's trial attorney advised the United States Attorney that ben-Shalom no longer desired to return to the Army and would consider a monetary settlement. Thereafter, the parties engaged in settlement negotiations, primarily over the amount of the monetary offer. In March or April 1982, the Army extended its last offer to ben-Shalom of $1,704.84.*fn2
The matter was left unclear until September 1983, when ben-Shalom filed a motion for contempt in the district court alleging that the Army had not complied with the court's reinstatement order and seeking sanctions against the Secretary. On June 6, 1984, the district court, after holding a hearing, denied ben-Shalom's motion for contempt and ordered that the Army pay her $991.16 in backpay for the eleven-month period that was remaining on her enlistment when she was discharged.
Ben-Shalom appealed the June 6, 1984, order to the Court of Appeals for the Seventh Circuit. In an unpublished order dated September 9, 1985, the Seventh Circuit affirmed in part and vacated in part. The court of appeals affirmed the district court's denial of ben-Shalom's motion to hold the Secretary in contempt, stating that throughout the negotiations the Secretary "understandably believed that ben-Shalom was not requiring compliance with the district court's reinstatement order . . . . Under these circumstances we conclude that ben-Shalom failed to establish by clear and convincing evidence that respondents' conduct was contumacious."
The court of appeals, however, vacated the district court order awarding ben-Shalom $991.16 in backpay. The appellate court viewed the monetary award as reopening the district court's earlier reinstatement order and stated that such reconsideration of the earlier order was not permissible in a civil proceeding for contempt. The court of appeals also set forth the procedure to be followed on its remand to the district court as follows:
To the extent ben-Shalom still insists upon compliance with the district court's reinstatement order, she may appropriately request the [district] court's help in the enforcement of its final judgment pursuant to Fed. R. Civ. P. 70 . . . On the other hand, if [the Army] believes the court's reinstatement order is incorrect or invalid, the proper course of action is to ...