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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MAJOR MARGARET WITT,

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Plaintiff-Appellee,
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vs.
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UNITED STATES DEPARTMENT OF THE )
AIR FORCE; ROBERT M. GATES,
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Secretary of Defense; MICHAEL B.)
DONLEY, Secretary of the
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Department of Air Force;
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and COLONEL JANETTE L.
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MOORE-HARBERT, Commander,
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446th Aeromedical Evacuation
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Squadron, McChord AFB,
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Defendants-Appellants. )
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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

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September 13, 2010

APPEARANCES:

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Tacoma, Washington

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE RONALD B. LEIGHTON
UNITED STATES DISTRICT COURT JUDGE

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Docket No. C06-5195RBL

Court Reporter:

Teri Hendrix
Union Station Courthouse, Rm 3130
1717 Pacific Avenue
Tacoma, Washington 98402
[phone]

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APPEARANCES- CONTINUED

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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
[phone]

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Proceedings recorded by mechanical stenography, transcript
produced by Reporter on computer.

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T A B L E

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C O N T E N T S

VOLUME 1
September 13, 2010

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O F

OPENING STATEMENTS

PAGE

Ms. Dunne........................................8
Mr. Phipps......................................19

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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.................

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86
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103
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146
169
172
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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 ...................................

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134

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MONDAY, SEPTEMBER 13, 2010 - 9:30 A.M.

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THE COURT:

Please be seated.

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THE CLERK:

This is in Cause No. C06-5195RBL, Major

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Good morning.

Margaret Witt versus Department of the Air Force, et al.
Counsel, please make their appearances.

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MR. LOBSENZ:

Good morning, Your Honor.

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for Major Witt.

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Kung and our legal assistant.

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MR. PHIPPS:

Jim Lobsenz

With me at counsel table, Sarah Dunne, Sher

Good morning.

Peter Phipps from the

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Department of Justice representing defendants.

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Bryan Diederich and Mr. Steve Buckingham from the United

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States Department of Justice.

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is Lieutenant Colonel Todi Carnes from the U.S. Air Force.

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THE COURT:

I am joined by

Also with me at counsel table

All right.

This matter comes on for trial.

Before opening statements

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I was told there was a matter of clarification from the

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Court's earlier order regarding issues of back pay and

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retirement credit.

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record?

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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

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make it before the trial commences because it is in some way

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jurisdictional.

It relates, as you said, to the Court's order

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of last week; specifically, with respect to jurisdiction.
Now, let me just back up and say, on Friday counsel for

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both sides had a very productive conversation on this issue;

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nonetheless I still feel the need to put this on the record

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before commencement of trial.

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On pages 1 and 2 of the Court's order, the Court indicated

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that the parties agree that the Court has jurisdiction over

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this case.

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characterization.

Respectfully, we take issue with that
Again, this jurisdictional point is

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complicated, but just to clarify that, whether the Court has

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jurisdiction, depends on a statute under which plaintiff

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proceeds.

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And there's a question given plaintiff's statements in her

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motion for summary judgment regarding the type of relief that

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she seeks, whether or not she's proceeding under the

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Administrative Procedures Act, the little Tucker Act, or

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sometimes called the big Tucker Act.

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Our belief is this:

As the Court suggests in its order

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that plaintiff could get relief from her claims in the Court

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of Federal Claims, at any point, even after this trial has

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concluded, then there's no jurisdiction over this case under

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the APA, because plaintiff would have an adequate remedy

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elsewhere.

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It is true that -- and our position is that the plaintiff
needs to elect her remedy.

That's what we ask plaintiff to

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do, just to clarify that, and to be certain.

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and I think both parties are going to agree, we don't want a

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jurisdictional cloud to hang over this case in any way.

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Our concern is,

The Court said in the pretrial conference it wanted an

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upward trajectory for this case and we concur with that, but

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just to be certain, each one of these -- the APA, the little

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Tucker Act, and the big Tucker Act -- has different

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consequences.

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under the APA, waiver of sovereign immunity, and isn't seeking

If the plaintiff says she's proceeding only

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monetary relief or monetary damages, then the case is as it

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was in the complaint and we don't see a jurisdictional concern

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here.

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Now, the second option, if plaintiff is proceeding under

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the little Tucker Act seeking damages under $10,000, then we

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can proceed here today, but little Tucker Act claims must go

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directly to the federal circuit, not the Ninth Circuit, and

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that has a dramatic effect on the governing law of this case,

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is the government's position.

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Lastly, if plaintiff attempts to make allegations or seek

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relief that would put her under the jurisdiction of the big

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Tucker Act, then our position is certainly the Court doesn't

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have jurisdiction; that's classic federal Court of Claims

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points.

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So, essentially what we wanted to do was highlight that by
way of clarification, make certain our position that if

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plaintiff proceeds here, that's an election of remedies under

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the APA and there wouldn't be the opportunity to go take a

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second bite of the apple.

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wanted to respond.

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THE COURT:

So it's a clarification and we

Thank you, Mr. Phipps.

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respond, Mr. Lobsenz?

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MR. LOBSENZ:

Do you want to

If I could, briefly, I agree we had a

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pretty productive conversation on Friday.

I think he has

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people that he has to seek authority from, back in Washington,

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D.C., but as soon as I have confirmation, I can confirm that

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we are withdrawing any claim for relief under the little

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Tucker Act or any claim for monetary relief, and proceeding

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under the APA. I just felt that we owed to it you to explain,

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Mr. Phipps has explained 28 U.S.C. Section 1491(A)(2) would

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indicate if we were to proceed under the little Tucker Act,

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then anything that happened here -- the appeal would go to

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federal circuit.

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any such claim for monetary relief.

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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

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stipulated to, that we wanted to offer into the record.

Would

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you like us to do that now or would you prefer that after

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opening statement?

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Q.

So on deployment, how were you treated by your fellow

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service members in Kuwait?

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A.

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that the military is a very professional institution.

Very professionally.

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THE COURT:

Okay, on that note we are going to break

for the day.

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THE WITNESS:

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THE COURT:

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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

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shouldn't delay our start time.

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You have conference rooms that you've occupied, so you are

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set.

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make use of the courtroom when we have our sentencing

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tomorrow.

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Clear the tables -- counsel tables, so that counsel can

Anything we need to take up at this time before we recess?

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MR. LOBSENZ:

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MR. PHIPPS:

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THE COURT:

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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.)
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C E R T I F I C A T E

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I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.

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/S/ Teri Hendrix __________
Teri Hendrix, Court Reporter

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January 7, 2011
Date