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

Filing 38

AMENDED COMPLAINT for Declaratory and Injunctive Relief for Violations of the United States Constitution and Administrative Procedures Act against Department of the Air Force, Department of the Navy, Michael B. Donley, Robert M. Gates, Ray Mabus, United States Department of Defense. Filed byJason D. Knight, Anthony J. Loverde, Michael D. Almy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Woodmansee, Mark) (Filed on 5/4/2011)

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M. ANDREW WOODMANSEE (CA SBN 201780)
[e-mail]
STEPHANIE L. FONG (CA SBN 240836)
[e-mail]
KIMBERLY R. GOSLING (CA SBN 247803)
[e-mail]
JESSICA A. ROBERTS (CA SBN 265570)
[e-mail]
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, California 92130-2040
Telephone: [phone]
Facsimile: 858.720.5125
AARON D. TAX (DC SBN 501597)
[e-mail]
JOHN M. GOODMAN (DC SBN 383147)
[e-mail]
SERVICEMEMBERS LEGAL DEFENSE NETWORK
P. O. Box 65301
Washington, DC 20035-5301
Telephone: [phone]
Facsimile: 202.797.1635
Attorneys for Plaintiffs
MICHAEL D. ALMY, ANOTHNY J. LOVERDE,
AND JASON D. KNIGHT

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MICHAEL D. ALMY, ANTHONY J.
LOVERDE, and JASON D. KNIGHT,
Plaintiffs,

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v.
UNITED STATES DEPARTMENT OF
DEFENSE; ROBERT M. GATES, Secretary of
Defense; DEPARTMENT OF THE AIR FORCE;
MICHAEL B. DONLEY, Secretary, Department
of the Air Force; DEPARTMENT OF THE
NAVY; and RAY MABUS, Secretary,
Department of the Navy,
Defendants.

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Case No.

3:10-cv-5627 (RS)

FIRST AMENDED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF FOR
VIOLATIONS OF THE UNITED
STATES CONSTITUTION AND
ADMINISTRATIVE
PROCEDURES ACT

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NATURE OF THE ACTION
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1.

This is a civil action to reinstate plaintiffs Michael D. Almy and Anthony J.

Loverde into active duty in the United States Air Force, and to reinstate plaintiff Jason D. Knight
into active duty in the United States Navy, following the plaintiffs’ unlawful discharges from
their respective branches of the military by defendants on account of the federal law colloquially
known as “Don’t Ask, Don’t Tell,” concerning gay, lesbian, and bisexual armed forces service
members (“DADT”).
2.

This action is also brought to declare unconstitutional the discharges of plaintiffs

Almy, Loverde, and Knight under DADT, and to declare the DADT statute, 10 U.S.C. § 654, and
the regulations, policies, and guidance that implement it, unconstitutional on their face.

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THE PARTIES
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3.

Plaintiff Michael D. Almy is a citizen of the United States and resident in the

District of Columbia. He served for thirteen years in the United States Air Force (“Air Force”),
including four deployments to the Middle East. He is a highly trained communications officer.
During his thirteen-year Air Force career, former Major Almy received numerous military awards
and decorations. In 2006, he was discharged from the Air Force under DADT.
4.

Plaintiff Anthony J. Loverde is a citizen of the United States and resident in the

State of California. He served for seven years in the Air Force. He is a trained C-130
Loadmaster and Precision Measurement Equipment Laboratory Technician. During his sevenyear Air Force career, former Staff Sergeant Loverde received numerous military awards and
decorations. In 2008, he was discharged from the Air Force under DADT.
5.

Plaintiff Jason D. Knight is a citizen of the United States and resident in the State

of California. He served for a total of five years in the United States Navy (“Navy”). He is a
trained Cryptological Technician Interpretive Linguist. During his five-year Navy career, former
Petty Officer Second Class Knight received numerous military awards and decorations. In 2005,
he was discharged from the Navy under DADT. Mr. Knight was recalled to active duty in 2006
but was discharged again in 2007 under DADT.

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6.

Defendant United States Department of Defense is an executive department of the

United States.
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Defendant Robert M. Gates is the Secretary of the United States Department of

Defense, sued here in his official capacity.
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Defendant Department of the Air Force is a military department of the United

States within which Mr. Almy and Mr. Loverde were formerly employed.
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Defendant Michael B. Donley is the Secretary of the Department of the Air Force,

sued here in his official capacity.
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Defendants United States Department of Defense, Secretary Gates, Department of

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the Air Force, and Secretary Donley are hereinafter referred to collectively as the “Air Force

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Defendants.”

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Defendant Department of the Navy is a military department of the United States

within which Mr. Knight was formerly employed.
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Defendant Ray Mabus is the Secretary of the Department of the Navy, sued here in

his official capacity.
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Defendants United States Department of Defense, Secretary Gates, Department of

the Navy, and Secretary Mabus are hereinafter referred to collectively as the “Navy Defendants.”
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Judgment is sought against each defendant as well as his agents, assistants,

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successors, employees, attorneys, and all persons acting in concert or cooperation with any of

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them or at the direction or under the control of any of them.

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JURISDICTION AND VENUE
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This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

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1331 because the defendants are acting on behalf of the United States and this action arises under

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the United States Constitution (“Constitution”), including at least its First and Fifth Amendments;

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and federal laws, regulations, and policies, including the Administrative Procedure Act, 5 U.S.C.

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§ 702; the federal statute governing DADT, 10 U.S.C. § 654; and federal regulations, policies,

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and guidance issued under 10 U.S.C. § 654, including but not limited to Air Force Instruction

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(“AFI”) 36-3206, entitled Administrative Discharge Procedures for Commissioned Officers, AFI
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36-3208, entitled Administrative Separation of Airmen, and Navy MILPERSMAN 1910-148,

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entitled Separation by Reason of Homosexual Conduct.

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Venue is proper in this judicial district pursuant to at least 28 U.S.C. § 1391(e)

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because Mr. Knight resides in this judicial district, Mr. Loverde maintains his permanent

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residence and is registered to vote in this judicial district, and no real property is involved in the

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action.

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FACTS

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PLAINTIFF ALMY

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Mr. Almy comes from a family with a long history of military service. His father

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is a West Point graduate who taught chemistry at the Air Force Academy, flew helicopters in

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Vietnam, and ultimately retired from the Air Force as a senior officer. One of Mr. Almy’s uncles

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retired as a Master Gunnery Sergeant from the Marine Corps, with service in World War II,

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Korea and Vietnam. Another uncle served in the Army in Korea.

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Mr. Almy joined Air Force ROTC in 1988 and was awarded a scholarship. He

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earned his jump wings following Army Airborne Training at Fort Benning, Georgia, in 1991. In

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1992, he graduated from ROTC in the top ten percent of all graduates nationwide.

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In 1993, Mr. Almy went on active duty in the Air Force. When Mr. Almy first

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entered active duty, he attended Basic Communications-Electronics Officer Training at Keesler

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Air Force Base (“AFB”) in Mississippi. Following completion of this course, he was stationed at

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the Air Intelligence Agency at Kelly AFB in Texas. After nine months of service at Kelly AFB,

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Mr. Almy was accepted for and attended navigator training at Randolph AFB in 1994.

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In July 1995, he was assigned to Scott AFB in Illinois. He initially worked in

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systems support for the J2 Directorate of United States Transportation Command. Following this,

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he worked at the help desk for all Air Mobility Command and Control Systems.

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In 1998, Mr. Almy was stationed at the Third Combat Communications Group at

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Tinker AFB in Oklahoma. While stationed in Oklahoma, he was named officer of the year for his

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unit of nearly 1,000 people. In September 1998, he deployed to Eskan Village, Saudi Arabia, as

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the senior communicator from his unit, with approximately 60 personnel in his squadron. There
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the squadron supported all the base-level communications requirements during Operation Desert

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Fox.

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In September 1999, Mr. Almy again deployed to Saudi Arabia. He served as the

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executive officer for the 363rd Expeditionary Operations Group at Prince Sultan Air Base, where

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the group was deployed in support of Operation Southern Watch.

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to attend Professional Military Education at the Quantico Marine Corps Base in Virginia.

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In July 2001, Mr. Almy was one of six officers selected from the entire Air Force

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In June 2002, Mr. Almy was stationed at Ramstein Air Base, Germany, in the

Communications Directorate of Headquarters for the U.S. Air Force Europe. There he worked on

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tactical communications and airborne communications projects. In December 2002, he again

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deployed to Prince Sultan Air Base in support of the invasion of Iraq at the beginning of

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Operation Iraqi Freedom. He was directly responsible for setting up new communications bases

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throughout the theaters in Jordan, Saudi Arabia, and Iraq.

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After returning from Saudi Arabia, Mr. Almy was promoted to the rank of Major

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and accepted a position as the Chief of Maintenance at the 606th Air Control Squadron (“ACS”)

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at Spangdahlem Air Base in Germany. He reported to Spangdahlem Air Base in September 2003,

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where he was in charge of a directorate of 180 troops.

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In September 2004, Mr. Almy’s unit deployed to three locations in Iraq in support

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of Operation Iraqi Freedom. This marked his fourth deployment to the Middle East during his Air

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Force career. During this deployment, his unit controlled the airspace over two-thirds of Iraq, and

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his troops maintained the equipment necessary for that mission. This included air support for the

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liberation of Fallujah, Iraq. Mr. Almy’s base came under daily mortar attacks, one of which

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struck one of his Airmen and also caused significant damage to their equipment. Towards the end

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of this deployment to Iraq, Mr. Almy received the Leo Marquez Field Grade Officer of the Year

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Award, which recognized Mr. Almy as one of the top officers in his career field for the entire Air

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Force.

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During his service in the Air Force, Mr. Almy received numerous other military

awards and decorations. These accolades include, but are not limited to, the Joint Service
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Commendation Medal, three Air Force Commendation Medals, the Air Force Achievement

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Medal, the Air Force Outstanding Unit Award, the Air Force Organizational Excellence Award,

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the Combat Readiness Medal, the National Defense Service Medal, the Armed Forces

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Expeditionary Medal, the Iraq Campaign Medal, the Global War on Terrorism Expeditionary

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Medal, the Global War on Terrorism Service Medal, the Humanitarian Service Medal, the Air

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Force Overseas Long Tour Ribbon, the Air Force Longevity Service Award, the Small Arms

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Expert Marksmanship Ribbon, the Air Force Training Ribbon, the Company Grade Officer of the

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Year award, the Senior Communications and Information Badge, and a recognition as

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Distinguished Air Force ROTC Graduate.

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During Mr. Almy’s service in the Air Force, his military superiors and evaluators

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provided uniformly high assessments of him in his annual performance evaluations and

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promotion recommendations. For example, when Mr. Almy served as Maintenance Operations

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Officer in the 606th ACS at Spangdahlem Air Base, a supervisor commented about Mr. Almy:

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“Outstanding leader of my largest directorate; immediate impact on morale/mission—

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maintenance never stronger . . . Complete leader . . . Superb leader ready for command; simply

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incredible results in every endeavor.” Similarly, another supervisor commented: “Deployed

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superstar; engineered unprecedented mission results during local deployments in

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Germany/Holland[.] Top-shelf comm[unications] officer and outstanding leader; impact player

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ready for command.”

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During Mr. Almy’s deployment in Iraq that began in 2004, the Air Force

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prohibited Airmen from using private email accounts. Airmen in Iraq were forced to use

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government-provided computers and email accounts for personal correspondence. Specifically,

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AFI 33-119 authorized service members to use their government email accounts for personal

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correspondence for “morale, health, and welfare purposes.” Mr. Almy therefore used his Air

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Force email account for personal emails. Shortly after Mr. Almy left Iraq in January 2005, during

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a purportedly “routine” search of his computer files, another member of the Air Force found

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personal emails in a separate folder labeled “Friends,” including at least one email from Mr.

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Almy to another man discussing same-sex conduct. These emails were brought to the attention of
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Mr. Almy’s commander, who confronted him with the emails, read him the DADT law, and

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pressured him to acknowledge he is gay.

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Mr. Almy subsequently was relieved of his duties, his security clearance—

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Sensitive Compartmented Information, one of the highest level security clearances available in

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the military—was suspended, and part of his pay was terminated. He received notice that

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administrative board proceedings were being convened to determine whether to recommend a

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discharge under DADT.

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31.

During the discharge process, many of Mr. Almy’s colleagues, including his

superiors as well as individuals who had served under his command, wrote letters in resounding

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support of his retention. For instance, a retired Army Colonel wrote: “My view is that Major

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Almy has been, and will continue to be an excellent officer.” The Lieutenant Colonel who was

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Mr. Almy’s squadron commander during the discharge process also wrote: “I am convinced the

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Air Force, its personnel, mission and tradition remains unchanged and unharmed despite his

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alleged [violations of DADT].”

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32.

Other character reference letters included the following comments from a First

Lieutenant who had been under Mr. Almy’s supervision in the 606th ACS:
As a graduate of the Virginia Military Institute I have seen plenty of
examples of good and bad leadership. Based on my personal and
professional interaction with Maj Almy I can say that he is truly
one of the best. . . . One would be hard pressed to find someone in
the directorate that did not respect him. His troops loved working
for him and were willing to do anything for him at a moment’s
notice. He demands the best out of his people and always gets it. If
given the opportunity to work for Maj Almy again, my answer
would be a resounding YES! If removed, the Air Force would be
losing a great man and a great leader. When he was relieved of his
duties as Chief of Maintenance the 606 ACS fell apart. It became
painfully evident how important Maj Almy was not only to the
mission but to his troops.

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Another First Lieutenant whom Mr. Almy supervised in the 606th ACS wrote that Mr. Almy

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“was one of the most respected leaders in the squadron thanks to his no nonsense approach to

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mission accomplishment and dedication to the squadron in both directions of the chain of

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command. . . . I can say without any reservation that Maj. Almy was the best supervisor I have

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ever had. . . . It would be an absolute travesty to lose such an outstanding officer and superior

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leader.”

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While his discharge proceedings were pending, Mr. Almy remained at

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Spangdahlem Air Base performing ad hoc duties. Approximately a year after Mr. Almy was

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relieved of his command duties, his Wing Commander formally recommended to the Air Force

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promotion board that Mr. Almy be promoted to Lieutenant Colonel “below promotion zone”—in

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other words, ahead of his peers—even though the Air Force was actively pursuing Mr. Almy’s

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discharge.

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Despite his long and distinguished service record and the recommendations of

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numerous colleagues in the armed forces, the Air Force ultimately discharged Mr. Almy under

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DADT, for making a statement about his sexual orientation in private email correspondence while

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he was deployed in Iraq. He received an Honorable Discharge on or about July 21, 2006. A true

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and correct copy of the first page of Mr. Almy’s discharge order is attached to this complaint as

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Exhibit 1.

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35.

Mr. Almy was discharged from the Air Force against his will. Had he not been

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discharged under DADT, he would have remained on active duty in the Air Force to this day.

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Mr. Almy does not seek lost wages or other benefits that directly flow from reinstatement in this

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lawsuit. He simply wishes to be reinstated into active duty in the Air Force so he can once again

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serve his country and fulfill the commitment he made to the Air Force.

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PLAINTIFF LOVERDE
36.

Since childhood, Mr. Loverde has had an interest in serving in the U.S. military.

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One of his grandfathers served in the Coast Guard in World War II, another grandfather served in

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the Army during the Korean conflict and received a Purple Heart, and one of his uncles served in

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the Marine Corps in Vietnam. Mr. Loverde was the first member of his family in his generation

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to serve in the armed forces. He was followed by his brother and three of his cousins. Mr.

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Loverde’s brother served in the Army as an Infantryman and currently serves in the Air Force

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Reserves as a Security Forces Non-Commissioned Officer.

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37.

Mr. Loverde enlisted in the Air Force in January 2001. He served from 2001 to

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2004 in the 86th Maintenance Squadron. During this time, he was stationed in Germany and

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calibrated weapons systems for the squadron as a Precision Measurement Equipment Laboratory

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Technician. In 2005, Mr. Loverde was reassigned to Edwards Air Force Base, California.

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Mr. Loverde reenlisted in 2006, opting to retrain as a C-130 Loadmaster. In this

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new role, Mr. Loverde joined the 37th Airlift Squadron at Ramstein Air Force Base in Germany.

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In 2007, Mr. Loverde deployed with his squadron as part of the troop “surge” in support of

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Operation Iraqi Freedom.

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During his service in the Air Force, Mr. Loverde received numerous military

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awards and decorations. These accolades include the Air Medal, the Air Force Commendation

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Medal, the Air Force Outstanding Unit Award, the Air Force Good Conduct Medal, the National

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Defense Service Medal, the Global War on Terrorism Service Medal, the Air Force Overseas

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Ribbon, the Air Force Expeditionary Service Ribbon, the Air Force Longevity Service Ribbon,

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the Air Force NCO PME Graduate Ribbon, the Small Arms Expert Marksmanship Ribbon, and

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the Air Force Training Ribbon.

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40.

During Mr. Loverde’s service in the Air Force, his military superiors and

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evaluators provided uniformly high assessments of him in his annual performance evaluations

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and promotion recommendations. For example, one former supervisor made the following

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comment about Mr. Loverde:

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Unmatched support on channel [mission] . . . key to mission
success . . . superior knowledge/abilities guaranteed readiness . . .
pressing ahead of peers academically . . . agile in body & mind[.]
Earned Distinguished Graduate award from Basic Loadmaster
course . . . Hard charger . . . Airdropped 87 Army & Italian special
forces; critical to joint training exercise—fostered combat
effectiveness . . . Sincere humanitarian; visited injured soldiers at
LRMC w/Red Cross pet program—lifted hopes/sped recovery[.]
Excels in all facets of his duties, consistently improving knowledge
level and loadmaster skills—promote now.

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41.

During Mr. Loverde’s deployment to Ali Al Salem Air Force Base in 2007, it

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became clear to Mr. Loverde that he could no longer continue pretending to be someone he was

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not. Other service members talked about loved ones back home and leaned on each other for
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support, but because Mr. Loverde is gay, he found himself avoiding interaction with his fellow

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troops so as not to deceive them.

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42.

Upon his return from deployment in April 2008, Mr. Loverde emailed two of his

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superior officers to let them know that he is gay. Mr. Loverde was mindful of what the Air Force

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has described as “Air Force Core Values,” which are “Integrity first, Service before self, and

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Excellence in all we do.” He told his superior officers that although he would like to continue to

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serve, he could not do so if it also meant continuing to conceal his sexual orientation.

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43.

On or about June 9, 2008, Mr. Loverde received a memorandum informing him

that he was being recommended for discharge under DADT. On or about June 19, 2008, he
received a “Discharge Legal Review” memorandum again recommending discharge.
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During the discharge process, many of Mr. Loverde’s co-workers and superiors

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wrote in support of his retention. Consistent with his high performance reviews throughout his

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career, these supporters noted that Mr. Loverde “always produced high quality work” and could

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be counted on “to get the job done right.” Based on personal experience working with Mr.

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Loverde, one former superior officer wrote: “I fully recommend that you consider retaining him

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in the Air Force. He has the potential to go very far in whatever endeavor he pursues . . . I hope

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that includes continued service to our nation.” Another former superior officer wrote: “If I ever

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had the opportunity to build my ‘dream team’ for work, I would take an entire crew of SSgt

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Loverdes over most other workers I have encountered.”

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45.

Despite his numerous service awards, his consistently excellent performance

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reviews, and the recommendations of others, at the conclusion of Air Force administrative

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separation proceedings, Mr. Loverde was discharged under DADT for making a statement that he

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is gay. He received an Honorable Discharge on or about July 13, 2008. A true and correct copy

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of Mr. Loverde’s discharge order is attached to this complaint as Exhibit 2.

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46.

Ironically, in August 2008, Mr. Loverde was awarded the Air Medal for his

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“superior ability in the presence of perilous conditions” during his deployment in support of

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Operation Iraqi Freedom—the deployment that ultimately brought Mr. Loverde to the decision to

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come out as gay to the Air Force. The Air Medal Citation noted that “the professional ability and
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outstanding aerial accomplishments of Sergeant Loverde reflect great credit upon himself and the

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United States Air Force.”

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Mr. Loverde was discharged from the Air Force against his will. Had he not been

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discharged under DADT, he would have remained on active duty in the Air Force to this day.

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Mr. Loverde does not seek lost wages or other benefits that directly flow from reinstatement in

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this lawsuit. He simply wishes to be reinstated into active duty in the Air Force so he can once

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again serve his country and fulfill the commitment he made to the Air Force.

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PLAINTIFF KNIGHT
48.

Like thousands of Americans before him, Mr. Knight joined the military both to

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serve his country and to be able to afford college under the G.I. Bill. He enlisted in the Navy on

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or about April 4, 2001. He served from 2001 to 2003 in the Navy Ceremonial Guard in

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Washington, D.C. During his service in the Ceremonial Guard, he represented the United States

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at official White House ceremonies and during state and military funerals at Arlington National

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Cemetery and the Tomb of the Unknown Soldier. He was present at more than 1,500 military

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funerals as part of the firing party rendering the 21-gun salute.

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49.

In July 2003, following his service in the Ceremonial Guard, Mr. Knight began

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training as a Hebrew Linguist—formally, a Cryptological Technician Interpretive (CTI),

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Linguist—at the Defense Language Institute in Monterey, California. After his graduation in

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December 2004, he reported for duty at Fort Gordon, Georgia, where he attained the rank of Petty

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Officer Third Class.

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50.

In 2004, Mr. Knight filed paperwork annulling his marriage because he realized

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that he is gay. In keeping with the Navy’s core values of honesty and integrity, he provided the

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Navy with copies of his annulment and with a written statement to his commander, in which Mr.

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Knight revealed his sexual orientation. The Navy then began administrative discharge

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proceedings under DADT.

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51.

Ultimately, at the conclusion of Navy administrative proceedings, Mr. Knight was

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discharged under DADT for making a statement that he is gay. He received an Honorable

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Discharge on or about April 3, 2005. Although discharge under DADT is ordinarily accompanied
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by a lifetime ban on future military service, indicated by an “RE-4” negative reentry code, Mr.

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Knight’s discharge papers made him eligible for active duty recall due to a bureaucratic error. A

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true and correct copy of Mr. Knight’s April 3, 2005 discharge order is attached to this complaint

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as Exhibit 3.

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52.

On or about July 24, 2006, Mr. Knight received a letter from the Navy recalling

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him to active duty service. On or about September 11, 2006, he was deployed to Kuwait in

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support of Operation Iraqi Freedom for a yearlong tour of duty with the Navy Customs Battalion

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Romeo. During this entire tour of duty, he served as an openly gay man out to his immediate

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chain of command and to most of the rest of his command. He attained the rank of Petty Officer

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Second Class during this tour of duty.
53.

During his service in the Navy, Mr. Knight received numerous military awards and

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decorations. These accolades include the Navy and Marine Corps Achievement Medal, the Navy

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Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Service

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Medal, and the Navy Pistol Marksmanship Medal. Mr. Knight’s accolades also include the

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following awards and decorations that he received during his service as an openly gay man: a

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second Navy and Marine Corps Achievement Medal, the Army Achievement Medal, the Global

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War on Terrorism Expeditionary Medal, the Sea Service Deployment Ribbon, the Navy and

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Marine Corp Overseas Service Ribbon, and the Armed Forces Reserve Medal.

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following recognition:

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CTI2 Knight consistently performed his duties in an exemplary and
professional manner. He excelled in the coordination, logistics and
transportation requirements for over 100 personnel for Customs
Romeo and FWD Echo [Morale, Welfare and Recreation] trips to
Kuwait City. His attention to detail directly contributed to the
extraordinary success of the mission. CTI2 Knight’s exceptional
professionalism, unrelenting perseverance, and loyal devotion to
duty reflected credit upon him and were in keeping with the highest
traditions of the United States Naval Service.

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Mr. Knight’s second Navy and Marine Corps Achievement Medal contained the

55.

During Mr. Knight’s service in the Navy, his military superiors and evaluators

provided consistently positive assessments of him in his annual performance evaluations and

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promotion recommendations, including those performance evaluations and promotion

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recommendations issued during the time when Mr. Knight was serving openly.

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56.

In March 2007, after General Peter Pace, Chairman of the Joint Chiefs of Staff,

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publicly expressed his personal views of homosexuality as “immoral,” Mr. Knight wrote a letter

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to the editor of the Stars & Stripes, a military newspaper, responding to General Pace’s

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comments. In May 2007, Mr. Knight was the subject of an article in the Stars & Stripes regarding

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his service in Kuwait while openly gay. Shortly thereafter, the Navy began administrative

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discharge proceedings under DADT against Mr. Knight for the second time.

9

57.

At the conclusion of administrative separation proceedings, Mr. Knight was once

10

again discharged by the Navy under DADT for making a statement that he is gay. He received an

11

Honorable Discharge on or about May 18, 2007. True and correct copies of Mr. Knight’s May

12

2007 discharge orders are attached to this complaint as Exhibit 4 and Exhibit 5, respectively.

13

58.

Mr. Knight was discharged from the Navy twice against his will. Had he not been

14

discharged either time under DADT, he would have remained on active duty in the Navy to this

15

day. Mr. Knight does not seek lost wages or other benefits that directly flow from reinstatement

16

in this lawsuit. He simply wishes to be reinstated into active duty in the Navy so he can once

17

again serve his country and fulfill the commitment he made to the Navy.

18

CLAIMS FOR RELIEF

19

CLAIM ONE
(DENIAL OF SUBSTANTIVE DUE PROCESS—AS-APPLIED—
BY PLAINTIFF ALMY AGAINST THE AIR FORCE DEFENDANTS)

20
21
22
23

59.

Mr. Almy incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
60.

In Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court

24

recognized a constitutional substantive due process right to engage in private, consensual sexual

25

conduct with any adult, including one of the same gender, without government intervention.

26
27

61.

In light of Lawrence, to discharge a service member for allegedly violating DADT,

the military bears the burden of proving that the service member’s discharge significantly

28
FIRST AMENDED COMPLAINT
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1

furthers, and is necessary to further, the government’s interests in proper military discipline, unit

2

cohesion, morale, and good order.

3

62.

At no point prior to the discharge of Mr. Almy did the Air Force meet, or even

4

attempt to meet, its burden of proving that the discharge of Mr. Almy under DADT significantly

5

furthered, and was necessary to further, the government’s interests in proper military discipline,

6

unit cohesion, morale, and good order.

7

63.

In fact, the Air Force ignored evidence that the discharge of Mr. Almy would

8

actually harm the government’s interests in proper military discipline, unit cohesion, morale, and

9

good order.

10

64.

Due to the Air Force’s failure to meet its burden as described above, the discharge

11

proceedings and subsequent discharge of Mr. Almy violated his substantive due process right

12

under the Due Process Clause of the Fifth Amendment to the Constitution, as recognized in

13

Lawrence.

14

65.

To remedy the unconstitutional discharge of Mr. Almy pursuant to 10 U.S.C. §

15

654, and the regulations, policies, and guidance that implement it, including but not limited to

16

AFI 36-3206, the Air Force must reinstate Mr. Almy immediately into active duty and give him

17

credit towards retirement for the time he would have served in the Air Force had he not been

18

unlawfully discharged under DADT.

19
20
21
22
23

CLAIM TWO
(DENIAL OF SUBSTANTIVE DUE PROCESS—AS-APPLIED—
BY PLAINTIFF LOVERDE AGAINST THE AIR FORCE DEFENDANTS)
66.

Mr. Loverde incorporates by reference and re-alleges each preceding paragraph as

if fully set forth herein.
67.

At no point prior to the discharge of Mr. Loverde did the Air Force meet, or even

24

attempt to meet, its burden of proving that the discharge of Mr. Loverde under DADT

25

significantly furthered, and was necessary to further, the government’s interests in proper military

26

discipline, unit cohesion, morale, and good order.

27
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FIRST AMENDED COMPLAINT
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1

68.

In fact, the Air Force ignored evidence that the discharge of Mr. Loverde would

2

actually harm the government’s interests in proper military discipline, unit cohesion, morale, and

3

good order.

4

69.

Due to the Air Force’s failure to meet its burden as described above, the discharge

5

proceedings and subsequent discharge of Mr. Loverde violated his substantive due process right

6

under the Due Process Clause of the Fifth Amendment to the Constitution, as recognized in

7

Lawrence.

8

70.

To remedy the unconstitutional discharge of Mr. Loverde pursuant to 10 U.S.C. §

9

654, and the regulations, policies, and guidance that implement it, including but not limited to

10

AFI 36-3208, the Air Force must reinstate Mr. Loverde immediately into active duty and give

11

him credit towards retirement for the time he would have served in the Air Force had he not been

12

unlawfully discharged under DADT.

13

CLAIM THREE
(DENIAL OF SUBSTANTIVE DUE PROCESS—AS-APPLIED—
BY PLAINTIFF KNIGHT AGAINST THE NAVY DEFENDANTS)

14
15
16
17

71.

Mr. Knight incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
72.

At no point prior to either discharge of Mr. Knight did the Navy meet, or even

18

attempt to meet, its burden of proving that the discharges of Mr. Knight under DADT

19

significantly furthered, and was necessary to further, the government’s interests in proper military

20

discipline, unit cohesion, morale, and good order.

21

73.

In fact, the Navy ignored evidence that the discharges of Mr. Knight would

22

actually harm the government’s interests in proper military discipline, unit cohesion, morale, and

23

good order.

24

74.

Due to the Navy’s failure to meet its burden as described above, the discharge

25

proceedings and subsequent discharges of Mr. Knight violated his substantive due process right

26

under the Due Process Clause of the Fifth Amendment to the United States Constitution, as

27

recognized in Lawrence.

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FIRST AMENDED COMPLAINT
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1

75.

To remedy the unconstitutional discharges of Mr. Knight pursuant to DADT, 10

2

U.S.C. § 654, and the regulations, policies, and guidance that implement it, including but not

3

limited to MILPERSMAN 1910-148, the Navy must reinstate Mr. Knight immediately into active

4

duty and give him credit towards retirement for the time he would have served in the Navy had he

5

not been unlawfully discharged under DADT in 2005 and 2007.

6

CLAIM FOUR
(DENIAL OF SUBSTANTIVE DUE PROCESS—FACIAL—
BY ALL PLAINTIFFS AGAINST ALL DEFENDANTS)

7
8
9
10

76.

Plaintiffs incorporate by reference and re-allege each preceding paragraph as if

fully set forth herein.
77.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

11

subject service members to discharge from the armed forces for exercising their Fifth Amendment

12

substantive due process right to engage in private, consensual sexual conduct with an adult of the

13

same gender, as recognized in Lawrence.

14

78.

Accordingly, 10 U.S.C. § 654 is unconstitutional on its face, as are the regulations,

15

policies, and guidance that implement it, including but not limited to AFI 36-3206, AFI 36-3208,

16

and MILPERSMAN 1910-148.

17

CLAIM FIVE
(DENIAL OF EQUAL PROTECTION—
BY PLAINTIFF ALMY AGAINST THE AIR FORCE DEFENDANTS)

18
19
20
21

79.

Mr. Almy incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
80.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

22

intentionally create an impermissible distinction between the status, speech, and conduct of

23

heterosexual service members, on the one hand, and the status, speech, and conduct of gay and

24

lesbian service members, on the other hand, by intentionally subjecting gay and lesbian service

25

members to different and punitive treatment.

26

81.

This facially disparate treatment on the basis of sexual orientation and gender

27

violates Mr. Almy’s rights under the Equal Protection Clause of the Fifth Amendment to the

28

Constitution.
FIRST AMENDED COMPLAINT
sd-550244

15

1
2
3
4
5

CLAIM SIX
(DENIAL OF EQUAL PROTECTION—
BY PLAINTIFF LOVERDE AGAINST THE AIR FORCE DEFENDANTS)
82.

Mr. Loverde incorporates by reference and re-alleges each preceding paragraph as

if fully set forth herein.
83.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

6

intentionally create an impermissible distinction between the status, speech, and conduct of

7

heterosexual service members, on the one hand, and the status, speech, and conduct of gay and

8

lesbian service members, on the other hand, by intentionally subjecting gay and lesbian service

9

members to different and punitive treatment.

10

84.

This facially disparate treatment on the basis of sexual orientation and gender

11

violates Mr. Loverde’s rights under the Equal Protection Clause of the Fifth Amendment to the

12

Constitution.

13

CLAIM SEVEN
(DENIAL OF EQUAL PROTECTION—
BY PLAINTIFF KNIGHT AGAINST THE NAVY DEFENDANTS)

14
15
16
17

85.

Mr. Knight incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
86.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

18

intentionally create an impermissible distinction between the status, speech, and conduct of

19

heterosexual service members, on the one hand, and the status, speech, and conduct of gay and

20

lesbian service members, on the other hand, by intentionally subjecting gay and lesbian service

21

members to different and punitive treatment.

22

87.

This facially disparate treatment on the basis of sexual orientation and gender

23

violates Mr. Knight’s rights under the Equal Protection Clause of the Fifth Amendment to the

24

Constitution.

25

CLAIM EIGHT
(VIOLATION OF THE FIRST AMENDMENT—
BY PLAINTIFF ALMY AGAINST THE AIR FORCE DEFENDANTS)

26
27
28

88.

Mr. Almy incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
FIRST AMENDED COMPLAINT
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16

1

89.

Mr. Almy has the rights to freedom of speech, to freedom against compelled

2

speech, to receive information, and to expressive association, all of which are guaranteed by the

3

First Amendment to the Constitution.

4

90.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

5

impermissibly restrict, punish, chill and burden all service members’ First Amendment rights on

6

the basis of content and viewpoint “24 hours each day . . . on base or off base . . . on duty or off

7

duty.” 10 U.S.C. § 654(a)(9)-(10).

8

91.

The discharge of Mr. Almy directly resulted from the content of his speech—

9

namely, statements he made that revealed his sexual orientation. Based entirely on those

10

statements, the Air Force separated him from the Air Force under 10 U.S.C. § 654 and the

11

regulations, policies, and guidance that implement it.

12
13
14
15
16
17
18

92.

The discharge of Mr. Almy under 10 U.S.C. § 654 and the regulations, policies,

and guidance that implement it therefore violated his First Amendment rights.
CLAIM NINE
(VIOLATION OF THE FIRST AMENDMENT—
BY PLAINTIFF LOVERDE AGAINST THE AIR FORCE DEFENDANTS)
93.

Mr. Loverde incorporates by reference and re-alleges each preceding paragraph as

if fully set forth herein.
94.

Mr. Loverde has the rights to freedom of speech, to freedom against compelled

19

speech, to receive information, and to expressive association, all of which are guaranteed by the

20

First Amendment to the Constitution.

21

95.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

22

impermissibly restrict, punish, chill and burden all service members’ First Amendment rights on

23

the basis of content and viewpoint “24 hours each day . . . on base or off base . . . on duty or off

24

duty.” 10 U.S.C. § 654(a)(9)-(10).

25

96.

The discharge of Mr. Loverde directly resulted from the content of his speech—

26

namely, statements he made that revealed his sexual orientation. Based entirely on those

27

statements, the Air Force separated him from the Air Force under 10 U.S.C. § 654 and the

28

regulations, policies, and guidance that implement it.
FIRST AMENDED COMPLAINT
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17

1
2

97.

The discharge of Mr. Loverde under 10 U.S.C. § 654 and the regulations, policies,

and guidance that implement it therefore violated his First Amendment rights.

3

CLAIM TEN
(VIOLATION OF THE FIRST AMENDMENT—
BY PLAINTIFF KNIGHT AGAINST THE NAVY DEFENDANTS)

4
5
6
7

98.

Mr. Knight incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
99.

Mr. Knight has the rights to freedom of speech, to freedom against compelled

8

speech, to receive information, and to expressive association, all of which are guaranteed by the

9

First Amendment to the Constitution.

10

100.

10 U.S.C. § 654 and the regulations, policies, and guidance that implement it

11

impermissibly restrict, punish, chill and burden all service members’ First Amendment rights on

12

the basis of content and viewpoint “24 hours each day . . . on base or off base . . . on duty or off

13

duty.” 10 U.S.C. § 654(a)(9)-(10).

14

101.

The discharge of Mr. Knight directly resulted from the content of his speech—

15

namely, statements he made that revealed his sexual orientation. Based entirely on those

16

statements, the Navy twice separated him from the Navy under 10 U.S.C. § 654 and the

17

regulations, policies, and guidance that implement it.

18
19
20
21
22
23
24

102.

The discharge of Mr. Knight under 10 U.S.C. § 654 and the regulations, policies,

and guidance that implement it therefore violated his First Amendment rights.
CLAIM ELEVEN
(VIOLATION OF ADMINISTRATIVE PROCEDURES ACT—
BY PLAINTIFF ALMY AGAINST THE AIR FORCE DEFENDANTS)
103.

Mr. Almy incorporates by reference and re-alleges each preceding paragraph as if

fully set forth herein.
104.

During Mr. Almy’s deployment in Iraq that began in 2004, AFI 33-119, which

25

authorized service members to use their government email accounts for personal correspondence,

26

created an expectation of privacy attaching to personal correspondence sent from service

27

members’ government email accounts. Mr. Almy therefore expected that his personal

28

correspondence sent from his government email account would be private. In fact, Mr. Almy
FIRST AMENDED COMPLAINT
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18

1

took steps to segregate his personal emails from his work correspondence in a separate folder and

2

to label them as such.

3

105.

Furthermore, under Air Force policy, email accounts may not be searched unless

4

authorized by proper legal authority or by an individual at the level of squadron commander or

5

higher in the military chain of command.

6

106.

The search of Mr. Almy’s personal emails, which directly led to the initiation of

7

administrative discharge proceedings under DADT, was done in contravention of the Air Force

8

policies and the expectation of privacy described in paragraphs 104 and 105.

9

107.

Accordingly, the Air Force’s initiation of administrative discharge proceedings,

10

and the subsequent administrative determination that Mr. Almy should be discharged pursuant to

11

DADT, were done without observance of procedures required by law; were arbitrary, capricious,

12

an abuse of discretion, or otherwise not in accordance with law; and were unsupported by

13

substantial evidence, all in violation of the Administrative Procedures Act.

14

PRAYER FOR RELIEF

15

WHEREFORE, plaintiffs respectfully request that the Court:

16

A.

Issue a judgment, declaring that 10 U.S.C. § 654, and the regulations, policies, and

17

guidance that implement it, including but not limited to AFI 36-3206, AFI 36-3208, and

18

MILPERSMAN 1910-148, are on their face null and void as violating the United States

19

Constitution.

20

B.

Issue a judgment, declaring that the order discharging Mr. Almy from the Air

21

Force under 10 U.S.C. § 654, and the regulations, policies, and guidance that implement it, is on

22

its face null and void as violating the United States Constitution and the Administrative

23

Procedures Act.

24

C.

Issue a mandatory injunction ordering the Air Force Defendants, and these

25

defendants’ agents, assistants, successors, employees, attorneys, and all persons acting in concert

26

or cooperation with them or at their direction or under their control, to reinstate Mr. Almy into

27

active duty in the Air Force.

28
FIRST AMENDED COMPLAINT
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1

D.

Issue a judgment, declaring that the order discharging Mr. Loverde from the Air

2

Force under 10 U.S.C. § 654, and the regulations, policies, and guidance that implement it, is on

3

its face null and void as violating the United States Constitution.

4

E.

Issue a mandatory injunction ordering the Air Force Defendants, and these

5

defendants’ agents, assistants, successors, employees, attorneys, and all persons acting in concert

6

or cooperation with them or at their direction or under their control, to reinstate Mr. Loverde into

7

active duty in the Air Force.

8
9
10
11

F.

Issue a judgment, declaring that the orders discharging Mr. Knight from the Navy

under 10 U.S.C. § 654, and the regulations, policies, and guidance that implement it, are on their
face null and void as violating the United States Constitution.
G.

Issue a mandatory injunction ordering the Navy Defendants, and these defendants’

12

agents, assistants, successors, employees, attorneys, and all persons acting in concert or

13

cooperation with them or at their direction or under their control, to reinstate Mr. Knight into

14

active duty in the Navy.

15

H.

Grant plaintiffs’ costs, including reasonable attorneys’ fees.

16

I.

Grant such other relief that the Court considers proper.

17

Dated: May 4, 2011

18
19
20

M. ANDREW WOODMANSEE
STEPHANIE L. FONG
KIMBERLY R. GOSLING
JESSICA A. ROBERTS
MORRISON & FOERSTER LLP
AARON D. TAX
JOHN M. GOODMAN
SERVICEMEMBERS LEGAL DEFENSE
NETWORK

21
22
23

By:

24
25

/s/ M. Andrew Woodmansee
M. ANDREW WOODMANSEE
Attorneys for Plaintiffs
MICHAEL D. ALMY, ANTHONY J.
LOVERDE, AND JASON D. KNIGHT

26
27
28
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1
2
3

CERTIFICATE OF SERVICE
The undersigned certifies that on May 4, 2011, a true and correct copy of the foregoing
document was filed electronically with this Court. As such, this document was served on all

4
counsel who have consented to electronic service.
5
6
7

/s/ M. Andrew Woodmansee
M. Andrew Woodmansee

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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FIRST AMENDED COMPLAINT
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