Log Cabin Republicans v. United States of America et al

Filing 170

ORDER by Judge Virginia A. Phillips: denying in part defendants' #136 Motion for Summary Judgment to the extent it is based on a lack of standing. The Court grants the parties leave to file supplemental briefs for the sole purpose of discussing application of the Witt standard to Plaintiff's substantive due process claim. Defendant may file its supplemental memorandum of points and authorities, along with any further supporting evidence, no later than June 9, 2010. Plaintiff may file its response no later than June 23, 2010. Neither side's supplemental memoranda shall exceed fifteen pages, exclusive of tables of contents and authorities. (mrgo)

Log Cabin Republicans v. United States of America et al

Doc. 170

1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) non-profit corporation, ) 12 ) Plaintiff, ) 13 ) v. ) 14 ) UNITED STATES OF AMERICA ) 15 and DONALD H. RUMSFELD, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) ________________________ 18 19 Case No. CV 04-08425-VAP (Ex) [Motion filed on March 29, 2010] ORDER DENYING IN PART MOTION FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Log Cabin Republicans, ("Plaintiff" or "Plaintiff

20 association"), a nonprofit corporation whose membership 21 includes current, retired, and former homosexual members 22 of the U.S. armed forces, challenges as "restrictive, 23 punitive, . . . discriminatory," and unconstitutional the 24 "Don't Ask Don't Tell" policy ("DADT Policy") of 25 Defendants United States of America and Robert M. Gates 26 ("Defendants"), including both the statute codified at 10 27 U.S.C. section 654 and the implementing instructions 28 appearing at Department of Defense Instructions("DoDI" or

Dockets.Justia.com

1 "implementing instructions") 1332.14, 1332.30, and 2 1304.26. 3 judgment. 4 5 6 A. 7 The DADT Policy The DADT Policy includes both the statutory language I. BACKGROUND Defendants now move for entry of summary

8 appearing at 10 U.S.C. section 654 and the implementing 9 instructions appearing as DoDIs 1332.14, 1332.30, and 10 1304.26. DADT can be triggered by three kinds of 11 "homosexual conduct:" (1) "homosexual acts"; (2) 12 statements that one "is a homosexual"; or (3) marriage 13 to, or an attempt to marry, a person of one's same 14 biological sex. 16 17 18 1. "Homosexual Acts" First, Defendants may "initiate separation 10 U.S.C. § 654 (b); DoDI 1332.14 at 15 17­18; 1332.30 at 9­10.

19 proceedings" -- i.e., begin the process of removing an 20 active service member from military ranks -- if a service 21 member engages in a "homosexual act," defined as "(A) any 22 bodily contact, actively undertaken or passively 23 permitted, between members of the same sex for the 24 purpose of satisfying sexual desires; and (B) any bodily 25 contact which a reasonable person would understand to 26 demonstrate a propensity or intent to engage in an act 27 28
2

1 described in subparagraph (A)." 2 (f)(3). 3 4 5 2.

10 U.S.C. § 654 (b)(1),

Statements About One's Homosexuality

Second, Defendants may initiate separation if a 10

6 service member makes a statement "he or she is a 7 homosexual or bisexual, or words to that effect." 8 U.S.C. § 654(b)(2). These words create a presumption the

9 service member is a "person who engages in, attempts to 10 engage in, has a propensity to engage in, or intends to 11 engage in homosexual acts." 10 U.S.C. § 654(b)(2). A 12 propensity is "more than an abstract preference or desire 13 to engage in homosexual acts; it indicates a likelihood 14 that a person engages or will engage in homosexual acts." 15 DoDI 1332.14 at 18. 16 17 18 19 3. Marriage or Attempted Marriage to a Person of the Same Sex The third route to separation under DADT, marriage or

20 attempted marriage to a person of the same sex, is self21 explanatory. 22 23 24 4. Discharge Once Defendants find a service member has engaged in

25 "homosexual conduct," as defined above, Defendants will 26 discharge him or her unless the service member can 27 demonstrate that, inter alia, such acts are not his or 28
3

1 her usual or customary behavior and that he or she has no 2 propensity to engage in "homosexual acts." 3 654(b)(1); DoDI 1332.14 at 18. 4 5 B. 6 Plaintiff and Its Members According to the Complaint, Plaintiff Log Cabin 10 U.S.C. §

7 Republicans ("Plaintiff") is a nonprofit corporation 8 organized under the laws of the District of Columbia, is 9 associated with the Republican Party, and is dedicated to 10 the interests of the gay and lesbian community.1 11 12 John Alexander Nicholson is a member of Plaintiff Mr. Nicholson enlisted in the United (Declaration of John Mr. 13 organization.

14 States Army in 2001; the Army discharged him one year 15 later pursuant to the DADT Policy. 16 Alexander Nicholson ("Nicholson Decl.") ¶¶ 3, 5­6.) 17 Nicholson signed up to be included in Plaintiff's 18 database in April of 2006. 19 ("SGI") at 6:5­20.) 21 Although neither Defendants in their Motion nor Plaintiff in its Opposition point to any evidence 23 concerning the corporate form of Plaintiff, the nature of Plaintiff organization does not appear to be in dispute. 24 2 Although Defendants argue "the record contains no evidence that the national board of directors ever 25 granted 'honorary membership' to Mr. Nicholson," 26 Plaintiff has submitted evidence, in the form of the Declaration of Jamie Ensley, that the Georgia Chapter of 27 Plaintiff organization granted Mr. Nicholson honorary membership. (See Decl. of Jamie Ensley ("Ensley Decl.") (continued...) 28 22
4
1

(Stmt. of Genuine Issues (Id.) Mr.

In 2006, Plaintiff's Georgia chapter

20 awarded Mr. Nicholson honorary membership.2

1 Nicholson has attended several of Plaintiff's national 2 conventions, (id.), and addressed Plaintiff's national 3 convention in 2006. 4 5 John Doe is also a member of Plaintiff organization. He joined (Decl. John Doe is (SGI at (Doe 6 (Decl. of John Doe ("Doe Decl.") ¶ 2.) (SGI at 5:11­6:4.)

7 Plaintiff at some time before October 12, 2004. 8 of C. Martin Meekins ("Meekins Decl.") ¶ 3.) 10 recently completed a tour of duty in Iraq. 11 7:5­8:10; Doe Decl. ¶ 4.) 13 Decl. ¶¶ 2, 6.) 9 an officer in the United States Army Reserves who

Lt. Col. Doe is gay and wishes

12 to continue his service in the United States Army. 14 this action would subject him to investigation and 15 discharge under the DADT Policy. 16 17 C. 18 Procedural History (Doe Decl. ¶ 8.)

He believes that identifying himself in

Plaintiff filed its Complaint on October 12, 2004.

19 On December 13, 2004, Defendants moved to dismiss the 20 Complaint, alleging, inter alia, that Plaintiff lacked 21 standing. The Honorable George P. Schiavelli granted the 22 motion to dismiss the Complaint with leave to amend on 23 March 21, 2006. 24 25 26 27 (...continued) 28 ¶ 4.)
5
2

1

On April 28, 2006, Plaintiff filed timely its Amended

2 Complaint, attaching the declaration of Mr. Nicholson. 3 According to the Amended Complaint, the DADT Policy 4 violates the First and Fifth Amendments to the U.S. 5 Constitution by violating guarantees to: (1) substantive 6 due process; (2) equal protection; and (3) freedom of 7 speech. On June 11, 2007, Plaintiff filed the 8 declaration of Lt. Col. Doe, a current member of 9 Plaintiff organization, a homosexual, and a current U.S. 10 Army reservist on active duty. 11 12 On June 12, 2006, Defendants moved to dismiss the On May 23, 2008, Judge Schiavelli 13 Amended Complaint.

14 entered an order staying this action in light of the 15 Ninth Circuit's May 21, 2008 decision in Witt v. Dep't of 16 the Air Force, 527 F.3d 806 (9th Cir. 2008). After the 17 case was transferred to this Court in late 2008, the 18 Court heard the motion to dismiss, and denied it on June 19 9, 2009. On November 24, 2009, the Court denied a motion 20 by Defendants to certify its June 9, 2009 Order for 21 interlocutory appeal. 22 23 On March 29, 2010, Defendants filed this Motion for Plaintiff's Opposition and Defendants' On April 21, 2010, the Court 24 Summary Judgment.

25 Reply were filed timely. 27 to standing. 28

26 provided the parties with its tentative ruling relating On April 22, 2010, Plaintiff filed a

6

1 supplemental memorandum of points and authorities in 2 support of its Opposition, and on April 23, 2010, 3 Defendants filed a response to Plaintiff's supplemental 4 brief. On April 26, 2010, Plaintiff submitted the The 5 Meekins Declaration in support of its Opposition.

6 Court held a hearing on the Motion on April 26, 2010, and 7 granted the parties leave to submit further supplemental 8 briefing concerning standing; both sides timely filed 9 additional briefs on May 3, 2010. 10 11 D. 12 Evidentiary Objections The only evidentiary objection the Court need address

13 in order to resolve the threshold issue of standing is 14 Defendants' challenge to consideration of the Meekins 15 declaration. 16 17 Defendants argue that the Court should strike the Defendants 18 Meekins Declaration because Plaintiff failed to disclose 19 Mr. Meekins as a witness during discovery. 20 are correct that where a party fails to disclose the 21 identity of a witness required by either Rule 26(a) or 22 otherwise requested during discovery without substantial 23 justification, the party may not later rely on evidence 24 from that witness. 26 37(c)(1). 27 28
7

See Wong v. Regents of Univ. of Cal.,

25 410 F.3d 1052, 1062 (9th Cir. 2005); Fed. R. Civ. P.

1

Defendants' challenge to the declaration fails for First, Rule 26(a) only requires a Fed.

2 two reasons, however.

3 party to disclose the identity of persons "the disclosing 4 party may use to support its claims or defenses." 5 R. Civ. P. 26(a)(1)(A)(i). 6 offered solely to rebut Defendants' challenge to 7 Plaintiff's standing to bring this lawsuit, by 8 establishing Lt. Col. Doe's membership in Plaintiff 9 organization at the time the action commenced. 11 merits of Plaintiff's claims for relief. 13 Rule 26(a). Mr. 10 Meekins does not offer any testimony relating to the Accordingly, 12 disclosure of Mr. Meekins' identity was not required by Defendants have pointed to no written 14 discovery request they propounded upon Plaintiff that 15 would have called for identification of Mr. Meekins. 16 Plaintiff thus was not obligated to disclose Mr. Meekins' 17 identity during discovery. 18 19 Furthermore, assuming disclosure was required either 20 by Rule 26(a) or an as-yet unidentified discovery 21 request, substantial justification exists for Plaintiff's 22 failure to disclose Mr. Meekins' identity during 23 discovery. Defendants have known that Plaintiff sought 24 to use Lt. Col. Doe's membership as the basis of its 25 claim to standing for almost three years, yet never 26 challenged the timing of his membership in Plaintiff 27 28
8

The Meekins Declaration is

1 organization. 3

The ambiguity that caused the Court to

2 question when Lt. Col. Doe became a member of Plaintiff 3 organization appears clearly on the face of the Doe 4 Declaration, which has been in Defendants' possession 5 since June 11, 2007. Based on Defendants' silence in the 6 face of the Doe Declaration, Plaintiff reasonably may 7 have believed that the timing of Lt. Col. Doe's 8 membership was not in dispute. Plaintiff thus would have 9 had no reason to seek out additional evidence of the date 10 on which Lt. Col. Doe joined Plaintiff organization, let 11 alone disclose such evidence. 12 13 15 16 17 II. LEGAL STANDARD A motion for summary judgment shall be granted when For the foregoing reasons, the Court DENIES 14 Defendants' request to strike the Meekins Declaration.

18 there is no genuine issue as to any material fact and the 19 moving party is entitled to judgment as a matter of law. 20 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 21 477 U.S. 242, 247-48 (1986). The moving party must show Anderson, 477 22 that "under the governing law, there can be but one 23 reasonable conclusion as to the verdict." 24 U.S. at 250. 25 26 Defendants did not raise this issue in their Motion; it was raised by the Court sua sponte in its tentative 27 ruling distributed to the parties before the April 26, 28 2010 hearing.
9
3

1 2 Generally, the burden is on the moving party to 3 demonstrate that it is entitled to summary judgment. 4 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 5 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 6 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears 7 the initial burden of identifying the elements of the 8 claim or defense and evidence that it believes 9 demonstrates the absence of an issue of material fact. 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11 12 Where the non-moving party has the burden at trial, 13 however, the moving party need not produce evidence 14 negating or disproving every essential element of the 15 non-moving party's case. Celotex, 477 U.S. at 325. 16 Instead, the moving party's burden is met by pointing out 17 that there is an absence of evidence supporting the non18 moving party's case. Id. The burden then shifts to the Fed. R. 19 non-moving party to show that there is a genuine issue of 20 material fact that must be resolved at trial. 22 U.S. at 256. The non-moving party must make an 21 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 23 affirmative showing on all matters placed in issue by the 24 motion as to which it has the burden of proof at trial. 25 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See 26 also William W. Schwarzer, A. Wallace Tashima & James M. 27 Wagstaffe, Federal Civil Procedure Before Trial § 14:144. 28
10

1 A defendant has the burden of proof at trial with respect 2 to any affirmative defense. 4 5 A genuine issue of material fact will exist "if the Anderson, 477 U.S. at 6 evidence is such that a reasonable jury could return a 7 verdict for the non-moving party." 8 248. In ruling on a motion for summary judgment, the Barlow v. Ground, 943 F.2d Payan v. Aramark Mgmt. 3 Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007).

9 Court construes the evidence in the light most favorable 10 to the non-moving party. 11 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v. 12 Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 13 (9th Cir. 1987). 14 15 16 A. 17 Standing Defendants argue they are entitled to summary III. DISCUSSION

18 judgment because Plaintiff lacks standing to bring this 19 action. 20 21 "To satisfy Article III's standing requirement, 22 [plaintiffs] must demonstrate: (1) they suffered or will 23 suffer an 'injury in fact' that is concrete, 24 particularized, and actual or imminent; (2) the injury is 25 fairly traceable to [defendant's] challenged action; and 26 (3) the injury is likely, not merely speculative, and 27 will be redressed by a favorable decision." 28
11

Biodiversity

1 Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2 2002); see also Lujan v. Defenders of Wildlife, 504 U.S. 3 555, 560­61 (1992). 5 its standing. 7 2010). 8 9 An association has standing to sue on behalf of its 10 members when "(a) its members would otherwise have 11 standing to sue in their own right; (b) the interests it 12 seeks to protect are germane to the organization's 13 purpose; and (c) neither the claim asserted nor the 14 relief requested requires the participation of individual 15 members in the lawsuit." 17 18 Plaintiff has identified two of its members who, it 19 argues, have standing to sue in their own right and thus 20 confer standing on it: John Doe and John Alexander 21 Nicholson. Defendants do not dispute the second and 22 third prongs of Hunt's associational standing elements as 23 to Lt. Col. Doe and Mr. Nicholson, nor do they dispute 24 that Mr. Nicholson has standing to sue in his own right. 25 Defendants argue, instead, that Lt. Col. Doe and Mr. 26 Nicholson are not bona fide members of Plaintiff. 27 Defendants further argue that Lt. Col. Doe lacks standing 28
12

Plaintiff, as the party invoking

4 federal jurisdiction, bears the burden of establishing See Lujan, 504 U.S. at 561; Chandler v. 6 State Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.

Hunt v. Wash. State Apple

16 Adver. Comm'n, 432 U.S. 333, 343 (1977).

1 to sue in his own right because he has not yet been 2 discharged from the military, and thus any harm to him 3 from the DADT Policy is speculative. Defendants also 4 argue that even if Lt. Col. Doe and Mr. Nicholson were 5 bona fide members with standing to sue in their own 6 right, they were not members at the time this action 7 commenced, and the Court therefore lacks subject matter 8 jurisdiction. 10 identity. 11 12 At the threshold, the Court must determine the date 13 on which Plaintiff's standing should be evaluated. 14 Defendants argue the Court should examine Plaintiff's 15 standing as of the date the action was initiated, i.e., 16 the date the original Complaint was filed -- October 12, 17 2004. Plaintiff, on the other hand, contends the Court the date 18 should inquire whether standing existed as of 20 21 As a general matter, "[s]tanding is determined at the 22 time of the lawsuit's commencement, and [the Court] must 23 consider the facts as they existed at that time the 24 complaint was filed." Skaff v. Meridien N. Am. Beverly 25 Hills, LLC, 506 F.3d 832, 850 (9th Cir. 2007) (citing 26 Lujan, 504 U.S. at 569 n. 4); see also Friends of the 27 Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 180 28
13

Finally, Defendants argue that Plaintiff

9 cannot proceed without disclosing Lt. Col. Doe's

19 the First Amended Complaint was filed, April 28, 2006.

1 (2000) ("[W]e have an obligation to assure ourselves that 2 [plaintiff] had Article III standing at the outset of the 3 litigation."). 4 5 Plaintiff urges that this case falls within an In his March 21, 2006 6 exception to the general rule.

7 Order, Judge Schiavelli dismissed Plaintiff's original 8 Complaint and granted Plaintiff leave to file a First 9 Amended Complaint. Relying on Loux v. Rhay, 375 F.2d 55, 10 57 (9th Cir. 1967), Plaintiff argues that "[t]he 11 dismissal of Log Cabin's original complaint and the 12 filing of the first amended complaint rendered the 13 original complaint of no legal effect and obsolete." 14 (Pl.'s Apr. 22, 2010 Mem. of P. & A. at 1:19­20.) 15 support of this argument, Plaintiff cites County of 16 Riverside v. McLaughlin, 500 U.S. 44 (1991). 17 2:14­3:2.) 18 19 In McLaughlin, the class members claimed that the 20 County of Riverside had violated their Constitutional 21 rights when it failed to provide persons subject to 22 warrantless arrest with timely probable cause 23 determinations. 25 single plaintiff. 27 plaintiffs. 28
14

In

(Id. at

McLauglin, 500 U.S. at 47. Id. at 48.

The original

24 complaint in McLaughlin, filed in August 1987, named a The second amended 26 complaint, filed in July 1988, named three additional Id. at 48­49. In response to the

1 defendants' argument challenging the standing of the 2 named plaintiffs, the Court examined the facts relating 3 to standing as set forth in the second amended complaint, 4 not the original complaint. 5 6 Defendants attempt to avoid the effect of McLaughlin 7 by arguing that the Supreme Court analyzed standing as of 8 the date the second amended complaint was filed because 9 new named plaintiffs were added in the second amended 10 complaint, and the claims of these new plaintiffs were 11 not included in the case before that date. 12 unpersuasive, however. 14 McLaughlin. This is The procedural posture of this Id. at 50­52.

13 case closely resembles that before the Court in Just as a class must identify a named 15 plaintiff with standing, so too must an association 16 seeking to assert claims of its members identify an 17 individual member with standing. Although it is true 18 that there has been but one named plaintiff here for the 19 duration of the action, an association that newly 20 identifies a member for standing purposes is analogous to 21 a class that newly identifies a class member with 22 standing. Accordingly, the analysis of McLaughlin 23 applies here, and the critical date for standing is the 24 date the First Amended Complaint was filed -- April 28, 25 2006. 26 27 28
15

1

Turning to the specific standing arguments raised by

2 the parties with respect to Lt. Col. Doe and Mr. 3 Nicholson, the Court finds each of these challenges, too, 4 lacks merit. 5 6 7 1. John Doe Defendants raise three principal objections to

8 Plaintiff's use of Lt. Col. Doe to confer standing: (1) 9 he does not have standing to sue in his own right; (2) he 10 was not a member of Plaintiff at the time the original 11 Complaint was filed; and (3) Plaintiff may not rely on 12 John Doe for standing without identifying him by name. 13 The Court addresses each argument in turn. 14 15 16 a. Imminence of Harm Defendants contend that because Lt. Col. Doe has not

17 been discharged from the military yet, any harm to him is 18 too speculative to constitute the actual or imminent harm 19 required for standing. 20 21 The Supreme Court has rejected the argument that a 22 plaintiff lacks standing to challenge the 23 constitutionality of a statute merely because the statute 24 has not been enforced against him yet. Instead, the 25 Court has long held that so long as there is a reasonable 26 threat of enforcement, "it is not necessary that 27 petitioner first expose himself to actual arrest or 28
16

(Mot. at 11:8­12:17.)

1 prosecution to be entitled to challenge a statute that he 2 claims deters the exercise of his constitutional rights." 3 Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also, 4 e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 5 128­29 (2007) ("[W]here threatened action by government 6 is concerned, we do not require a plaintiff to expose 7 himself to liability before bringing suit to challenge 8 the basis for the threat -- for example the 9 constitutionality of a law threatened to be enforced."); 10 Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 11 477 U.S. 619, 626 n. 1 (1986). 12 13 Here, the DADT Policy on its face shows that there is The 14 a reasonable threat that it will be enforced against Lt. 15 Col. Doe if the military learns his identity. 16 language of the DADT Policy is mandatory, see 10 U.S.C. § 17 654(b)(2) ("A member of the armed forces shall be 18 separated from the armed forces . . . if . . . the member 19 has stated that he or she is a homosexual . . . .") 20 (emphasis added), and does not leave the armed forces any 21 discretion about enforcing the policy where a 22 servicemember is unable to rebut a finding that he or she 23 is "a person who engages in, attempts to engage in, has a 24 propensity to engage in, or intends to engage in 25 homosexual acts." Id. Lt. Col. Doe has stated that he 26 is homosexual (see Doe Decl. ¶ 2); the mandatory nature 27 of the DADT Policy requires it be applied to him if he is 28
17

1 identified.

Furthermore, Defendants do not dispute that

2 many service members have been discharged previously 3 under the DADT Policy, or that the DADT Policy will 4 continue to be applied to persons who admit to being 5 homosexuals. 6 7 Indeed, Defendants have not argued that it is even 8 within their discretion to decline to initiate separation 9 proceedings against Lt. Col. Doe if he were identified. 10 In fact, they are unwilling to stipulate not to initiate 11 such proceedings against him were his identity revealed 12 for purposes of this litigation. 14 enforced against Lt. Col. Doe. 15 16 Defendants' legal authorities do not establish that In 17 no imminent threat of harm to Lt. Col. Doe exists. Defendants have offered 13 no evidence suggesting that the DADT Policy will not be

18 support of their argument, Defendants rely on City of Los 19 Angeles v. Lyons, 461 U.S. 95 (1983), Nat'l Treasury 20 Employees Union v. Dep't of the Treasury, 25 F.3d 237 21 (5th Cir. 1994), and Hodgers-Durgin v. de la Viña, 199 22 F.3d 1037 (9th Cir. 1999). 23 24 Lyons is easily distinguishable from the facts here. 25 In Lyons, the Supreme Court held that a plaintiff did not 26 have standing to obtain injunctive relief preventing the 27 Los Angeles Police Department from enforcing an unwritten 28
18

1 policy that officers employ choke holds to restrain 2 suspects who pose no threat of deadly force to officers. 3 Lyons, 461 U.S. at 98, 111­13. In Lyons, there was 4 substantial uncertainty as to whether or not the 5 plaintiff would engage in future activity sufficient to 6 arouse the suspicions of police officers and if he did, 7 whether or not the police officers would enforce the 8 unwritten alleged choke hold policy. See id. at 105­06. 9 The Court recognized there was nothing about the 10 plaintiff that made it more likely the policy would be 11 applied to him than any other individual. 13 any other citizen of Los Angeles.") 14 15 16 Here, by contrast, the DADT Policy is nonThere is no reason to doubt it will be His testimony that he is gay certainly (See Doe Decl. ¶ 2.) 17 discretionary and based on a single criterion which Lt. 18 Col. Doe meets. 19 applied to him. 21 imminent harm. 22 23 National Treasury similarly fails to support There, the Fifth Circuit found the 24 Defendants' position. See id. at 111 12 ("[Plaintiff] is no more entitled to an injunction than

20 suffices to raise a triable issue of material fact as to

25 plaintiff organization lacked standing because the 26 plaintiff had "not even alleged that there is a threat of 27 such an injury to any individual member of the 28
19

1 association," Nat'l Treasury, 25 F.3d at 242, not because 2 the policy it challenged had not been enforced against 3 any of its members. 5 6 Finally, Hodgers-Durgin does not support Defendants' The named plaintiffs in Hodgers-Durgin sought Although 7 position. Here, Plaintiff has identified Lt. 4 Col. Doe as a member to whom a threat exists.

8 to enjoin an alleged Border Patrol practice of stopping 9 motorists in violation of the Fourth Amendment. 10 Defendants maintain that the Ninth Circuit found the 11 named plaintiffs lacked standing, the Ninth Circuit's 12 holding actually was two-fold: (1) the named plaintiffs 13 sufficiently alleged a "case or controversy" for 14 purposes of Article III standing, but (2) failed to show 15 a likelihood of substantial and immediate irreparable 16 injury for the purposes of obtaining a preliminary 17 injunction. See Hodgers-Durgin, 199 F.3d at 1041­44. 18 The standard for obtaining injunctive relief, of course, 19 is different from the standard for establishing standing, 20 as evidenced by the Ninth Circuit's decision. 21 22 23 b. When John Doe Became A Member of Plaintiff John Doe began paying membership dues to Plaintiff Although he apparently took

24 before the filing of the Original Complaint in 2004. 25 (Meekins Decl. ¶ 4.) 26 measures to protect against disclosure of his identity -- 27 including paying his membership dues through a member of 28
20

1 Plaintiff's national board rather than directly to the 2 organization, (see id.) -- he appears to have become a 3 dues-paying member before the Original Complaint was 4 filed. 5 6 Summary judgment is inappropriate here whether the As discussed 7 Court applies April 28, 2006 or October 12, 2004 as the 8 appropriate date for its standing analysis. 9 above, Plaintiff here must demonstrate it had standing to 10 bring suit as of April 28, 2006, the date the First 11 Amended Complaint was filed. Lt. Col. Doe was 12 indisputably a member of Plaintiff before that date. 13 Even assuming arguendo that Defendants are correct in 14 their assertion that Plaintiff must establish it had 15 standing as of the date the original complaint was filed, 16 however, there is at a minimum a genuine issue of fact as 17 to whether or not Lt. Col. Doe was a member of Plaintiff 18 association on that date. 20 basis. 4 21 22 23 24 25 Defendants further appear to argue that Lt. Col. Doe was not a bona fide member of Plaintiff organization at 27 any time. (See Mot. at 11:6­8.) As discussed above, however, it is clear that Lt. Col. Doe was a dues-paying 28 member of Plaintiff organization. 26
21
4

(See id. ¶¶ 3­4.)

This

19 genuine issue of fact precludes summary judgment on this

1 2

c.

Proceeding Pseudononymously

Finally, Defendants argue that Plaintiff should not

3 be allowed to proceed without identifying Lt. Col. Doe by 4 name, and that by allowing them to do so, the Court is 5 departing from its March 21, 2006 ruling. 6 May 3, 2010 Mem. of P. & A. at 5:11­7:23.) (See Defs.' The Court has

7 already held that this case presents the rare set of 8 circumstances in which anonymity is appropriate, however, 9 and declines to revisit this ruling. 10 at 13:13­20.) (See Docket No. 83 The rationale for that ruling is only

11 strengthened by Defendants' refusal to stipulate that Lt. 12 Col. Doe would not be subject to separation proceedings 13 if he were identified by name. (Opp'n at 9:3­6.) 14 Defendants cite Judge Schiavelli's March 21, 2006 Order 15 on this issue, but that Order did not foreclose entirely 16 the possibility that Plainiff could proceed without 17 identifying the members on whom it relies for standing. 18 (See Docket No. 24 at 16:1­17:14.) Accordingly, the 19 Court's ruling that Plaintiff may proceed without 20 identifying Lt. Col. Doe by name is not a "departure" 21 from the March 21, 2006 Order. 22 23 24 2. Terry Nicholson In addition to Lt. Col. Doe, Mr. Nicholson's

25 membership in Plaintiff association provides a basis for 26 the Court to find Plaintiff has standing here. 27 28
22

1

In 2006, Plaintiff's Georgia chapter made Mr. (Ensley Decl. ¶ 4.)

2 Nicholson an honorary member.

3 Though Plaintiff does not specify the date in 2006 on 4 which Mr. Nicholson became an honorary member, the 5 parties agree that he signed up to be included in 6 Plaintiff's database in April 2006, (Stmt. of Undisputed 7 Facts ("SUF") ¶ 10; SGI ¶ 10), and Plaintiff's records 8 indicate that Mr. Nicholson has been a member since April 9 28, 2006. (See Decl. of Terry Hamilton ("Hamilton Construing these facts in the 10 Decl.") ¶¶ 3­5, Ex. A.)

11 light most favorable to Plaintiff, the non-moving party, 12 it appears that Mr. Nicholson was an honorary member at 13 the time the First Amended Complaint was filed, the 14 applicable measuring date here. 15 16 Defendants argue that Mr. Nicholson's honorary 17 membership is a nullity because the provision of 18 Plaintiff's bylaws authorizing awards of honorary 19 membership conflict with Plaintiff's articles of 20 incorporation -- which provide for a single class of dues21 paying members -- and thus Plaintiff has no ability to 22 award honorary memberships. Plaintiff maintains that Mr. 23 Nicholson's honorary membership is valid, and even if it 24 were not, sufficient indicia of Mr. Nicholson's 25 membership exist to provide for standing here. 26 27 28
23

1

Defendants respond that the line of authority

2 permitting associational standing where sufficient 3 indicia of membership exist is unavailable to Plaintiff, 4 a traditional membership organization, and that in any 5 case, the indicia of Mr. Nicholson's membership are 6 insufficient to confer standing. As the Court finds 7 Defendants have not met their burden of showing that 8 Plaintiff's grant of honorary membership to Mr. Nicholson 9 was invalid, the Court does not reach the question of 10 whether Plaintiff may alternatively obtain standing based 11 on Mr. Nicholson's indicia of membership. 12 13 Defendants' argument that Mr. Nicholson's honorary First, although as a 14 membership is insufficient to confer standing on 15 Plaintiff fails for two reasons. 16 general principle of corporate law5 bylaws that conflict 17 with mandatory provisions of a corporation's articles of 18 incorporation are ultra vires and void, see, e.g., 19 Paolino v. Mace Sec. Int'l, Inc., 985 A.2d 392, 403 (Del. 20 Ch. 2009), Defendants have not shown that the bylaw at 21 issue actually conflicts with Plaintiff's articles of 22 incorporation. 24 25 Defendants have directed the Court to no authority specifically applying the District of Columbia Nonprofit 26 Corporation Act, and the Court has found none; Defendants 27 rely solely on Nev. Classified Sch. Employees Ass'n v. Quaglia, 177 P.3d 509 (Nev. 2008), which appears to have 28 applied Nevada corporate law.
24
5

In relevant part, Plaintiff's articles of

23 incorporation provide that "[m]embers of the corporation

1 shall be individuals who support the purposes of the 2 corporation and make a financial contribution to the 3 corporation each calendar year," and that "[t]he 4 corporation shall have one membership class." 5 App. of Evid. Ex. 8 at 2.) (Reply It does not, however, contain

6 any provision prohibiting Plaintiff's Board of Directors 7 from using their authority to create additional classes 8 and criteria of membership. 9 10 Furthermore, the law of the District of Columbia does The 11 not require the harsh result Defendants advocate. 12 District of Columbia Nonprofit Corporation Act (the 13 "Corporation Act") provides that a nonprofit corporation 14 shall designate its membership class or classes and 15 accompanying qualifications "in the articles of 16 incorporation or the bylaws." 17 (emphasis added). D.C. Code § 29-301.12 The Corporation Act further provides

18 that articles of incorporation shall contain "any 19 provision which the incorporators elect to set forth . . 20 . designating the class or classes of members, stating 21 the qualifications and rights of the members of each 22 class and conferring, limiting, or denying the right to 23 vote." D.C. Code § 29-301.30(a)(5) (emphasis added). 24 Viewed together, these provisions offer flexibility and 25 broad discretion to incorporators as to where they choose 26 to describe membership classes and qualifications. 28
25

The

27 ability to describe one class of members in the articles

1 of incorporation and another in the bylaws falls within 2 this broad discretion. 3 4 B. 5 Standard of Review As indicated during the hearing on April 26, 2010,

6 the Court is inclined apply the standard of review set 7 forth in Witt v. Dep't of the Air Force, 527 F.3d 806, 8 819 (9th Cir. 2008) -- i.e., that "when the government 9 attempts to intrude upon the personal and private lives 10 of homosexuals, in a manner that implicates the rights 11 identified in Lawrence, the government must advance an 12 important government interest, the intrusion must 13 significantly further that interest, and the intrusion 14 must be necessary to further that interest" -- when 15 considering Defendants' challenge to Plaintiff's 16 substantive due process claim. Neither side addressed 17 whether or not the DADT Policy survives the Witt standard 18 in their papers in support of and opposition to the 19 Motion. The Court thus grants both sides leave to submit 20 further briefing addressing application of the Witt 21 standard of review to the DADT Policy. 22 23 24 IV. CONCLUSION For the reasons set forth above, the Court DENIES The Court grants the parties leave to file

25 Defendants' Motion to the extent it is based on a lack of 26 standing. 28
26

27 supplemental briefs for the sole purpose of discussing

1 application of the Witt standard to Plaintiff's 2 substantive due process claim. Defendant may file its 3 supplemental memorandum of points and authorities, along 4 with any further supporting evidence, no later than June 5 9, 2010. Plaintiff may file its response no later than Neither side's supplemental memoranda 6 June 23, 2010.

7 shall exceed fifteen pages, exclusive of tables of 8 contents and authorities. 9 10 11 12 Dated: May 27, 2010 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
27

VIRGINIA A. PHILLIPS United States District Judge