concurring in part and dissenting in part:
John Hensala received a free medical education at taxpayer expense to the tune of $71,429.53. In return, he promised to serve as a physician in the United States Air Force for four years. Quite simply, Hensala refused to perform his part of the bargain — he reneged on his promise. Because I can see no legal reason why Hen-sala should not be held to his bargain and required to repay the government for his medical education, I dissent from so much of the majority opinion as remands this case for further proceedings.
I concur in Parts II.A and II.B of the majority opinion, affirming the district court’s grant of summary judgment in favor of the Air Force on Hensala’s APA, due process and Fed.R.Civ.P. 56(f) claims, but I respectfully dissent from Part II.C, which remands Hensala’s equal protection claim for further proceedings. I would affirm the district court on all issues because Hensala does not challenge his separation as voluntary under the Don’t Ask, Don’t Tell (“DADT”) policy, which we upheld in Holmes v. California Army Nat’l Guard, 124 F.3d 1126, 1133 (9th Cir.1997),1 and it follows from his voluntary separation that recoupment of professional educational costs under the Deutch memorandum is proper and does not implicate any equal protection concerns.
Hensala entered into a straightforward agreement with the military to complete a period of active duty in exchange for his medical education. His contract provided that “[i]f I fail to complete the period of active duty required by this agreement because of voluntary separation for any reason ... I will reimburse the United States in one lump sum for the total cost of advanced education.” Nonetheless, after completing his medical education at government expense and obtaining two deferrals of the required service, he reported his homosexual orientation to the military in violation of the DADT policy a mere two weeks after he was ordered to report for active duty.
Hensala not only wrote a letter to Colonel Degracias of the Air Force Directorate *960of Medical Service Officer Management, he also called his future commanding officer requesting to bring his same-sex domestic partner to Scott Air Force Base when he reported for duty. Finally, he submitted a letter to his appointed counsel, Major Klein, with a list of contacts who could verify his gay sexual orientation. His counsel, in turn, forwarded the letter to Colonel Buraglio, the Judge Advocate appointed to conduct an inquiry into whether Hensala’s statements warranted discharge and recoupment.
At the time Hensala took these actions, the military had a policy that a member who states that he is a homosexual “shall be separated” unless the member is not a person who engages in or intends to engage in homosexual conduct. 10 U.S.C. § 654(b)(2). Because Hensala declined the opportunity to demonstrate that he did not engage in homosexual conduct and reinforced the presumption that he intended to engage in such conduct by requesting to bring his male romantic partner to Scott AFB, the unrebutted presumption properly carried the day under the DADT policy. As the majority concedes, Hensala does not challenge his discharge under DADT, but challenges only the recoupment order.
The majority errs in conflating what should be separate analyses under the DADT policy and under the Deutch Memo’s recoupment policy into a single analysis. Recoupment under the Deutch Memo comes into play only after a service member has been discharged, ie., has voluntarily rendered himself unable “to complete his or her term of service. ...” The Deutch Memo is equally clear that it does not punish status. “[A] member’s statement that he or she is a homosexual, though grounds for separation under the current policy if it demonstrates a propensity or intent to engage in homosexual acts, does not constitute a basis for recoupment. ...” (Emphasis added.) Because, in Hensala’s case, discharge under DADT was a necessary prerequisite to invoking recoupment under the Deutch Memo, there is no basis in the record for the majority’s speculation that a factual issue exists as to whether “the recoupment policy only targets individuals who identify themselves as gay,” opening up the possibility that “the recoupment policy is treating similarly-situated individuals, those who violate § 925 and are discharged based on § 654(b)(1), differently based on their sexual orientation status alone.” The court-ordered discovery, referred to by the majority, demonstrates that the recoupment policy is administered in an evenhanded, case-by-case fashion without any hint of discrimination based on sexual orientation. The record belies the majority’s assertion that “the record demonstrates that there are genuine issues of material fact as to whether the recoupment policy applies exclusively to service members who are gay.” Significantly, the majority points to nothing in the record to support this assertion. In fact, Hensala adduced no evidence in opposition to the Air Force’s summary judgment motion to support his equal protection claim.
Moreover, even if such a hypothetical possibility existed, this is not the case in which to pursue it. As noted, Hensala was given the opportunity to contest his discharge under DADT — to contest the presumption, but he declined to do so. He does not contest his discharge here. As the majority also concedes, the Judge Advocate’s finding, and the Air Force Board for the Correction of Military Records’ affirmance of the same, that Hensala’s disclosure of his homosexual orientation at the time he was ordered to active duty was made for the purpose of avoiding military service is supported by substantial evidence.
Given the circumstances under which Hensala disclosed his homosexual orienta*961tion to the Air Force, the fact that he does not contest his discharge under DADT, and the Air Force’s finding that Hensala made his sexual orientation statements to various members of the Air Force, including his commanding officer, for the purpose of procuring a separation from service, the district court did not err in affirming the Air Force’s decision ordering recoupment of the cost of Hensa-la’s medical education. Contrary to the majority’s speculation, the Deutch memo is not aimed at status; it is aimed at conduct — the procuring of a voluntary discharge so as to render the recipient of government educational funds unable to fulfill his commitment to perform military service for the required period.
Because the majority does not hold Hen-sala to his part of the bargain without any legal excuse for not doing so, I respectfully dissent from Part II.C of the majority opinion.
. Although the majority invites Hensala to pursue his newly-raised claim under Lawrence v. Texas, -U.S. -, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), on remand, after supplemental briefing on the issue, I conclude that Lawrence does not impliedly overrule Holmes. Holmes was based on the special needs of the military, see 124 F.3d at 1134-36, a subject that Lawrence does not address. Thus, the two cases are not "closely on point,” United States v. Gay, 967 F.2d 322, 327 (9th Cir.1992), and Holmes remains the law of the circuit.