Gay Sailor’s Reinstatement Draws Appeal : Military: Justice Dept. argues that Los Angeles judge who issued order didn’t give Navy a proper hearing. Brief filed in little-known federal court.

The Justice Department filed an appeal Friday of a federal court order temporarily reinstating a homosexual Navy sailor at Moffett Field, south of San Francisco.

The department, filing its brief on behalf of the military, was sharply critical of U.S. District Judge Terry Hatter, arguing that the Los Angeles jurist had failed to give Navy officials a proper hearing and had committed other “clear, reversible errors.”

Justice attorneys said Hatter’s “unprecedented intrusion into military matters threatens military effectiveness” and asked a federal appeals court here to reverse the ruling in the case of Petty Officer Keith Meinhold.

On Nov. 6, Hatter ordered Meinhold reinstated with back pay pending the outcome of the sailor’s federal lawsuit challenging the government policy barring homosexuals from military service.

It said the preliminary injunction Hatter issued should not be allowed to stand because “Meinhold has not shown that he will suffer irreparable harm” by being excluded from military service while his lawsuit is pending, “and he has not exhausted” his avenue of appeals within the military.

The department said it was withdrawing an earlier appeal filed with the U.S. 9th Circuit Court of Appeals in San Francisco, which traditionally has shown a liberal bent. Instead, the appeals brief Friday was filed with the Court of Appeals for the Federal Circuit, a little-known court that mainly handles cases involving claims against the government.

Department officials said this court derives jurisdiction because Meinhold’s back pay is at issue.

After Hatter’s initial order, the Navy refused to accept Meinhold when he reported for duty the next day as a sonar instructor. A 12-year veteran, he was discharged in August, several months after publicly disclosing his homosexuality in a television interview.

Meinhold was turned away Nov. 7 with a letter stating that local commanders had no authorization to put him back in uniform, in spite of the court order.

Hatter subsequently threatened the Navy with contempt of court if it continued to bar Meinhold from active duty, and the Navy reversed its position, agreeing to comply with the order. Meinhold reclaimed his job a week ago.

The Justice Department said in its petition that Hatter resorted to “an extraordinary exercise of judicial power” by requiring the Navy “to reinstate a service member who, under explicit regulations, is not eligible for military service and whose presence in the military environment . . . seriously impairs the accomplishment of the military mission.”

It added: “Remarkably, the district court (Hatter) issued the preliminary injunction without providing the Navy with a hearing, without considering the Navy’s arguments in opposition (and) without first requiring plaintiff to seek relief from the Board of Correction of Naval Records.”

Earlier this week, Hatter heard government arguments that he should reverse his reinstatement of Meinhold, but he held off any ruling on the motion.