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ABLE v. UNITED STATES

December 2, 1994

LIEUTENANT COLONEL JANE ABLE, PETTY OFFICER ROBERT HEIGL, FIRST LIEUTENANT KENNETH OSBORN, SERGEANT STEVEN SPENCER, LIEUTENANT RICHARD von WOHLD, and SEAMAN WERNER ZEHR, Plaintiffs, against UNITED STATES OF AMERICA, and WILLIAM J. PERRY, SECRETARY OF DEFENSE, in his official capacity, Defendants.

Eugene H. Nickerson, U.S.D.J.


The opinion of the court was delivered by: EUGENE H. NICKERSON

NICKERSON, District Judge:

 Plaintiffs, six members of the United States Armed Services (the Services) who say they are gay and lesbian, brought this action against the United States and the Secretary of Defense for (a) a declaration that Section 571 of the National Defense Authorization Act for the Fiscal Year 1994 (the Act), 10 U.S.C. § 654, concerning the Service's policy as to homosexuals, and Regulations issued under the Act, are invalid under the First and Fifth Amendments, and (b) an order enjoining the defendants from enforcing the Act and the Regulations.

 By two orders, dated April 4 and May 9, 1994, familiarity with which is assumed, this court granted plaintiffs' preliminary injunction motions preventing defendants from enforcing against plaintiffs the Act and Regulations. Able v. U.S., 847 F. Supp. 1038 (E.D.N.Y. 1994) ("Able I"); Able v. U.S., No. 94 CV 0974 (E.D.N.Y. May 9, 1994). The relevant facts are recited in Able I at 1039-41.

 By Memorandum and Order dated September 14, 1994, familiarity with which is assumed, this court granted defendants' motion to dismiss the complaint with respect to plaintiffs' intimate association, vagueness and overbreadth claims, but denied defendants' motion to dismiss the other claims. Able v. U.S., 863 F. Supp. 112 (E.D.N.Y. 1994) ("Able II").

 In particular, the court held that: (1) plaintiffs were not required to exhaust their administrative remedies; (2) plaintiffs' complaint stated an equal protection claim; and (3) plaintiffs' complaint stated a first amendment claim. Able II, at 3-6.

 Defendants now move pursuant to 28 U.S.C. § 1292(b) for certification of an interlocutory appeal from the denial of their motion to dismiss.

 I

 A party seeking leave to appeal a district court's interlocutory order must first obtain certification from that court pursuant to 28 U.S.C. § 1292(b). In order to certify, the district court must find that: (1) the order "involves a controlling question of law"; (2) "as to which there is substantial ground for difference of opinion"; and that (3) "appeal from the order may materially advance the ultimate termination of the litigation. . . . " Id.

 The trial judge has substantial discretion in deciding whether or not to certify, see D'Ippolito v. Cities Service Co., 374 F.2d 643, 649 (2d Cir. 1967); Ferraro v. Secretary of HHS, 780 F. Supp. 978, 979 (E.D.N.Y. 1992).

 The court should construe the requirements for certification strictly, see Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990), and certify only where exceptional circumstances warrant. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 2461, 57 L. Ed. 2d 351 (1978); Klinghoffer, at 24-25; Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364, 366 (S.D.N.Y. 1982).

 II

 In Able II, the court rejected defendants' argument that plaintiffs must exhaust their administrative remedies before bringing an action in federal court. Because there is no "substantial ground for difference of opinion" on its decision, 28 U.S.C. § 1292(b), the court will not certify the exhaustion issue.

 Military discharge cases require "strict application of the exhaustion doctrine." Guitard v. U.S. Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992). But the Court of Appeals for the Second Circuit has held that, even in the military ...


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