Log Cabin Republicans v. United States of America et al

Filing 136

NOTICE OF MOTION AND MOTION for Summary Judgment as to Plaintiff's First Amended Complaint filed by Defendants Donald H Rumsfeld, United States of America. Motion set for hearing on 4/26/2010 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: #1 Memorandum, #2 Statement of Uncontroverted Fact and Conclusions of Law, #3 Appendix, #4 Proposed Order)(Freeborne, Paul)

Log Cabin Republicans v. United States of America et al

Doc. 136 Att. 2

1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW [PROPOSED] HEARING DATE: April 26, 2010 TIME: 2:00 p.m. BEFORE: Judge Phillips

14 LOG CABIN REPUBLICANS,

17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 Defendants.

Defendants' Motion for Summary Judgment having come on for hearing,

24 and the Court having considered the pleadings, evidence presented, and 25 memorandum of points and authorities, the Court makes the following Findings of 26 Fact and Conclusions of Law: 27 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Dockets.Justia.com

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I. PROPOSED FINDINGS OF FACT REGARDING PLAINTIFF'S ASSOCIATIONAL STANDING Plaintiff, Log Cabin Republicans (LCR), filed a complaint on October

5 12, 2004 (Doc. 1), challenging the constitutionality of the "Don't Ask, Don't Tell" 6 (DADT) policy. 7 2. Defendants United States and the Secretary of Defense moved to 8 dismiss, arguing, among other things, Plaintiff failed to establish associational 9 standing by identifying by name a current member who had been harmed by the 10 policy (Doc. 9 &12). 11 3. In ruling on Defendants' motion to dismiss for lack of standing, the 12 Court held that LCR had not identified any member of its organization who had 13 been personally harmed by the DADT policy (Doc. 24). 14 4. The Court, therefore, granted the motion to dismiss without prejudice 15 and "ordered" LCR "to identify, by name, at least one of its members injured by 16 the subject policy" (Doc. 24 at 17). Such named member would have to "submit a 17 declaration establishing that he or she: (1) is an active member of the organization; 18 (2) has served or currently serves in the Armed Forces; and (3) has been injured by 19 the policy" (Doc. 24 at 17). 20 5. In purported compliance with the Court's Order, LCR filed an 21 amended complaint and a declaration from John Alexander Nicholson on April 28, 22 2006 (Docs. 25, 26). 23 6 The First Amended Complaint alleged that Mr. Nicholson was a 24 member of LCR and that he had been discharged pursuant to the DADT policy 25 (Doc. 25 ¶¶ 13-14). 26 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

7.

Mr. Nicholson's April 2006 declaration stated in part, "I am a member

27 of the Log Cabin Republicans" (Doc. 26 ¶ 2).
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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8.

The organization's bylaws, at both the national and the local level,

2 require payment of dues to retain membership, and one becomes a member by 3 paying dues to the national organization or to a local chapter (Hamilton Dep. 23:24 12; 29:19-30:16, Mar. 13, 2010, Ex. 1).1 5 9. As of his deposition in March 2010, Mr. Nicholson had never paid 6 dues to LCR; he merely "signed up to be a part of [the organization's] database" 7 (Nicholson Dep. at 9:14-10:7, Mar. 15, 2010, Ex. 2). 8 10. Mr. Nicholson "signed up to be a part of [the organization's] 9 database" in April 2006 (Nicholson Dep. at 9: 17-18, Mar. 15, 2010, Ex. 2) ­ the 10 same month he signed the declaration in this case (Doc. 26). 11 11. The First Amended Complaint also alleged that another purported 12 member of LCR, John Doe (anonymous), was then enlisted in the Armed Forces 13 (Doc. 25 ¶ 20). 14 12. John Doe remains a member of the military, and thus has not been 15 discharged ­ whether because of a statement or for any other reason (Hamilton 16 Dep. 8:16-21, 33:17-35:20, Ex. 1). And there is no other record evidence to 17 demonstrate that the DADT policy has ever been applied to John Doe, or that any 18 statement he has made has been used by the military for any purpose, let alone for 19 any purpose in connection with its application of the DADT policy. 20 21 22 II. CONCLUSIONS OF LAW REGARDING PLAINTIFF'S STANDING The power of federal courts extends only to Cases and Controversies, see

23 U.S. Const. art. III, § 2, and a litigant's standing to sue is "`an essential and 24 unchanging part of the case-or-controversy requirement.'" See Lujan v. Defenders 25 of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992) (citation 26 27 28
The transcript of the deposition of Terry Hamilton and of all other depositions cited herein have previously been lodged with the Court (Doc. 129).
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 omitted). "Standing is determined as of the commencement of litigation." 2 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2002). "The 3 party seeking to invoke the jurisdiction of the court has the burden of alleging 4 specific facts sufficient to satisfy" the requirements of standing. Schmier v. U.S. 5 Court of Appeals, 279 F.3d 817, 821 (9th Cir. 2002). 6 An organization may have standing to bring suit on behalf of its members, 7 but must demonstrate, among other requirements, that those members "would 8 otherwise have standing to sue in their own right." See Hunt v. Washington State 9 Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L.Ed.2d 383 10 (1977). The persons whose interests an organization seeks to pursue must actually 11 be members of the organization. Cf. Washington Legal Found. v. Leavitt, 477 12 F. Supp. 2d 202, 208 (D.D.C. 2007) (listing the "indicia of membership" in an 13 organization without formal members as "(i) electing the entity's leadership, 14 (ii) serving in the entity, and (iii) financing the entity's activities") (citing Hunt, 15 432 U.S. at 344-45). In addition, an organization's claim to associational standing 16 is "weakened" if the members on which it relies were "manufactured . . . after the 17 fact" for purposes of the litigation. Washington Legal Found, id. at 211. 18 It is, of course, an irreducible requirement that a plaintiff have a personal 19 interest in a case sufficient to confer standing from the commencement of litigation 20 and throughout its existence. See Friends of the Earth v. Laidlaw Envir. Servs., 21 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). This is especially so 22 in cases based on associational standing. See Biodiversity, 309 F.3d at 1171. The 23 Court thus ordered LCR to submit a declaration from someone demonstrating, 24 among other things, that "he or she: (1) is an active member of the organization" 25 (Doc. 24 at 17). Despite that opportunity, discovery now demonstrates that that 26 Mr. Nicholson was not "an active member" of LCR when this action was 27 commenced in 2004 or upon amendment. Indeed, Mr. Nicholson has never been a 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 bona fide or "active member" of LCR and thus was not "an active member" even 2 when it submitted Mr. Nicholson's declaration to the Court; at that point, and only 3 at that very point, had Mr. Nicholson merely "sign[ed] up to be a part of [LCR's] 4 database" (Nicholson Dep. at 9:21-10:4, Ex. 2). 5 Even if Mr. Nicholson had been "signed up" at the time this action was 6 commenced, or even if he was "signed up" when the Court directed LCR to submit 7 a declaration from "an active member," Mr. Nicholson was not, nor has he ever 8 been, a bona fide or active member of LCR sufficient to permit the organization to 9 qualify for associational standing. At his deposition in 2010, Mr. Nicholson 10 conceded that he did not pay dues as required by the organization's own bylaws 11 (Nicholson Dep. at 9:14-10:7, Ex. 2; Hamilton Dep. at 29:19-30:16, Ex. 1). 12 Cf. Washington Legal Found., 477 F. Supp. 2d at 208 (listing "financing the 13 entity's activities" as one "indicia of membership"). Merely entering Mr. Nichol14 son's name into LCR's "database" did not make him a member under the bylaws 15 (Nicholson Dep. 9:14-10:7, Ex. 2). Indeed, LCR's claim to associational standing 16 is dramatically "weakened" to the extent it was "manufactured . . . after the fact" 17 for purposes of the litigation. Washington Legal Found, id. at 211. But under no 18 circumstances can LCR demonstrate, based on the record, that through Mr. 19 Nicholson it has met the "irreducible requirement" that it demonstrate standing 20 from the commencement of the litigation and throughout its existence. Friends of 21 the Earth, 528 U.S. at 189. 22 LCR cannot establish standing based upon the anonymous John Doe. While 23 the First Amended Complaint also alleged that another member, John Doe 24 (anonymous), was then enlisted in the Armed Forces (Doc. 25 ¶ 20), LCR has 25 wholly failed to show that John Doe has paid dues or has been aggrieved by the 26 statute it challenges. John Doe is a member of the military and has never been 27 discharged, let alone by application of the DADT policy. There is no evidence to 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 demonstrate that the DADT policy has ever been applied to John Doe, or that any 2 statement he has made has been used by the military for any purpose, let alone for 3 any purpose in connection with its application of the DADT policy. 4 Doe's asserted harm is based solely upon some future, possible, conjectural, 5 or hypothetical application of the policy to him. But an injury must be "both 6 `concrete' and `actual or imminent, not conjectural or hypothetical'" to confer 7 standing. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 8 771, 529 U.S. 765, 120 S. Ct. 1858 (2000) (quoting Whitmore v. Arkansas, 495 9 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990)). An allegation of injury 10 that is "remote, contingent and speculative," and that consists of "nothing more 11 than the bare possibility of some injury in the future," fails to present a justiciable 12 question. Gange Lumber Co. v. Rowley, 326 U.S. 295, 305, 66 S. Ct. 125, 90 L. 13 Ed. 85 (1945). 14 This is especially so here where the relief sought is declaratory and 15 injunctive relief. Where such relief is sought, a plaintiff must first show that "the 16 injury or threat of injury" resulting from official conduct is both "`real and 17 immediate,' not `conjectural' or `hypothetical.'" City of Los Angeles v. Lyons, 461 18 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983); see Nat'l Treasury 19 Employees Union v. Dep't of the Treasury, 25 F.3d 237 (5th Cir. 1994) (rejecting 20 assertion of organizational standing where allegation of any injury to members is 21 "only hypothetical and conjectural"); see also Hodgers-Durgin v. de la Viña, 199 22 F.3d 1037, 1039 (9th Cir. 1999) (finding lack of standing due to "insufficient 23 likelihood of future injury").2 It is LCR's burden to establish standing, and it has 24 failed to do so here through its presentation of speculative allegations about an 25 26 27 28
John Doe's alleged "fear of investigation . . . and other negative repercussions resulting from enforcement of the [DADT] Policy" (Doc. 39) is both too subjective and too speculative to be the basis for standing. Cf. Lyons, 461 U.S. at 102 (mere threat of prosecution is insufficient to establish harm necessary for standing).
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 anonymous "member."3 Because this Court lacks subject-matter jurisdiction, 2 Defendants are entitled to judgment as a matter of law and there is no need to reach 3 the merits. 4 5 6 7 III. CONCLUSIONS OF LAW REGARDING PLAINTIFF'S FACIAL SUBSTANTIVE DUE PROCESS CLAIM Even if the Court were to reach the merits, however, to survive summary

8 judgment with respect to its substantive due process claim, LCR has not carried its 9 burden in a facial challenge of negating each and every constitutional application 10 of the statute. Ninth Circuit precedent forecloses it from doing so. In Philips v. 11 Perry, the Ninth Circuit already has observed that Congress could have rationally 12 found the DADT policy to be necessary to "further military effectiveness by 13 maintaining unit cohesion, accommodating personal privacy and reducing sexual 14 tension." Id. at 1429. The Ninth Circuit in Philips continued by acknowledging 15 that "we cannot say that the Navy's concerns are based on `mere negative attitudes, 16 or fear, unsubstantiated by factors which are properly cognizable' by the military. 17 Nor can we say that avoiding sexual tensions lacks any `footing in the realities' of 18 the Naval environment in which Philips served." Id. (quoting Cleburne v. 19 Cleburne Living Ctr., 473 U.S. 432, 448, 105 S. Ct. 3249, 87 L.Ed.2d 313 (1985)). 20 In light of that finding, LCR now has the burden of showing that these legitimate 21 applications of the policy, as already found by the Ninth Circuit, are invalid. 22 23 24 25 26 27 28
The membership deficiencies identified through discovery regarding Mr. Nicholson, moreover, causes the Court to be skeptical of LCR's invitation to rely on its assertions about an anonymous John Doe as the basis to adjudicate a constitutional challenge to a statute that the Ninth Circuit already has determined to have been supported by a rational basis. See Philips v. Perry, 106 F.3d 1420, 1429 (9th Cir. 1997); see Young America's Found. v. Gates, 560 F. Supp. 2d 39, 49-50 (D.D.C. 2008) (expressing doubt regarding assertion of associational standing based on alleged harm to anonymous members, because, in light of anonymity, "[t]here [was] no way to tell" whether alleged members were still in a position to benefit from the relief requested).
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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LCR has failed to make the showing required of it upon summary judgment. "A facial challenge to a legislative Act is the most difficult challenge to mount

3 successfully, since the challenger must establish that no set of circumstances exists 4 under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 5 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).4 In reviewing such a challenge, courts 6 must be "careful not to go beyond the statute's facial requirements and speculate 7 about `hypothetical' or `imaginary' cases," and should act with caution because 8 "facial challenges threaten to short circuit the democratic process." Washington 9 State Grange v. Washington State Republican Party, 552 U.S. 442, 449-50, 10 128 S. Ct. 1184, 1190, 170 L. Ed. 2d 151 (2008). 11 Plaintiff's burden is particularly high here, because the Court has ruled 12 already that LCR may not "rely upon [the] heightened scrutiny standard [adopted 13 in Witt] as the Ninth Circuit limited this standard to as-applied challenges," and 14 that this challenge is thus governed instead by the most deferential form of review 15 available ­ the rational basis test (Doc. 83 at 17). Under that standard, the only 16 question presented is whether Congress "rationally could have believed" that the 17 conditions of the statute would promote its objective. Western & Southern Life 18 Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72, 101 S. Ct. 2070, 68 L. 19 Ed. 2d 514 (1981) (emphasis in original). 20 The Supreme Court has held that the rational basis test "is not subject to 21 courtroom fact-finding," and rational basis review "is not a license for courts to 22 judge the wisdom, fairness, or logic of legislative choices." Fed. Commuc'ns 23 Comm'n v. Beach Commc'ns, 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 24 211 (1993). The Government, therefore, has "no obligation to produce evidence to 25 26 27 28
The Ninth Circuit has made clear that "[o]ur court adheres to [the Salerno] standard, notwithstanding the plurality opinion in the City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999)." United States v. Inzunza, 580 F.3d 896, 904 n.4 (9th Cir. 2009).
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 sustain the rationality of a statutory classification." Heller v. Doe, 509 U.S. 312, 2 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). Rather, "those challenging the 3 legislative judgment must convince the court that the legislative facts on which the 4 classification is apparently based could not reasonably be conceived to be true by 5 the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S. Ct. 6 939, 59 L. Ed. 171 (1979). "Only by faithful adherence to this guiding principle of 7 judicial review," the Supreme Court has cautioned, "is it possible to preserve to the 8 legislative branch its rightful independence and its ability to function." 9 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365, 93 S. Ct 1001, 35 L. 10 Ed. 2d 351 (1973). 11 In Philips, 106 F.3d at 1429, the Ninth Circuit already has determined that 12 "circumstances exist[] under which the [DADT policy] would be valid." Salerno, 13 481 U.S. at 745. Indeed, the Ninth Circuit has found that the DADT policy is valid 14 under any of the following circumstances ­ to preserve unit cohesion, to accommo15 date personal privacy, and to reduce sexual tension so as to enhance military 16 preparedness and effectiveness. Philips, 106 F.3d at 1429. LCR, moreover, has 17 failed to carry its burden of showing that Congress could not have relied upon 18 these consideration when in enacted the statute, as it is required to do under 19 rational basis review. Defendants are accordingly entitled to summary judgment 20 with respect to LCR's facial substantive due process challenge. 21 22 23 24 IV. PROPOSED FINDINGS OF FACT REGARDING PLAINTIFF'S FIRST AMENDMENT CHALLENGE The Court already has recognized that DADT policy is consistent with the

25 First Amendment to the extent it permits the military to use statements as 26 admissions of a propensity to engage in homosexual acts. The Court nonetheless 27 ruled in its June 9, 2009 Order that "[d]ischarge on the basis of statements not used 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 as admissions of a propensity to engage in `homosexual acts' would appear to be 2 discharge on the basis of speech rather than conduct, an impermissible basis." 3 (Doc. 83 at 23). The Court suggested in that regard that LCR could pursue this 4 claim only by showing that the military discharges service members based upon the 5 use of a statement for a purpose other than as an admission of a propensity to 6 engage in homosexual acts, but concluded that it could not "determine from the face 7 of" LCR's complaint "whether Nicholson was, or Doe could yet" be discharged on 8 a such a basis. Id. Discovery has now confirmed that: 9 1. Mr. Nicholson was discharged because his statement that he was gay 10 constituted an admission of his propensity to engage in homosexual acts, a 11 presumption that he chose not to rebut: Mr. Nicholson gave his commander a letter 12 stating that "[a]fter considerable thought, [he had] come to the decision to make the 13 very difficult disclosure that [he was] gay" (Nicholson Dep. 43:17-44:6, 58:2114 59:12, Ex. 2 & Ex. 6). Mr. Nicholson stated in the letter, moreover, that he knew 15 this disclosure would "require[ ] [his] involuntary discharge," but that he "chose to 16 simply tell the truth and come out" (Nicholson Dep. 51:1-9, Ex. 2 & Ex. 6). 17 Further, Mr. Nicholson's attorney stated in his own letter to the commander that Mr. 18 Nicholson had asked the attorney "to assist [him] in disclosing his sexual 19 orientation to the Army" (Nicholson Dep. 59:18-60:3, Ex. 2 & Ex. 7). The 20 attorney's letter also stated that Mr. Nicholson was aware that this disclosure 21 "create[d] a rebuttable presumption that he [had] the propensity to engage in 22 `homosexual conduct,'" but that Mr. Nicholson "elect[ed] not to rebut this 23 presumption" (Nicholson Dep. 62:2-63:3, Ex. 2 & Ex. 7). Mr. Nicholson was thus 24 discharged from the Army as a result of his admission of a likelihood of engaging in 25 homosexual acts, which he chose not to rebut (Nicholson Dep. 63:4-11, 75:21-76:4, 26 Ex. 2). 27 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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2.

As for the anonymous John Doe on whom LCR also seeks to rely, he

2 remains a member of the military, and thus has not been discharged ­ whether 3 because of a statement or for any other reason (Hamilton Dep. 8:16-21, 33:174 35:20, Ex. 1). No statement has thus been used as the basis to discharge John Doe 5 under the challenged statute or otherwise. 6 7 8 9 V. CONCLUSIONS OF LAW REGARDING PLAINTIFF'S FIRST AMENDMENT CHALLENGE The undisputed facts put forth by LCR establish that service members who

10 state that they are homosexual are discharged under the policy solely because such 11 statements establish the service members' propensity to engage in homosexual acts, 12 which the Court already has recognized in its June 9, 2010 fully comports with the 13 requirements of the First Amendment. And given that LCR has presented no 14 member to whom the policy has been applied based upon a statement of 15 homosexuality, where that statement was used for a purpose other than as an 16 admission of a propensity to engage in homosexual acts, LCR also lacks 17 associational standing to pursue its remaining First Amendment claim. See Valley 18 Forge Christian College v. Americans United for Separation of Church & State, 19 454 U.S. 464, 476 n.14, 102 S. Ct. 752, 70 L.Ed.2d 700 (1982) (where organization 20 relies entirely on associational standing, "its claim to standing can be no different 21 from those of the members it seeks to represent"). 22 24 25 26 27 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Defendants are thus entitled to judgment in their favor.

23 DATED: ______________________________ Hon. Virginia A. Phillips United States District Judge

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1 PRESENTED BY: TONY WEST 2 Assistant Attorney General 3 ANDRÉ BIROTTE, Jr. United States Attorney 4 JOSEPH H. HUNT 5 Branch Director VINCENT M. GARVEY 6 Deputy Branch Director 7 8 /s/ Paul G. Freeborne 9 PAUL G. FREEBORNE W. SCOTT SIMPSON 10 JOSHUA E. GARDNER 11 RYAN B. PARKER Trial Attorneys 12 U.S. Department of Justice, Civil Division 13 14 Attorneys for Defendants United States of America and Secretary of Defense 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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