Log Cabin Republicans v. United States of America et al

Filing 160

EXHIBIT to MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 Appendix In Support of Reply in Support of Defendants' Motion for Summary Judgment filed by Defendants Donald H Rumsfeld, United States of America. (Attachments: #1 Exhibit Exhibit 8, #2 Exhibit Exhibit 9, #3 Exhibit Exhibit 10, #4 Exhibit Exhibit 11)(Parker, Ryan)

Log Cabin Republicans v. United States of America et al

Doc. 160 Att. 4

EXHIBIT 11

Dockets.Justia.com

1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 VINCENT M. GARVEY PAUL G. FREEBORNE 4 W. SCOTT SIMPSON JOSHUA E. GARDNER 5 RYAN B. PARKER U.S. Department of Justice 6 Civil Division Federal Programs Branch 7 P.O. Box 883 Washington, D.C. 20044 8 Telephone: [phone] Facsimile: [phone] 9 E-Mail: paul.freeborne @usdoj. gov 10 Attorneys for Defendants United States of America and Secretary of Defense 11 UNITED STATES DISTRICT COURT 12 FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION 13 LOG CABIN REPUBLICANS, ) No. CV04-8425 (VAP) (Ex) 14 ) Plaintiff, ) DEFENDANTS' EVIDENTIARY 15 ) OBJECTIONS TO PLAINTIFF'S v. ) APPENDIX AND STATEMENT 16 ) OF GENUINE ISSUES IN UNITED STATES OF AMERICA AND ) OPPOSITION TO 17 ROBERT GATES, Secretary of Defense, ) DEFENDANTS' MOTION FOR ) SUMMARY JUDGMENT 18 Defendants. ) ) 19 ) ) 20 ) ) 21 22 23 Plaintiff submitted to the Court 3,094 pages of documents in its APPENDIX 24 OF EVIDENCE IN SUPPORT OF LOG CABIN REPUBLICANS' OPPOSITION 25 TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ("Plaintiff's 26 Appendix"). Many of the documents in Plaintiff's Appendix, however, are 27 inadmissible, and the Court should not consider them in ruling on Defendants' 28
DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 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 Motion for summary judgment. See Orr v. Bank of America, 285 F.3d 764, 773 2 (9th Cir. 2002) ("A trial court may only consider admissible evidence in ruling on a 3 motion for summary judgment.")(cited in Judge Phillips's Stand Order). 4 The deficiencies in Plaintiff's Appendix also taint PLAINTIFF'S 5 STATEMENT OF GENUINE ISSUES IN OPPOSITION TO MOTION FOR 6 SUMMARY JUDGMENT (Plaintiff's Statement of Issues"), as many of the 7 purported genuine issues that Plaintiff identifies rely on inadmissible documents. 8 For the Court's convenience, Defendants have created an appendix that identifies 9 (1) documents from Plaintiff's Appendix that are inadmissible, (2) the reasons that 10 the listed documents are inadmissible, and (3) the specific issues from Plaintiff's 11 Statement of Issues that rely on each inadmissible document. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 App. 1100-1128: Homosexuality and the Israel Defense Force App. 1129-1280: Gays in Foreign Militaries 2010: A Global Primer Documents From Plaintiff's Appendix ("App.") App. 0839-0887: PERSEREC Report Entitled: "Nonconforming Sexual Orientation and Military Suitability" Reasons the Document is Inadmissible Genuine Issues that Cite to this Document 8

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. In addition, this document is a draft that was never adopted by the Department of Defense ("DoD") because DoD personnel found the report to be flawed and outside the scope of the approved research. See App. 1293-1294. Accordingly, this report is not an admission by a party-opponent. This report constitutes an out-of-court 43, 46 statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. This report constitutes an out-of-court 40 statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

App. 1281-1292: Attitudes of Iraq and Afghanistan Veterans Toward Gay and Lesbian Service Members App. 1330-1359: Draft of PERSEREC report by Michael McDaniel

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. In addition, as this document is clearly marked as a draft, it is not a statement from a party-opponent. This document states explicitly that it does not address the military's homosexual conduct policy, and it is, therefore, not relevant to Plaintiff's claims: "This work does not deal with the Department of Defense policy that excludes homosexuals from military service. The exclusion policy is separate from those policies that apply to a civilian being investigated for a clearance." App. 1366 This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. In addition, this document states on its face that it does not represent the position of the Department of the Army: "Note: The findings in this report are not to be construed as an official Department of the Army position, unless so designated by other authorized documents." App. 1493 This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

35

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App. 1360-1405: PERSEREC report entitled "Homosexuality and Personnel Security"

App. 1406-1491: Successful Integration of Stigmatized Minorities Into The U.S. Army App. 1492-1558: U.S. Army Research Institute (AIR) Research Report 1657

49

App. 1730-1754: Comparative International Military Personnel Policies

53

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

App. 1791-1806: February 2, 2010 transcript of Admiral Mike Mullen's and Secretary of Defense Robert Gates's testimony before the Senate Armed Services Committee App. 1807-1876: November 2000 report by Aaron Belkin and R.L. Evans entitled "The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces" App. 1877-1888: 2003 Report by Aaron Belkin entitled "Don't Ask, Don't Tell: Is the Gay Ban Based on Military Necessity" App. 1889-1928: September 2000 report by Aaron Belkin and R.L. Evans entitled "The Effects of Including Gay and Lesbian Soldiers in the Australian Armed Forces App. 1929-1935: 2009 article by Col. Om Prakash entitled "The Efficacy of `Don't Ask, Don't Tell'" App. 1936-1973: 2010 report by Gary Gates entitled "Lesbian, Gay, and Bisexual Men and Women in the U.S. Military: Updated Estimates"

In his testimony, Admiral Mullen prefaced his comments with the following statement: "Mr. Chairman, speaking for myself and myself only... ." App. 1795. Because he was not speaking on behalf of the Government, Admiral Mullen's testimony from that point forward is not an admission by a party-opponent and constitutes inadmissible hearsay. This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

9, 44, 88

41, 43, 46

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

41

43, 46

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

153

115, 116, 121, 122

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

App. 1982-2013: March 24, 1995 report entitled "Conduct Unbecoming: The First Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2014-2049: 1996 report entitled "Conduct Unbecoming: The Second Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2050-2089: 1997 report entitled "Conduct Unbecoming: The Third Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2090-2168: 1998 report entitled "Conduct Unbecoming: The Fourth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2169-2253: 1999 report entitled "Conduct Unbecoming: The Fifth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2254-2340: 2000 report entitled "Conduct Unbecoming: The Sixth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass"

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

20

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

21

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

22

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

23

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

24

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

25

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

App. 2341-2443: 2001 report entitled "Conduct Unbecoming: The Seventh Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2444-2500: 2002 report entitled "Conduct Unbecoming: The Eighth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2501-2561: 2003 report entitled "Conduct Unbecoming: The Ninth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2562-2617: 2004 report entitled "Conduct Unbecoming: The Tenth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" App. 2618-2621: February 24, 2010 Los Angeles Times article entitled "Navy Moves to Allow Women on Submarines"

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

26

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

27

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

28

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

29

This article constitutes inadmissible double hearsay. See e.g., Green v. Baca, 226 F.R.D. 624, 637 (C.D. Cal 2005) ("Generally, newspaper articles and television programs are considered hearsay under Rule 801(c) when offered for the truth of the matter asserted. Even when the actual statements quoted in a newspaper article constitute nonhearsay, or fall within a hearsay exception, their repetition in the newspaper creates a hearsay problem. Thus, statements in newspapers often constitute double hearsay.").

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DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

App. 2773-2775: August 28, 2000 New York Times article entitled "Military Reserves are Falling Short in Finding Recruits" App. 2776-2777: March 31, 2010 Washington Post article entitled "A `Don't Ask, Don't Tell' Rules Complicate Survey of Troops on Policy Change" App. 2778-2820: Balancing Your Strengths Against Your Felonies: Consideration for Military Recruitment of Ex-Offenders App. 2821-2836: Report entitled "A Review of the Armed Forces Policy on Homosexuality" App. 2837-2878: "Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence" App. 2879-2881: March 14, 2007 Washington Post article "Bigotry That Hurts Our Military" App. 2937-2945: January 30, 2010 transcript of CNN Interview with William Cohen

This article constitutes inadmissible double hearsay.

72

This article constitutes inadmissible double hearsay.

92

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

114, 117, 119, 120

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

42

47

This article constitutes inadmissible double hearsay.

156

This transcript of a CNN interview constitutes inadmissible double hearsay.

157

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

App. 2946-2993: September 15, 2004 report by Nathaniel Frank, Ph. D. "Gays and Lesbians at War: Military Service in Iraq and Afghanistan under "Don't Ask, Don't Tell" App. 2994: March 29, 2010 article in Roll Call entitled "Wesley Clark Backs Cunningham in North Carolina App. 2995-3093: August 1992, Update of the U.S. Army Research Institute's Longitudinal Research Data Base of Enlisted Personnel App. 3094: February 3, 1020 New York Times article entitled "Powell Favors Repeal of `Don't Ask, Don't Tell"

This article constitutes inadmissible double hearsay.

113

This article constitutes inadmissible double hearsay.

158

This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay.

137

This article constitutes inadmissible double hearsay.

152

Inadmissible Documents Cited in Plaintiff's Genuine Issues But Not Included in Its Appendix Log Cabin Military Survey of Membership, produced by Plaintiff as bates Nos. LCR 001-017 and included as Exhibit B to the Declaration of Terry Hamilton This "survey" is a compilation of outof-court statements introduced as evidence to prove the truth of the matters asserted and is, therefore, inadmissible hearsay. 137

DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]