Can a civil court make a binding rule on the U.S. military?

I was watching a syndicated repeat of* Boston Legal *this morning (one in which they mention Hillary and Obama so it must be very recent) in which the character Shirley Schmidt (Candice Bergen) represents a gay general suing to remain in the military. (I don’t watch the show and I didn’t see the full episode so I’m not exactly sure of the details.) In the end the judge (Henry Gibson) rules that it is disgraceful to discharge him for violation of Don’t Ask Don’t Tell in time of war and injoins the military to stop the discharge.

Is this at all feasible? Can the U.S. military be sued as if it were a corporation? For that matter, could somebody discharged under D.A.D.T. sue for punitive damages and, if they do and if they win, would they have any hope of collecting?

It is very much feasible and the episode seems reminiscent of a recent case out of the Ninth Circuit, * Witt v. Department of the Air Force*

Although the courts typically display great deference to the military in matters of discipline, the military does not operate outside the usual Constitutional constraints on executive branch operations. The decisions of courts-martial, which are Article I tribunals, must be reviewable in the Article III courts (US district courts, US courts of appeals, and SCOTUS).

As to the availability of punitives for discharge under DADT, that would not likely be forthcoming. DADT is mandated by Congress, so while it is bad policy and, in my view, a violation of the Equal Protection Clause, discharge pursuant to it is not the sort of reckless lawlessness that gives rise to a claim for exemplary damages.

The government is sued all the time for things ranging from violation of civil rights to suits under the Federal Tort Claims Acts and successful litigants have no trouble collecting. (Although it used to take a special act in Congress, that hasn’t been the case for decades.)

Like all interesting legal questions, the answer is: It depends. The best general answer that could be offered is that the military is not uniquely insulated from suit as compared to other US government actors. The US military, as a branch of the federal government, can be sued in civil court. There was a big case recently in which the US Navy was sued for their use of sonar that damages whales. Such claims are analyzed like any other suit against the government. [See, e.g., Dep’t of the Army v. Blue Fox, 525 U.S. 255 (1999)].

However, the question of who exactly can be sued (individual officers or the organization as a whole) and for what (injunction, damages, punitive damages) depends on a lot of other factors. The two biggest factors are sovereign immunity and qualified immunity. Generally speaking, the Federal Government has sovereign immunity from suit, and has only waived that immunity for damages suits in certain circumstances. Also, individuals acting according to federal policy generally have qualified immunity from suit.

To answer your specific question, it is unlikely that someone could successfully sue for damages for being discharged by DADT. Since DADT is federal law, they would have to claim that discharge under DADT violates the Constitution. Their most plausible arguments would be First Amendment and Fourteenth Amendment arguments, and they would have to argue that Bivens extends to the First Amendment, to Equal Protection, or to Substantive Due Process. It is not completely out of the question, though it is pretty unlikely. The officers involved in the discharge would almost certainly have qualified immunity.

Nitpick on Kimmy’s otherwise excellent post: Aren’t Courts Martial Article II courts, under the President’s Commander-in-Chief power? Or are they considered Article I because of the UCMJ? My impression was that Article I courts were created out of whole cloth by Act of Congress to facilitatie particular classes of controversy without them clogging up the Article III courts, for example, a Social Security appeal being adjudicated in a SSA administrative court, with recourse to Article III courts possible when there’s a question of law involved. That would not, IMO, apply to courts martial.

A court-martial isn’t a command structure, it is a body that makes quasi-judicial findings of fact and applies the UCMJ to those facts. You are correct that the Congressional authority to promulgate the UCMJ arises out of Article I (namely, U.S. Const., art. I, sect. 8, cl. 14). Although there is apparently literature attesting to the existence of Article II courts, they seem to be exceedingly rare; and every source I’ve seen has placed the courts-martial in the Article I camp.

Don’t know if the court in Boston Legal was a Massachusetts state court, in which case it couldn’t do what you’ve described. The DoD (represented by the U.S. Attorney for Mass., most likely) would move to have the case removed to U.S. district court, which would almost surely be granted. But if the general was discharged through court-martial rather than an administrative proceeding, his appeal would go here, United States Court of Appeals for the Armed Forces - Wikipedia, and then directly to the U.S. Supreme Court, with no stop in any court found within Mass., I believe.

that was my reaction when that episode aired last spring. Gibson played some sort of a Mass. state court judge, so I would have thought that the first step taken by the lawyer representing the federal government would be to challenge the court’s jurisdiction.

The federal government convened an Article II court in the US sector of Berlin in 1979, to try two East Germans accused of hijacking a Polish airplane to seek freedom in the West. Since the airplane landed in the US sector of Berlin, which technically was still under military occupation, the US was able to assert jurisdiction to try the two accused. The Article II court was convened under the President’s military authority over territory occupied by the US military.

The judge of the Article II court was a federal District Court judge appointed ad hoc to the Berlin court. He later wrote a book about it: Judgment in Berlin. It was later made into a movie of the same name, starring Martin Sheen and with a bit part by Sean Penn, whose father Leo Penn was the director of the movie.

This tribunal (The United States Court for Berlin) actually existed (in theory) since 1945, but remained vacant until 1979 because the Western powers allowed West Berlin to be governed by the existing West German government. This was the one and only case it ever tried.

Of particular interest was Cyrus Vance’s insistence that, as the tribunal was an organ of the State Department, he could instruct the judge on how to decide. Needless to say, this was not a particularly popular opinion.

Yes - that’s a running theme of Judge Stern’s book. Needless to say, he did not agree with Vance’s judicial philosophy.

What an idjit. If you’re going to insist on that, just appoint some Asst. SecState to conduct an administrative hearing… but then, he or she couldn’t impose prison time in the event of a conviction, so I guess you need a judge. And a judge in a democracy must be independent, meaning the SecState can’t tell him what his decision must be. And around and around we go.

you would probably enjoy the book, Elendil’s Heir - interesting example of how a judge can operate in such an unusual situation.