relief; (3) administrative appeal would be 'futile'; and (4) in certain instances a plaintiff has raised a 'substantial constitutional question.'" Id. (citation omitted).
Three of these exceptions apply to the Able plaintiffs. First, to require plaintiffs to exhaust administrative remedies would be to place them in danger of the same imminent and irreparable injury that motivated this court to grant the preliminary injunction. Able I, at 1043; Able II at 3. Second, in Able II this court also held that exhaustion was not required because "'plaintiffs raise constitutional questions." Id.
Third, plaintiffs lack a meaningful or "adequate" administrative remedy. Under the exhaustion doctrine "a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." Guitard, at 740 (emphasis added) (plaintiff sought federal review after a Board of Inquiry recommended discharge). See also, Michaelson v. Herren, 242 F.2d 693, 696 (2d Cir. 1957) (plaintiff sought to enjoin his discharge); Guerra v. Scruggs, 942 F.2d 270, 275-77 (4th Cir. 1991); Muhammad v. Secretary of the Army, 770 F.2d 1494, 1495 (9th Cir. 1985); Von Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980).
The Able plaintiffs do not allege that they face pending discharge proceedings; rather, they identified themselves as gay or lesbian when they brought this case. They were not obliged to await discharge proceedings before bringing their action. The exhaustion requirement is inappropriate where plaintiffs are not seeking review of an adverse administrative determination. cf., Guitard at 740.
Furthermore, exhaustion would mean "allow[ing] defendants to subject plaintiffs to administrative discharge proceedings [to] prove that they have no intent or propensity to engage in homosexual acts." Able II, at 3. See also, Defendants' Memorandum in Support of Motion to Dismiss, at 13 & n.7 (citing notice and hearing requirements for discharge proceedings and the "new procedures which provide each plaintiff with an opportunity to rebut [the propensity presumption]).
Because an administrative agency may not correct an Act of Congress, see Johnpoll v. Thornburgh, 898 F.2d 849, 851 (2d Cir. 1990), plaintiffs could not successfully attack the underlying constitutionality of the Act and Regulations through administrative proceedings. They could only try to rebut the presumption of a propensity to engage in homosexual acts. Even if plaintiffs could do so, they would not obtain the relief they seek -- namely, the right to identify themselves as homosexual and the right not to be discriminated against on the basis of their sexual orientation.
Because second circuit case law supports this court's conclusion that exhaustion is not required, there is no substantial ground for difference of opinion, see Walker v. Eastern Air Lines, Inc., 785 F. Supp. 1168, 1174 (S.D.N.Y. 1992), and certification is not appropriate.
Defendants also seek to certify this court's ruling that plaintiffs' equal protection claim survived a threshold 12(b)(6) motion to dismiss. The court finds this question not ripe for appellate review.
The court should not freely certify orders involving the sufficiency of pleadings, see Gottesman v. General Motors Corp., 268 F.2d 194, 196 (2d Cir. 1959), in part because "inherent in the requirements of section 1292(b) [certification] is that the issue certified be ripe for judicial determination." Oneida Indian Nation, etc. v. County of Oneida, 622 F.2d 624, 628 (2d Cir. 1980).
Where the record has not yet developed far enough to permit considered appellate disposition of the claim presented, the case may not be "ripe" for interlocutory review. See Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979) ("Consideration of the factual basis must be such that a sound premise exists upon which the legal issues can be determined with precision"); 16 Charles A. Wright, et al., Federal Practice and Procedure § 3930, at 157 and n.3; James W. Moore, et al., Moore's Federal Practice P 110.22, at n.26.
In Able II, this court held that, even under minimum rational basis scrutiny and with appropriate deference to congressional legislation in the military context, "plaintiffs are entitled to attempt to prove that the findings underlying the Act are based solely on prejudice or fear of prejudice, see Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882, 80 L. Ed. 2d 421 (1984), or otherwise that there is no rational relationship between the Act's classification and a legitimate government purpose." Able II at 5. See also, City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 446, 448-451, 105 S. Ct. 3249, 3258, 3259-60, 87 L. Ed. 2d 313 (1985).
Plaintiffs have "'the burden . . . to negative every conceivable basis which might support'" the legislative enactment. Heller v. Doe, 125 L. Ed. 2d 257, 113 S. Ct. 2637, 2643 (1993) (citation omitted). It is only logical, then, that plaintiffs should have an opportunity to make such a showing.
Because plaintiffs should be allowed to develop the factual record before a determination is made as to the constitutionality of the Act and Regulations, the court's order denying defendants' motion to dismiss the equal protection claim is not ripe for appellate review.
The same reasoning applies to defendants' request for certification on the first amendment claim. Because plaintiffs are entitled to develop a factual record in order to prove that the Act and Regulations "restrict speech more than is necessary to protect any substantial governmental interest," Able II, at 6 (citing Brown v. Glines, 444 U.S. 348, 355, 100 S. Ct. 594, 600, 62 L. Ed. 2d 540 (1980)), the question is not ripe for appellate review and will not be certified.
Defendants' motion to certify for interlocutory appeal the court's September 14, 1994 Memorandum and Order is denied.
Dated: Brooklyn, New York
December 2, 1994
Eugene H. Nickerson, U.S.D.J.
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