Almy et al v. United States Department of Defense et al

Filing 31

RESPONSE (re 30 MOTION for Leave to File First Amended Complaint ) filed byDepartment of the Air Force, Department of the Navy, Michael B. Donley, Robert M. Gates, Ray Mabus, United States Department of Defense. (Attachments: # 1 Exhibit Trail Transcript, Witt v. Dep't of the Air Force)(Parker, Ryan) (Filed on 4/13/2011)

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1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 MAJOR MARGARET WITT, ) ) Plaintiff-Appellee, ) ) vs. ) ) UNITED STATES DEPARTMENT OF THE ) AIR FORCE; ROBERT M. GATES, ) Secretary of Defense; MICHAEL B.) DONLEY, Secretary of the ) Department of Air Force; ) and COLONEL JANETTE L. ) MOORE-HARBERT, Commander, ) 446th Aeromedical Evacuation ) Squadron, McChord AFB, ) ) Defendants-Appellants. ) ) For the Plaintiff: COA# 10-36079 VOLUME 1 JAMES E. LOBSENZ Carney Badley Spellman 701 Fifth Avenue, Ste 3600 Seattle, Washington 98104-7010 SARAH DUNNE SHER KUNG American Civil Liberties Union of Washington 901 Fifth Avenue, Ste 630 Seattle, Washington 98164 21 22 25 September 13, 2010 APPEARANCES: 20 24 Tacoma, Washington TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT COURT JUDGE 19 23 Docket No. C06-5195RBL Court Reporter: Teri Hendrix Union Station Courthouse, Rm 3130 1717 Pacific Avenue Tacoma, Washington 98402 (253) 882-3831 2 1 APPEARANCES- CONTINUED 2 3 4 5 For the Defendants: PETER J. PHIPPS BRYAN R. DIEDERICH STEPHEN J. BUCKINGHAM U.S. Department of Justice Civil Division Federal Programs 20 Massachusetts Ave., NW P.O. Box 883 Washington, D.C. 20044 Also Present: LT. COLONEL TODI CARNES United States Air Force 1777 N. Kent St., Suite 11400 Rosslyn, VA 22209 Court Reporter: Teri Hendrix Union Station Courthouse, Rm 3130 1717 Pacific Avenue Tacoma, Washington 98402 (253) 882-3831 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceedings recorded by mechanical stenography, transcript produced by Reporter on computer. 3 1 T A B L E 2 5 6 C O N T E N T S VOLUME 1 September 13, 2010 3 4 O F OPENING STATEMENTS PAGE Ms. Dunne........................................8 Mr. Phipps......................................19 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TESTIMONY PAGE JAMES SCHAFFER Direct Examination By Ms. Dunne................ Cross-Examination By Mr. Buckingham............ Examination By the Court....................... JENNY KOPFSTEIN Direct Examination By Ms. Kung................. Cross-Examination By Mr. Diederich............. VINCENT ODA Direct Examination By Mr. Lobsenz.............. Cross-Examination By Mr. Diederich............. Examination By the Court....................... Redirect Examination By Mr. Lobsenz............ DARREN MANZELLA Direct Examination By Ms. Kung................. 35 86 98 103 144 146 169 172 173 174 EXHIBITS Exhibit Nos. 1 through 29, 30 to 33, 35 to 37, ... 40 to 53, 56 to 59, 63 to 64, 66 to 69, 73, 75 to 80, 87 to 89, 104, 106 to 110, 113 to 114, 117, 119 to 120, 122 to 123, 125, Exhibit Nos. A-1, A-4 through A-7, A-9 through ... A-11, A-13, A-14 through A-18, A-20 to A-34, and A-37 to A-40 Exhibit No. 142 .................................. Exhibit No. 72 ................................... 34 34 116 134 4 1 MONDAY, SEPTEMBER 13, 2010 - 9:30 A.M. 2 * 3 THE COURT: Please be seated. 4 THE CLERK: This is in Cause No. C06-5195RBL, Major 5 6 * * * * Good morning. Margaret Witt versus Department of the Air Force, et al. Counsel, please make their appearances. 7 MR. LOBSENZ: Good morning, Your Honor. 8 for Major Witt. 9 Kung and our legal assistant. 10 MR. PHIPPS: Jim Lobsenz With me at counsel table, Sarah Dunne, Sher Good morning. Peter Phipps from the 11 Department of Justice representing defendants. 12 Bryan Diederich and Mr. Steve Buckingham from the United 13 States Department of Justice. 14 is Lieutenant Colonel Todi Carnes from the U.S. Air Force. 15 16 THE COURT: I am joined by Also with me at counsel table All right. This matter comes on for trial. Before opening statements 17 I was told there was a matter of clarification from the 18 Court's earlier order regarding issues of back pay and 19 retirement credit. 20 record? 21 22 23 Do you want to make a statement for the MR. PHIPPS: Yes. I do thank you very much for the opportunity. There is a point we need to make, and we think we need to 24 make it before the trial commences because it is in some way 25 jurisdictional. It relates, as you said, to the Court's order 5 1 2 of last week; specifically, with respect to jurisdiction. Now, let me just back up and say, on Friday counsel for 3 both sides had a very productive conversation on this issue; 4 nonetheless I still feel the need to put this on the record 5 before commencement of trial. 6 On pages 1 and 2 of the Court's order, the Court indicated 7 that the parties agree that the Court has jurisdiction over 8 this case. 9 characterization. Respectfully, we take issue with that Again, this jurisdictional point is 10 complicated, but just to clarify that, whether the Court has 11 jurisdiction, depends on a statute under which plaintiff 12 proceeds. 13 And there's a question given plaintiff's statements in her 14 motion for summary judgment regarding the type of relief that 15 she seeks, whether or not she's proceeding under the 16 Administrative Procedures Act, the little Tucker Act, or 17 sometimes called the big Tucker Act. 18 Our belief is this: As the Court suggests in its order 19 that plaintiff could get relief from her claims in the Court 20 of Federal Claims, at any point, even after this trial has 21 concluded, then there's no jurisdiction over this case under 22 the APA, because plaintiff would have an adequate remedy 23 elsewhere. 24 25 It is true that -- and our position is that the plaintiff needs to elect her remedy. That's what we ask plaintiff to 6 1 do, just to clarify that, and to be certain. 2 and I think both parties are going to agree, we don't want a 3 jurisdictional cloud to hang over this case in any way. 4 Our concern is, The Court said in the pretrial conference it wanted an 5 upward trajectory for this case and we concur with that, but 6 just to be certain, each one of these -- the APA, the little 7 Tucker Act, and the big Tucker Act -- has different 8 consequences. 9 under the APA, waiver of sovereign immunity, and isn't seeking If the plaintiff says she's proceeding only 10 monetary relief or monetary damages, then the case is as it 11 was in the complaint and we don't see a jurisdictional concern 12 here. 13 Now, the second option, if plaintiff is proceeding under 14 the little Tucker Act seeking damages under $10,000, then we 15 can proceed here today, but little Tucker Act claims must go 16 directly to the federal circuit, not the Ninth Circuit, and 17 that has a dramatic effect on the governing law of this case, 18 is the government's position. 19 Lastly, if plaintiff attempts to make allegations or seek 20 relief that would put her under the jurisdiction of the big 21 Tucker Act, then our position is certainly the Court doesn't 22 have jurisdiction; that's classic federal Court of Claims 23 points. 24 25 So, essentially what we wanted to do was highlight that by way of clarification, make certain our position that if 7 1 plaintiff proceeds here, that's an election of remedies under 2 the APA and there wouldn't be the opportunity to go take a 3 second bite of the apple. 4 wanted to respond. 5 THE COURT: So it's a clarification and we Thank you, Mr. Phipps. 6 respond, Mr. Lobsenz? 7 MR. LOBSENZ: Do you want to If I could, briefly, I agree we had a 8 pretty productive conversation on Friday. I think he has 9 people that he has to seek authority from, back in Washington, 10 D.C., but as soon as I have confirmation, I can confirm that 11 we are withdrawing any claim for relief under the little 12 Tucker Act or any claim for monetary relief, and proceeding 13 under the APA. I just felt that we owed to it you to explain, 14 Mr. Phipps has explained 28 U.S.C. Section 1491(A)(2) would 15 indicate if we were to proceed under the little Tucker Act, 16 then anything that happened here -- the appeal would go to 17 federal circuit. 18 any such claim for monetary relief. 19 20 21 22 Neither side wants that, so I am withdrawing THE COURT: All right. Very well. Any other preliminary matters we need to take up at this time? MS. DUNNE: Yes, we have exhibits that have been 23 stipulated to, that we wanted to offer into the record. Would 24 you like us to do that now or would you prefer that after 25 opening statement? 198 1 Q. So on deployment, how were you treated by your fellow 2 service members in Kuwait? 3 A. 4 that the military is a very professional institution. Very professionally. 5 6 THE COURT: Okay, on that note we are going to break for the day. 7 THE WITNESS: 8 THE COURT: 9 I really can't stress that enough, morning. Yes, sir. We will be in recess until 9:30 tomorrow I have got a sentencing tomorrow morning, but it 10 shouldn't delay our start time. 11 You have conference rooms that you've occupied, so you are 12 set. 13 make use of the courtroom when we have our sentencing 14 tomorrow. 15 Clear the tables -- counsel tables, so that counsel can Anything we need to take up at this time before we recess? 16 MR. LOBSENZ: 17 MR. PHIPPS: 18 THE COURT: 19 20 21 22 Just keep your stuff here. No, Your Honor. No, Your Honor. Court will be in recess. (The Court recessed to Tuesday, September 14, 2010, at the hour of 9:00 a.m.) * * * * * C E R T I F I C A T E 23 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 24 /S/ Teri Hendrix __________ Teri Hendrix, Court Reporter 25 January 7, 2011 Date

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