TIMOTHY R. McVEIGH,                 ) 
Mililani, Hawaii 96789,             )
                                    )
Plaintiff,                          )
                                    ) 
v.                                  )     CIVIL ACTION NO. ________
                                    )
THE HONORABLE WILLIAM COHEN,        )
Secretary of Defense                )
U.S. Department of Defense          )
Washington, DC 20301,               )
in his capacity as Secretary        )
of Defense, and                     )
                                    )
                                 
                                    
THE HONORABLE JOHN H. DALTON,       )
Secretary of the Navy               )
Department of the Navy              )
Washington, DC 20350                )
                                    )
in his capacity as Secretary        ) 
of the Navy,                        )
                                    )
Defendants.                         )
__________________________________  )

Plaintiff, Timothy R. McVeigh ("Senior Chief McVeigh"), for his Verified Complaint against Defendants, the Honorable William Cohen, Secretary of Defense, and the Honorable John H. Dalton, Secretary of the Navy, states as follows:

1. This case involves the unlawful discharge of Senior Chief McVeigh, a highly decorated Senior Chief Petty Officer, from active duty in the United States Navy after seventeen years of distinguished service, based upon an investigation conducted in violation of the Electronic Communications Privacy Act ("ECPA"), the applicable regulations promulgated by the Department of Defense, and the rights guaranteed to Senior Chief McVeigh by the United States Constitution. Plaintiff's separation pursuant to the illegal discharge has been accelerated by defendants to occur by no later than Friday, January 16, 1998 at 5:00 a.m. EST.

2. In violation of the "Don't Ask, Don't Tell, Don't Pursue" policy under the National Defense Authorization Act of 1994 regarding military service by homosexuals, the United States Navy improperly conducted an investigation of Senior Chief McVeigh based solely on an anonymous electronic mail message the Navy believed to have been sent by Senior Chief McVeigh to a civilian. As discussed in detail below, the Navy unlawfully obtained information from Senior Chief McVeigh's online service provider without a warrant or court order as specifically required by ECPA and used this improperly seized evidence as an integral part of its case against Senior Chief McVeigh. Furthermore, the investigation violated Department of Defense regulations because (1) the investigation was not based upon credible information that Senior Chief McVeigh engaged in homosexual conduct; (2) it was not investigated by the officer charged with the duty of conducting the investigation; and (3) the Navy could not identify any alleged statement within the meaning of the regulations made by Senior Chief McVeigh that he was a homosexual.

3. In addition, (1) Senior Chief McVeigh will be discharged improperly subsequent to an administrative hearing despite the fact that he sustained his burden in demonstrating that he had not engaged in homosexual conduct, (2) evidence was permitted at the hearing in violation of federal law and Senior Chief McVeigh's constitutional rights, and (3) the hearing violated Senior Chief McVeigh's due process rights.

4. Based upon these actions, Senior Chief McVeigh seeks preliminary and permanent injunctive relief barring the Defendants from dismissing Senior Chief McVeigh and otherwise interfering with the uninterrupted continuation of his Naval career and all benefits and privileges related thereto.

5. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1331, 28 U.S.C. § 2201, 5 U.S.C. § 701, and 18 U.S.C. § 2707. Further jurisdiction is found directly under the Fourth and Fifth Amendments to the United States Constitution.

6. Venue is proper under 28 U.S.C. §§ 1391(b)(2) and 1391(e).

7. Plaintiff Timothy R. McVeigh is a thirty-six year old senior chief petty officer in the Navy. (Plaintiff is unrelated to the individual convicted of the Oklahoma City bombings.) Senior Chief McVeigh joined the Navy after high school and served honorably and with distinction for over seventeen years. Senior Chief McVeigh was accepted into the Navy's elite corps of nuclear submariners and rose to become the Chief of the Boat -- the senior enlisted man reporting directly to the Captain -- aboard the USS Chicago, a nuclear-powered attack submarine. He is currently a resident of Mililani, Hawaii.

8. Defendant, the Honorable William Cohen, the Secretary of Defense, is named here in his official capacity. In that capacity, he is ultimately responsible for supervising Senior Chief McVeigh's military service, for promulgating and implementing regulations governing military service in all branches of the United States Armed Services, and for ensuring legality of all military policies and procedures. In this connection, he is also responsible for the promulgation and implementation of regulations that govern the conditions of service by homosexuals and the manner in which matters involving homosexuality are to be investigated in branches of the United States armed services.

9. Defendant John H. Dalton is Secretary of the Navy and is named here in his official capacity. In that capacity, he oversees the United States Navy, a branch of the armed services. In addition, upon information and belief, Defendant Dalton is the "Separation Authority" responsible for the final decision to discharge or retain any Naval personnel on grounds of homosexuality.

A. THE DEPARTMENT OF DEFENSE'S POLICY

10. On November 30, 1993, Congress enacted the National Defense Authorization Act of 1994 ("the Act"). For the first time in the nation's history, the Act codified into federal statutory law a nationwide policy regarding military service by homosexuals. See 10 U.S.C. § 654. Colloquially known as the "Don't Ask, Don't Tell, Don't Pursue" policy, a service member under the Act only may be discharged (1) based on either his or her statement that he or she is a homosexual, (2) or upon evidence that the service member has engaged in homosexual acts, as defined in the statute. See 10 U.S.C.§ 654.

11. Once evidence of a statement is established, a service member whose discharge is based on a statement by him or her that he or she is a homosexual can avoid discharge only if he or she rebuts a statutory presumption. The member must "demonstrate[] that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." DoD Directive 1332.14.

12. The statute defines "homosexual act" to include

(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).

10 U.S.C. § 654(f)(3). The statute does not define the terms "propensity" or "intends" as used in the foregoing quoted provision, nor does it indicate what types of evidence or what level of showing might suffice to rebut the statute's presumption. DoD Directive 1332.14 defines "propensity" as follows:

DoD Directive No. 1332.14.

13. In connection with its issuance of new regulations to implement the new DoD policy, DoD issued a series of "Guidelines for Fact-Finding Inquiries Into Homosexual Conduct" at Enclosure 3, Attachment 4 of DoD Dir. 1332.14 ("the Guidelines"). The Guidelines establish the limited circumstances under which investigations into allegations of homosexual conduct by members of the armed services are to be undertaken and the circumscribed manner in which they are to be conducted.

14. Under the Guidelines, "[o]nly the member's commander is authorized to initiate fact-finding inquiries involving homosexual conduct." DoD Dir 1332.14 (Encl. 3, Att. 4) p. 4-1. This limitation was first enunciated by then-Secretary of Defense Aspin in his July 19, 1993 memorandum to the Secretary of the Navy and others in positions of command in branches of the armed services.

15. The DoD's policy not only limits the personnel who may authorize an investigation, but also strictly limits the commanding officer's discretion to initiate an investigation into homosexual conduct. The Guidelines state that "[a] commander may initiate a fact-finding inquiry only when he or she has received credible information that there is a basis for discharge." Id.

16. According to the Guidelines:

A basis for discharge exists if:

1. The member has engaged in a homosexual act.

2. The member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts; or

3. The member has married or attempted to marry a person of the same sex.

Guidelines at C(2), p. 4-2.

17. The Guidelines define "Credible Information" as follows:

Credible information exists when information, considering its source and the surrounding circumstances, supports a reasonable belief that a Service member has engaged in homosexual conduct. It requires a determination based on articulable facts, not just a belief or suspicion.

Guidelines at C(1), p. 4-2.

18. The Guidelines go on to give instructive examples:

CREDIBLE INFORMATION DOES NOT EXIST, FOR EXAMPLE, WHEN:

1. The individual is suspected of engaging in homosexual conduct, but there is no credible information, as defined, to support that suspicion; or

2. The only information is the opinion of others that a member is homosexual; or

3. The inquiry would be based on rumor, suspicion, or capricious claims concerning a member's sexual orientation; or

4. The only information known is an associational activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes. Such activity, in and of itself, does not provide evidence of homosexual conduct.

Id. at C(3), p. 4-2.

* * *

CREDIBLE INFORMATION EXISTS, FOR EXAMPLE, WHEN:

1. A reliable person states that he or she observed or heard a Service member engaging in homosexual acts, or saying that he or she is a homosexual or bisexual or is married to a member of the same sex; or

2. A reliable person states that he or she heard, observed or discovered a member make a spoken or written statement that a reasonable person would believe was intended to convey the fact that he or she engages in or has a propensity or intent to engage in homosexual acts, or

3. A reliable person states that he or she observed behavior that amounts to a non-verbal statement by a member that he or she is a homosexual or bisexual -- i.e., behavior that a reasonable person would believe intended to convey the statement that the member engages in or has a propensity or intent to engage in homosexual acts.

Id. at C(4), p. 4-2.

19. According to the Guidelines, if it occurs, the fact-finding inquiry is to be conducted by the commanding officer or by a person he or she appoints. Guidelines at A(2), p. 4-1.

20. In his July 19 Memo, Secretary Aspin stated clearly that "[n]either investigations nor inquiries [would] be conducted solely to determine an individual's sexual orientation." July 19 Memo at 2. The Guidelines similarly restrict the subject matter of the investigations:

Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal their sexual orientation. However, upon receipt of credible information of homosexual conduct, commanders or appointed inquiry officials may ask members if they engaged in homosexual conduct . . . .

Guidelines at D(3), 4-3.

21. Moreover, in order to protect members who are the subject of such investigations, the Guidelines require that, prior to questioning a member if they engaged in homosexual conduct, "the member should first be advised of the DoD policy on homosexual conduct." Guidelines at D(3), p. 4-3. The Guidelines also recognize the right of the individual to "choose not to discuss the matter further." Id.

22. As a further check on overbroad investigations, the Guidelines require that inquiries "be limited to the factual circumstances directly relevant to the specific allegations." Guidelines at A(3), p. 4-1. In addition,"[a]t any given point of the inquiry, the commander or appointed inquiry official must be able clearly and specifically to explain which grounds for separation he or she is attempting to verify and how the information being collected relates to those specific separation grounds." Guidelines at D(3), p. 4-3.

B. EVENTS LEADING TO THE NAVY'S INVESTIGATION OF SENIOR CHIEF
MCVEIGH'S ALLEGED "HOMOSEXUAL CONDUCT"

23. On or about September 2, 1997, a civilian Navy employee, Helen Hajne, received an electronic mail message (the "E-Mail") via American Online ("AOL") asking for the ages of the children of the sailors on the USS Chicago, so that the E-Mail sender could assist in the organization of a holiday toy giveaway. See Transcript of Proceedings of Administrative Board, dated November 7, 1997, at 81-82. A true copy of the Transcript is annexed hereto as Exhibit A.

24. Defendants allege that because Ms. Hajne did not recognize the screen name of the sender of the E-Mail, Ms. Hajne utilized an option available to AOL users and looked up a "profile" for the AOL user. Exhibit A at 10.

25. When Ms. Hajne examined the AOL user profile she still could not determine the identify of the E-Mail sender. Instead of the full name of the sender, she learned only the sender's alleged first name, "Tim;" the sender's alleged "marital status," listed as "gay;" the sender's alleged "location," listed as "Hawaii;" and some other information that did not definitively identify the author.

26. Upon information and belief, and for reasons unknown to Senior Chief McVeigh, Ms. Hajne forwarded the E-Mail and the user profile to her husband, a noncommissioned officer aboard the USS Chicago. Exhibit A at 62.

27. Eventually, although the author of the E-Mail had not been identified, the E-Mail and profile were forwarded to Senior Chief McVeigh's commanding officer, Commander John C. Mickey, Exhibit A at 63, and the Navy jumped to the conclusion that Senior Chief McVeigh might have been the author of the E-Mail.

28. As noted above, pursuant to the Guidelines, the investigation into allegations that a member of the armed forces is a homosexual must be performed by that member's commander.

29. Although Senior Chief McVeigh's commanding officer, Commander Mickey, was aware of the E-Mail and the profile, and of the surmise that Senior Chief McVeigh was the author of the E-Mail, Commander Mickey chose not to initiate an investigation. In fact, Commander Mickey testified at the administrative board hearing that "[he] didn't see any point in investigating" when he received the E-Mail and profile. Exhibit A at 64.

30. Instead, Commander Mickey asked the Deputy Commander for Commander, Submarine Squadron Three, Christopher R. Earl and the Staff Judge Advocate for preliminary guidance as to whether the E-Mail and profile constituted a statement that the author of the E-Mail was a homosexual. Exhibit A at 64.

31. However, prior to initiating any fact-finding inquiry or investigation, Commander Earl unilaterally relieved Commander Mickey of his duty to investigate the matter. Exhibit A at 65.

32. In violation of the Guidelines, Commander Earl himself then initiated the investigation as to (1) whether Senior Chief McVeigh was the author of the E-Mail; (2) whether the E-Mail and profile constituted a statement pursuant to the Guidelines; and (3) whether there was credible evidence that Senior Chief McVeigh had committed or had the propensity to or intent to engage in homosexual acts.

33. On or about September 11, 1997, Commander Earl called Lieutenant Karin Morean, JAGC, into his office, gave her the E-Mail and profile, and requested that she perform further investigation to determine the identity of the E-Mail author. Exhibit A at 9.

34. In order to determine the author of the E-Mail, Lt. Morean requested naval investigator Joseph Kaiser to contact AOL to determine whether the E-Mail author was Senior Chief McVeigh. Exhibit A at 10. Lt. Morean did not obtain a warrant or court order authorizing her to obtain this information as required by ECPA.

35. Kaiser stated that, on or about September 12, 1997, he spoke with a person identifying himself as Owen, from AOL "Tech Services." Exhibit A at 11.

36. Kaiser alleged that he told Owen that he was "the third party in receipt of a fax and wanted to confirm the profile sheet, who it belonged to." In other words, Kaiser requested the identity of the individual described in the AOL profile.

37. Although AOL representatives are prohibited under ECPA from giving information to the government without a warrant, a court order, an administrative subpoena, or express permission from the AOL subscriber, Kaiser alleges that Owen informed him that the subscriber in question was "Timothy R. McVeigh." Exhibit A at 11.

38. On that same day, Senior Chief McVeigh returned to shore from naval exercises. Immediately upon return, Senior Chief McVeigh was summoned by Lt. Morean to her office to speak with her. When Senior Chief McVeigh arrived in Lt. Morean's office, Lt. Morean accused him of committing sodomy and indecent acts. At that time, Lt. Morean advised him of his rights, including his right to remain silent and right to counsel, and handed him the AOL user profile without the E-Mail. Exhibit A at 83-84. Lt. Morean failed to advise Senior Chief McVeigh of the "Don't Ask, Don't Tell, Don't Pursue" policy as required by the Guidelines. Guidelines at D(3), p. 4-3.

39. Lt. Morean further informed Senior Chief McVeigh that she already had verified that the profile was for an AOL user account that belonged to Senior Chief McVeigh.

40. On or about September 22, 1997, Senior Chief McVeigh was formally informed by "Administrative Board Procedure Letter" that he was being considered for an "administrative separation" from the naval service by reason of "homosexual conduct, as evidenced by [his] statement that [he is] a homosexual." The letter adds that this "statement" created a rebuttable presumption that he engaged in, attempted to engage in, had a propensity to engage in, or intended to engage in homosexual acts. Annexed hereto as Exhibit B is a true copy of the Administrative Board Procedure Letter.

41. On or about November 7, 1997, Senior Chief McVeigh came before the administrative discharge board. See Exhibit A.

42. Throughout the hearing, Senior Chief McVeigh presented significant evidence showing that the Navy did not possess the necessary evidence to initiate an investigation into the possibility that he had engaged in homosexual conduct. Exhibit A.

43. In addition, during the hearing, McVeigh showed that the investigation should not have been convened because the E-Mail and profile were improperly obtained, and, in any event, did not constitute a statement -- as defined by the Guidelines -- that Senior Chief McVeigh was a homosexual. Exhibit A at 11, 82-83, 94-95.

44. Furthermore, McVeigh showed that the administrative hearing should not have convened because the fact-finding investigation was initiated by Commander Earl instead of Senior Chief McVeigh's commanding officer, Commander Mickey. Exhibit A at 63-65.

45. In addition, the hearing should not have been permitted to proceed over the objections raised by Senior Chief McVeigh, based upon evidence of bias of two of the three administrative board members, who were overtly sympathetic to Lt. Morean, the government's main witness. This evidence included a board member's apparent attempts to abet Lt. Morean in her evasion of direct questions put to her by counsel for Senior Chief McVeigh regarding the very heart of the issues in the proceeding: the improper procedures that Lt. Morean followed in investigating this matter in violation of ECPA and the Guidelines. Exhibit A at 30-33.

46. Moreover, even if the Navy had shown that Senior Chief McVeigh made a statement of homosexuality, which he did not, the transcript of the proceedings demonstrate that Senior Chief McVeigh easily met his burden of showing that he did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. Exhibit A at 78-85. In fact, Senior Chief McVeigh presented unrebutted evidence of his heterosexual relationships.

47. At the conclusion of the hearing, the administrative board ruled that the government had shown by a preponderance of the evidence that Senior Chief McVeigh had committed "homosexual conduct." Exhibit A at 100-01.

48. Subsequent to the hearing, on or about December 9, 1997, counsel for Senior Chief McVeigh submitted a letter of deficiencies in the administrative discharge process. This letter outlined the reasons that the administrative board had erred. A true copy of the letter of deficiencies is annexed hereto as Exhibit C.

49. Although McVeigh's counsel was informed that he would have ten days from the time he received the transcript to complete his letter of deficiency, this time period was subsequently reduced to five days. In addition, McVeigh's counsel was greatly restricted in his preparation of the letter due to having been provided with an incomplete and inaccurate transcript of the proceedings and not having access to the audio recordings of the transcript until the fourth day of the five day period.

50. Moreover, Senior Chief McVeigh's discharge has been accelerated to occur at 5:00 a.m. (E.S.T.) Friday, January 16.

51. Plaintiff hereby incorporates and realleges paragraphs 1 through 50 as if fully set forth herein.

52. AOL is a "provider of electronic communication service or remote computing service" as those terms are used in 18 U.S.C. § 2703(c)(1)(B).

53. The information that Defendants solicited and obtained from AOL concerning Senior Chief McVeigh constitutes "a record or other information pertaining to a subscriber to or customer of" AOL as those terms are used in 18 U.S.C. § 2703(c)(1)(B).

54. Senior Chief McVeigh was a "subscriber to or customer" of AOL at the time Defendants solicited and obtained information about him from AOL. Senior Chief McVeigh did not grant his consent to these actions by Defendants.

55. In violation of 18 U.S.C. §§ 2703(c)(1)(B) and 2707, Defendants solicited and obtained information concerning Senior Chief McVeigh from AOL without first (i) obtaining a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant; (ii) obtaining a court order for such disclosure; or (iii) obtaining the consent of Senior Chief McVeigh to such disclosure.

56. Defendants violated 18 U.S.C. §§ 2703(c)(1)(B) and 2707 with full knowledge of the wrongdoing they were committing, or with reckless indifference to its lawfulness or unlawfulness. Defendants did not act in good-faith reliance on any of the factors specified in 18 U.S.C. § 2707(e).

COUNT TWO

VIOLATION OF THE FOURTH AMENDMENT

57. Plaintiff hereby incorporates and realleges paragraphs 1 through 56 as if fully set forth herein.

58. Defendants solicited and obtained Senior Chief McVeigh's records at AOL through one or more of the following: knowing violations of the standards set forth in 18 U.S.C. §§ 2703(c)(1)(B), reckless or negligent violations of the standards set forth in 18 U.S.C. §§ 2703(c)(1)(B), deceit, intentional misrepresentations, negligent misrepresentations, or material omissions.

59. Defendants' solicitation and obtaining of Senior Chief McVeigh's records at AOL constitute a search and/or seizure covered by the Fourth Amendment to the United States Constitution. Defendants did not have a warrant or other legitimate authorization for this search and/or seizure.

60. Plaintiff had a legitimate expectation that records or information concerning him that were in the custody of AOL would remain private and would not be distributed to anyone without his express consent, or such other manner as expressly authorized by law.

61. Defendants' search and/or seizure of Plaintiff's records at AOL was unreasonable and in violation of the Fourth Amendment to the United States Constitution..

COUNT THREE

VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT

62. Plaintiff hereby incorporates and realleges paragraphs 1 through 61 as if fully set forth herein.

63. Defendants have acted in a manner that is arbitrary and capricious, without reasoned explanation, not in accordance with law, an abuse of discretion, and contrary to facts known to them, all in violation of the Administrative Procedure Act, 5 U.S.C. § 706. These violations are evidenced, in part, by the violation of 10 U.S.C. § 654 and related regulations promulgated by the Navy and by the Department of Defense, including but not limited to DoD Directive No. 1332.14, and by the failure by defendants and their representatives to oversee and enforce such regulations.

64. In particular, Defendants' violations of the statute include, but are not limited to, the following:

A. An investigation of Senior Chief McVeigh's alleged homosexuality was initiated without the required authorization of his commanding officer, CDR John Mickey.

B. The investigation of McVeigh was initiated without the requisite "credible information" concerning homosexual conduct. Guidelines, at 4-1. In this case, the investigation was commenced based solely on an E-mail having nothing to do with homosexuality and the profile of a "screen-name" used to communicate through American Online that officials suspected to have been created by McVeigh. Under the Guidelines, mere suspicions do not constitute "credible information;" nor do associations with gay activity, such as attendance at a gay bar or the reading of homosexual publications. Id. at 4-3 - 4-4.

C. The e-mail and profile on which the Navy based its investigation were not "statements" sufficient to constitute "credible information" of homosexual activity, or a propensity or intent to engage in homosexual activity, as required to initiate an investigation. Guidelines, at 4-2.

D. Lt. Morean, one of the officers responsible for investigating Senior Chief McVeigh, informed him that he was being investigated for "sodomy and indecent acts," neither of which can be supported by the allegation originally made against Senior Chief McVeigh nor by any evidence on the record. This type of "fishing expedition" is prohibited by the Guidelines. Id., at 4-1, 4-3.

E. The Navy used every means at its disposal, including guile and unlawful violations of ECPA, to vigorously pursue its suspicions of homosexual activity. This improper intrusion into the sphere of personal privacy violated the policies underlying the "Don't Ask, Don't Tell, Don't Pursue" rule.

F. The procedures employed in connection with the hearing and adjudication of accusations against Plaintiff were flawed in many ways, including but not limited to: a biased administrative board that could not and did not fairly adjudicate the charges against Plaintiff; inadequate time provided for the preparation of a deficiency letter; and the provision of an inaccurate transcript of the hearing.

COUNT FOUR

DENIAL OF DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT

65. Plaintiff hereby incorporates and realleges paragraphs 1 through 64 as fully set forth herein.

66. Plaintiff has a property interest in his continued service in the Navy, and in his expectation of due process protections while serving in the Navy, under, inter alia, 10 U.S.C. § 1169, 10 U.S.C. § 654, and DoD Directive 1332.14 and accompanying Regulations and Guidelines.

67. Defendants failed to accord to Senior Chief McVeigh due process of law prior to discharging him from the United States Navy, in violation of the Fifth Amendment to the United States Constitution. This failure is evidenced, in part, by the violation of 10 U.S.C. § 654 and related regulations promulgated by the Navy and by the Department of Defense, including but not limited to DoD Directive 1332.14, and by the failure by defendants and their representatives to oversee and enforce such regulations.

68. In particular, defendants' failure includes, but is not limited to, the following:

A. An investigation of Senior Chief McVeigh's alleged homosexuality was initiated without the required authorization of his commanding officer, CDR John Mickey.

B. The investigation of McVeigh was initiated without the requisite "credible information" concerning homosexual conduct. Guidelines, at 4-1. In this case, the investigation was commenced based solely on an e-mail having nothing to do with homosexuality and the profile of a "screen-name" used to communicate through American Online that officials suspected to have been created by McVeigh. Under the Guidelines, mere suspicions do not constitute "credible information;" nor do associations with gay activity, such as attendance at a gay bar or the reading of homosexual publications. Id. at 4-3 - 4-4.

C. The e-mail and profile on which the Navy based its investigation were not "statements" sufficient to constitute "credible information" of homosexual activity, or a propensity or intent to engage in homosexual activity, as required to initiate an investigation. Guidelines, at 4-2.

D. Lt. Morean, one of the officers responsible for investigating Senior Chief McVeigh, informed him that he was being investigated for "sodomy and indecent acts," neither of which can be supported by the allegation originally made against Senior Chief McVeigh nor by any evidence on the record. This type of "fishing expedition" is prohibited by the Guidelines. Id. at 4-1, 4-3.

E. The Navy used every means at its disposal, including guile and unlawful violations of ECPA, to vigorously pursue its suspicions of homosexual activity. This improper intrusion into the sphere of personal privacy violated the policies underlying the "Don't Ask, Don't Tell, Don't Pursue" rule.

F. The procedures employed in connection with the hearing and adjudication of accusations against Plaintiff were flawed in many ways, including but not limited to: a biased administrative board that could not and did not fairly adjudicate the charges against Plaintiff; inadequate time provided for the preparation of a deficiency letter; and the provision of an inaccurate transcript of the hearing.

WHEREFORE, in respect of these claims, Senior Chief McVeigh hereby prays for a judgment in his favor and relief that the Court:

1. Declare the order discharging Senior Chief McVeigh null and void and order Defendants to retain and reinstate him as a Senior Chief Petty Officer on active duty in the United States Navy, with all of the rights, benefits and incidents thereof, as if his discharge had never been ordered;

2. Temporarily, preliminarily, and permanently enjoin Defendants from discharging Senior Chief McVeigh from active duty in the United States Navy, or from taking any other action adverse to him, by reason of his supposed status as a homosexual or any statements attributed to him concerning homosexuality;

3. Award Senior Chief McVeigh actual and compensatory damages in an amount to be determined at trial;
4. Award reasonable attorneys' fees and allowable costs of court;

5. Award punitive damages; and

6. Provide any and all other relief that the Court deems just and proper.
Respectfully submitted,

By:
Christopher Wolf (D.C. Bar No. 335885)
Alec W. Farr (D.C. Bar No. 440046)
Amybeth García-Bokor (D.C. Bar No. 453279)
Jeffrey M. Lubell*
Eric Wechselblatt*
PROSKAUER ROSE LLP
1233 Twentieth Street, N.W.
Suite 800
Washington, D.C. 20036
(202) 416-6800
[* Not Admitted in D.D.C.]

Dated: January 15, 1998

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