Log Cabin Republicans v. United States of America et al

Filing 90

ANSWER to Amended Complaint 25 filed by Defendants United States of America, Donald H Rumsfeld.(Freeborne, Paul)

Log Cabin Republicans v. United States of America et al

Doc. 90

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TONY WEST Assistant Attorney General VINCENT M. GARVEY PAUL G. FREEBORNE U.S. Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: paul.freeborne@ usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION LOG CABIN REPUBLICANS, ) ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA AND ) ROBERT M. GATES, Secretary of ) Defense, in his official capacity, ) ) Defendants. ) ) ) ) Case No. EDCV04-8425 VAP DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT Complaint filed: April 28, 2006 Trial date: None scheduled

Defendants United States of America and Robert M. Gates, Secretary of Defense, hereby respond to Plaintiff Log Cabin Republicans' First Amended Complaint as follows: FIRST DEFENSE This Court lacks jurisdiction over this action under Article III of the United States Constitution. SECOND DEFENSE Plaintiff lacks organizational standing.

Defendants' Answer to First Amended Complaint

Dockets.Justia.com

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THIRD DEFENSE The claims presented fail to state a claim upon which relief can be granted. Answering the numbered paragraphs of Plaintiff's First Amended Complaint, Defendants respond as follows: 1. Paragraph 1 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied. 2. Paragraph 2 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to the cases referenced for a full and accurate statement of their contents. 3. Paragraph 3 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to the cases referenced for a full and accurate statement of their contents. 4. Paragraph 4 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to the cases referenced for a full and accurate statement of their contents. 5. Paragraph 5 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to the cases referenced for a full and accurate statement of their contents. 6. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in the first sentence of paragraph 6. The remainder of paragraph 6 consists of conclusions of law and/or statements of Plaintiff's case to which no response is required; to the extent a response is required, denied.
-2Defendants' Answer to First Amended Complaint

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7.

Paragraph 7 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 7.

8.

Paragraph 8 also consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 8.

9.

Paragraph 9 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

10. 11. 12. 13.

Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 10. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 11. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 12. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 13, except to admit that Mr. Nicholson enlisted in the United States Army in 2001 and was trained as a human intelligence collector.

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Defendants' Answer to First Amended Complaint

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14.

Defendants admit that Mr. Nicholson was subject to separation proceedings and discharged in 2002 pursuant to the statements prong of the statute, 10 U.S.C. § 654(b)(2), and applicable regulations. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the remaining allegations contained in paragraph 14.

15.

Paragraph 15 contains conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

16.

Paragraph 16 contains conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

17. 18.

Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 17. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in the first sentence of paragraph 18. The second sentence of Paragraph 18 contains conclusions of law and/or statements of Plaintiff's case to which no response is required; to the extent a response is required, denied.

19.

Paragraph 19 contains conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained therein.

20.

Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in the first, second, and third sentences of paragraph 20. The fourth and fifth sentences contain conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

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Defendants' Answer to First Amended Complaint

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21. 22. 23.

Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 21. Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 22. Denied, except to aver that Robert Gates is the Secretary of Defense and performs the duties and responsibilities of that office in his official capacity.

24.

Paragraph 24 consists of conclusions of law and/or statements of Plaintiff's case to which no response is required; to the extent a response is required, denied.

25.

Paragraph 25 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of those allegations, except to admit the allegations in the third sentence of paragraph 25.

26.

Paragraph 26 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to the Department of Defense Directive 1332.14 (1981) and Department of Defense regulations for a full and accurate statement of their contents.

27.

Paragraph 27 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to the July 19, 1993 statement of President Clinton and 10 U.S.C. § 654 for a full and accurate statement of their contents.

28.

Paragraph 28 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the
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Department of Defense regulations for a full and accurate statement of their contents. 29. Paragraph 29 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the Department of Defense regulations for a full and accurate statement of their contents. 30. Paragraph 30 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the Department of Defense regulations for a full and accurate statement of their contents. 31. Paragraph 31 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the Department of Defense regulations for a full and accurate statement of their contents. 32. Paragraph 32 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the Department of Defense regulations for a full and accurate statement of their contents. 33. Paragraph 33 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the Department of Defense regulations for a full and accurate statement of their contents.

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Defendants' Answer to First Amended Complaint

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34.

Defendants are without information and knowledge sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 34, except to admit that from 1997-2008 the Department of Defense has discharged 10,507 members under the 10 U.S.C. § 654 and Department of Defense regulations; otherwise, denied

35.

Paragraph 35 (including subparagraphs (a)-(e)) consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied, except to refer the Court to 10 U.S.C. § 654 and the Department of Defense regulations for a full and accurate statement of their contents.

36.

Paragraph 36 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

37. 38. 39.

Paragraph 37 consists of opinion, not an allegation of material fact requiring a response. Defendants incorporate by reference their responses to paragraphs 1 through 37 of Plaintiff's First Amended Complaint. Paragraph 39 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

40.

Paragraph 40 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

41.

Paragraph 41 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

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Defendants' Answer to First Amended Complaint

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42.

Paragraph 42 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

43.

Paragraph 43 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

44.

Paragraph 44 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

45. 46.

Defendants incorporate by reference their responses to paragraphs 1 through 44 of Plaintiff's First Amended Complaint. Paragraph 46 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

47.

Paragraph 47 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

48.

Paragraph 48 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

49.

Paragraph 49 consists of conclusions of law and/or statements of Plaintiff's position to which no response is required; to the extent a response is required, denied.

50-57. With respect to the remainder of the paragraphs in the First Amended Complaint, the Court has dismissed Plaintiff's equal protection claim. See Order, dated June 6, 2009 [Dkt. 83], at 18-20. No response is thus required to the allegations contained in paragraphs 50-57 of Plaintiff's First Amended Complaint.

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Defendants' Answer to First Amended Complaint

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All allegations not here before specifically admitted, denied, or modified, are hereby denied. Wherefore, having fully answered, Plaintiff is not entitled to the relief requested or to any relief whatsoever and Defendants pray that the Court enter judgment for Defendants, order the action dismissed with prejudice, and grant Defendants costs incurred herein and such other and further relief as the Court may deem just and proper. Dated: July 14, 2009 Respectfully submitted, TONY WEST Assistant Attorney General VINCENT M. GARVEY Deputy Branch Director /S/ PAUL G. FREEBORNE Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants United States of America and Secretary of Defense

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Defendants' Answer to First Amended Complaint