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

Filing 49

MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment, and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Department of the Air Force, Department of the Navy, Michael B. Donley, Robert M. Gates, Ray Mabus, United States Department of Defense. Motion Hearing set for 10/13/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 9/2/2011. Replies due by 9/9/2011. (Attachments: # 1 Proposed Order)(Parker, Ryan) (Filed on 8/19/2011)

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IAN HEATH GERSHENGORN
Deputy Assistant Attorney General
MELINDA L. HAAG
United States Attorney
VINCENT M. GARVEY
Deputy Director
PAUL G. FREEBORNE
Virginia Bar No. 33024
RYAN B. PARKER
Utah Bar No. 11742
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

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Attorneys for Federal Defendants
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF
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DEFENSE, ROBERT M. GATES, Secretary of )
Defense; DEPARTMENT OF THE AIR FORCE; )
MICHAEL B. DONLEY, Secretary, Department )
of the Air Force; DEPARTMENT OF THE
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NAVY; and RAY MABUS, Secretary,
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Department of the Navy,
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Defendants.
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MICHAEL D. ALMY, ANTHONY J.
LOVERDE, and JASON D. KNIGHT,

Case No. 3:10-cv-5627 (RS)
FEDERAL DEFENDANTS’ NOTICE
OF MOTION TO DISMISS OR, IN THE
ALTERNATIVE, CROSS-MOTION
FOR SUMMARY JUDGMENT,
OPPOSITION TO PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT, AND MEMORANDUM
IN SUPPORT
Hearing Date: Thursday, October 13,
2011
Time: 1:30 P.M.
Courtroom: San Francisco Courthouse,
Courtroom 3 - 17th Floor 450 Golden
Gate Avenue, San Francisco, CA 94102

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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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NOTICE OF MOTION TO DISMISS OR, IN THE ALTERNATIVE,
MOTION FOR SUMMARY JUDGMENT

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE THAT on October 13, 2011 at 1:30 p.m. or as soon
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thereafter as the matter may be heard before the Honorable Richard Seeborg, in the District
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Court for the Northern District of California, in Courtroom 3 – 17th Floor, Defendants United
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States, Secretary of Defense, Department of the Air Force, Secretary of the Air Force,
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Department of the Navy, and Secretary of the Navy, will and hereby do move to dismiss this
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action or, in the alternative, for summary judgment as to the claims set forth in Plaintiffs’ First
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Amended Complaint, pursuant to Fed. R. Civ. P. 12 and 56(a).
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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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TABLE OF CONTENTS

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

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BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

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I.

DADT Repeal Act and Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

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II.

Nature of Lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

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III.

Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

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SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-

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ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

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I.

FOR PRUDENTIAL REASONS, THIS COURT SHOULD REFRAIN
FROM EXERCISING JURISDICTION OVER PLAINTIFFS’ CLAIMS . . . . -9-

II.

THE EQUITABLE REMEDIAL AUTHORITY OF THE COURT
STRONGLY COUNSELS FOR RESTRAINT WITH RESPECT TO
PLAINTIFFS’ REQUEST FOR REINSTATEMENT . . . . . . . . . . . . . . . . . . -13-

III.

THE COURT SHOULD DENY PLAINTIFFS’ CLAIMS GIVEN
PLAINTIFFS’ PREJUDICIAL DELAY IN CHALLENGING THEIR
DISCHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-

IV.

CLAIM XI OF THE FIRST AMENDED COMPLAINT MUST BE
DISMISSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-

V.

BECAUSE THE INDIVIDUAL CLAIMS HERE ARE IMPROPERLY
JOINED, THE COURT SHOULD SEVER THE PARTIES’ CLAIMS
AND DISMISS THE CLAIMS OF ALMY AND KNIGHT . . . . . . . . . . . . . -19-

VI.

PLAINTIFFS ARE NOT ENTITLED TO PARTIAL SUMMARY
JUDGMENT ON THEIR SUBSTANTIVE DUE PROCESS CLAIMS . . . . . -23-

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2520
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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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TABLE OF AUTHORITIES
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CASES
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Alligood v. United States,
14 Cl. Ct. 11 (1987)...........................................................................................................17

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Ashwander v. Tenn. Valley Auth.,
297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

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Bautista v. Los Angeles Cnty.,
216 F.3d 837 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Boone v. Mech. Specialties Co.,
609 F.2d 956 (9th Cir.1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Burlington N. Santa Fe R.R. Co. v. Assinboine and Sioux Tribes of Fort Peck Reservation,
323 F.3d 767 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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Charette v. Walker,
996 F. Supp. 43 (D.D.C. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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City of Ontario v. Quon,
— U.S. —, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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Coughlin v. Rogers,
130 F.3d 1348 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

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Couveau v. Am. Airlines,
218 F.3d 1078 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Dodson v. Dep't of the Army,
988 F.2d 1199 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

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eBay Inc. v. MercExchange, LLC,
547 U.S. 388 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Ellersick v. United States,
No. 466-78, 1979 WL 30806 (Ct.Cl. Sept. 21, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Garrett v. Lehman,
751 F.2d 997 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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General Am. Tank Car Corp. v. El Dorado T. Co.,
308 U.S. 422 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Gilligan v. Morgan,
413 U.S. 1 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15

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Hamilton v. Thompson,
No. 09-648, 2011 WL 2580659 (N.D. Cal. June. 29, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 25

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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co.,
342 U.S. 180 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Kindred v. United States,
41 Fed. Cl. 106 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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Kling v. Hallmark Cards Inc.,
225 F.3d 1030 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Kremens v. Bartley,
431 U.S. 119 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Landis v. N. Am. Co.,
299 U.S. 248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

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Lawrence v. Texas,
539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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Leyva v. Certified Grocers of Cal. Ltd.,
593 F.2d 857 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Mediterranean Enters., Inc. v. Ssangyong Corp.,
708 F.2d 1458 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Meinhold v. Dep’t of Defense,
808 F.Supp. 1455 (C.D.Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17

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Mosley v. Gen. Motors Corp.,
497 F. 2d 1330 (9th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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Neighbors of Cuddy Mountain v. United States Forest Serv.,
137 F.3d 1372 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Nichols v. Hughes,
721 F.2d 657 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Orloff v. Willoughby,
345 U.S. 83 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

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Philips v. Perry,
106 F.3d 1420 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Pochiro v. Prudential Ins. Co. of Am.,
827 F.2d 1246 (9th Cir.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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R. R. Comm'n of Tex. v. Pullman Co.,
312 U.S. 496 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Robinson v. Geithner,
No. 05-1258, 2011 WL 66158 (E.D. Cal. Jan. 10, 2011) . . . . . . . . . . . . . . . . . . . . . . . 21, 22

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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-iiiAlmy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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Samuels v. Mackell,
401 U.S. 66 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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3

Saval v. BL Ltd.,
710 F.2d 1027 (4th Cir.1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Schlesinger v. Councilman,
420 U.S. 738 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Sell v. United States,
539 U.S. 166 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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Southern Cal. Painters & Allied Trades Dist. Council No. 36,
558 F.3d 1028 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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Spector Motor Servs. v. McLaughlin,
323 U.S. 101 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Thomas v. United States,
42 Fed. Cl. 449 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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Turner v. Lafond,
No. 09-683, 2009 WL 3400987 (N.D. Cal. Oct. 20, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 21

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United States v. Vilches-Navarrete,
523 F.3d 1 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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United States v. Larson,
66 M.J. 212 (C.A.A.F. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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United States v. W. Pac. R. Co.,
352 U.S. 59 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Watson v. Ark. Nat'l Guard,
886 F.2d 1004 (8th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Witt v. Dep't of the Air Force,
527 F.3d 806 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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Witt v. Dep’t of the Air Force,
739 F. Supp. 2d 1308 (W.D. Wash. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Witt v. Dep’t of the Air Force,
444 F. Supp. 2d 1138 (W.D. Wash. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Yakus v. United States,
321 U. S. 414 (1944).........................................................................................................13, 14

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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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U. S. CONSTITUTION

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U.S. Const., Art. II, 3.....................................................................................................................16

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STATUTES
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10 U.S.C. § 654......................................................................................................................passim
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28 U.S.C. §1391.........................................................................................................................9, 20
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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY JUDGMENT

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INTRODUCTION
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The effective date of the repeal of 10 U.S.C. § 654 pursuant to the Don’t Ask, Don’t Tell
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Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), is nearly here. The Department
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of Defense has worked steadfastly to prepare the necessary policies and regulations to effectuate
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repeal, and to train 2.2 million Service members, including senior leadership, the Chaplain Corps,
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and the judge advocate community on the implications of repeal. The President, the Secretary of
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Defense, and the Chairman of the Joint Chiefs of Staff have certified that the congressionally
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mandated prerequisites to repeal have been satisfied. Repeal of Section 654 will become effective
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on September 20, 2011. Through the work of the political Branches and the efforts of the military,
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open service by gay and lesbian Service members will be permitted, and Service members who
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have been previously discharged under Section 654 will be permitted to reapply. Indeed, plaintiffs
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may submit applications for re-accession now, and the Services will begin processing those
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applications once they are received. The Services will (among other things) review the individual
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applications, conduct ordinary records and background checks, and consider service needs,
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including any limitations on service end strength and skill requirements. Although no readmission
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will occur prior to September 20, the Services expect to be able to decide plaintiffs’ request for
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readmission promptly after September 20, provided that plaintiffs submit applications for re20
accession within the next week, provide necessary information, and no presently unforeseeable
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issues arise. And, although the Services have not undertaken a formal review of plaintiffs’ records,
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an informal review of those records, including a preliminary examination of plaintiffs’ fields of
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expertise and the current needs of the military, suggests that one or more plaintiffs will be a strong
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candidate for re-accession to the Service.
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The claims that plaintiffs present here thus arise at a critical juncture in the repeal process.
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All three plaintiffs are former service members discharged pursuant to Section 654 and its
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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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implementing regulations. All waited years before filing suit, and then did so just weeks before the

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passage of the Repeal Act. And all seek from this Court an order of immediate reinstatement to

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military service.

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The court-ordered reinstatement that plaintiffs seek would undermine the repeal process that

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the political Branches have worked hard to effectuate. An animating principle of the Repeal Act

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is that a smooth and effective transition is most likely to result when decisions are made by civilian

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and military leadership of the Department of Defense, implemented in the manner those leaders

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think most appropriate. And while the judgments of civilian and military leaders have been

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important at every stage, those judgments are especially important with respect to decisions

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regarding re-accession, where leaders must assess and address the needs of a military that is

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engaged in multiple conflicts, while at the same time making the difficult personnel decisions

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required by increasingly limited military resources.

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Plaintiffs, in short, are asking this Court to adjudicate their claims in a very different world

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from that in which their initial discharges occurred. Particularly in light of those changed

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circumstances, settled principles of equitable restraint, as well as restrictions on court-ordered

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equitable relief, preclude plaintiffs from successfully pursuing their claims for reinstatement. In

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keeping with long-standing traditions of deference to the judgments of military leaders concerning

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military matters, specific re-accession decisions – which individuals should be selected to serve in

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what capacities in our Nation’s military – should be made by military leaders, rather than this

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Court.
BACKGROUND

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I.

DADT Repeal Act and Implementation

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In December 2010, Congress provided for repeal of 10 U.S.C. § 654 and its implementing

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regulations (collectively, DADT), effective 60 days after the President, the Secretary of Defense,

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and the Chairman of the Joint Chiefs of Staff certify to Congress that the military has made the

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preparations necessary for an orderly repeal. Don’t Ask, Don’t Tell Repeal Act of 2010 (“ADT

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Repeal Act”, § 2(b), Pub. L. No. 111-321, 124 Stat. 3515, 3516 (2010). The certifications called

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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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for in the Repeal Act were issued on July 22, 2011. See

Certifications, available at:

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http://www.whitehouse.gov/sites/default/files/uploads/dadtcert.pdf. Section 654 will be repealed

3

effective September 20, 2011.

4

The repeal of DADT caps a careful process of study, deliberation, and implementation by

5

the political Branches. Congress enacted 10 U.S.C. § 654 in 1993. Developed as an alternative to

6

the military’s prior regulations effecting a total ban on service by gay and lesbian individuals, DOD

7

Directive 1332.14.H.1.a, 32 C.F.R. Pt. 41, App. A (1991) (superseded), Section 654 provides for

8

separation from the military if a member of the armed forces has (1) “engaged in, attempted to

9

engage in, or solicited another to engage in a homosexual act”; (2) “stated that he or she is a

10

homosexual or bisexual, or words to that effect, unless there is a further finding . . . that the member

11

has demonstrated that he or she is not a person who engages in, attempts to engage in, has a

12

propensity to engage in, or intends to engage in homosexual acts”; or (3) “married or attempted to

13

marry a person known to be of the same biological sex.” 10 U.S.C. § 654(b)(1)-(3).

14

When President Obama took office, he made clear that his administration would support

15

repeal of § 654 through the political process. To that end, the Secretary of Defense in March 2010

16

established the Department of Defense Comprehensive Review Working Group, which the

17

Secretary tasked with both assessing the impact of a repeal of § 654 and recommending policy

18

changes that repeal would necessitate. See Report of the Comprehensive Review of the Issues

19

Associated with a Repeal of Don’t Ask Don’t Tell, Executive Summary (dated Nov. 30, 2010) at

20

29, available at: www.defense.gov/home/features/2010/0610_dadt/DADTReport_FINAL _2010

21

1130(secure-hires).pdf.

22

The Working Group solicited the views of hundreds of thousands of members of the

23

military on the effects associated with a repeal of § 654. It conducted a large scale, professionally

24

developed survey of both Service members and their families that generated 115,052 responses

25

from Service members and 44,266 responses from spouses. Id. at 36-39. The Working Group

26

consulted military scholars and historians, various outside advocacy groups and military

27

organizations, and foreign military organizations. Id. at 39-42. And it commissioned the RAND

28
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-3-

1

Corporation to provide additional research and analysis. Id. at 43-44.

2

The Working Group issued a Report on November 30, 2010, summarizing the results of its

3

comprehensive study and its recommended changes to military policy. It concluded that “repeal

4

can be implemented now, provided that it is done in a manner that minimizes the burden on leaders

5

in deployed areas.” Id. at 127; see also id. at10.1 The Working Group accompanied its report with

6

a Support Plan for Implementation – a comprehensive framework for carrying out the necessary

7

training and preparation associated with repeal of the statute.

8

In accordance with the Working Group’s recommendations, Congress enacted the Repeal

9

Act. Congress provided that repeal of § 654 would become effective 60 days after: (1) the

10

Secretary of Defense has received the Comprehensive Working Group’s report, and (2) the

11

President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff all certify that

12

they have considered the Working Group’s recommendations, and have prepared the necessary

13

policies and regulations to implement repeal consistent with military readiness, military

14

effectiveness, unit cohesion, and both recruiting and retention in the Armed Forces. Pub. L. No.

15

111-321 § 2(b), 124 Stat. 3515, 3516. Congress also provided, however, that the former statutory

16

policy would remain in effect until repeal occurs. Id. § 3(c), 124 Stat. at 3516.

17

In the wake of the Repeal Act, the Department of Defense set about to accomplish the

18

training of the Force and the revisions to policies and regulations needed to effectuate the orderly

19

process laid out by Congress in the Act. The Department has trained 2.2 million Service members,

20

both within the U.S. and deployed abroad, including senior leadership, the Chaplain Corps, and the

21

judge advocate community on the implementation of repeal.

22

At the same time, the Department of Defense has reviewed nearly 90 separate regulations

23

and policies that are to be adopted on the date of repeal. The revised regulations and policies will

24

provide, inter alia, that Service members such as plaintiffs, who were discharged under DADT, will

25
1

26
27

The Working Group noted that its recommendations were “based on conditions we observe
in today’s U.S. military” and thus that “[n]othing in this report should be construed as doubt by
us about the wisdom of enacting 10 U.S.C. § 654 in 1993, given circumstances that existed
then.” Id. at 3 n.2.

28
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-4-

1

be allowed to seek re-accession into the Armed Forces. “Upon repeal, statements about sexual

2

orientation or lawful acts of homosexual conduct will not be considered as a bar to military service

3

or admission to Service academies, ROTC or any other accession program.” See Memorandum for

4

Secretaries of the Military Departments, “Repeal of Don’t Ask, Don’t Tell” and Future Impact on

5

Policy, Jan. 28, 2011, at 1, attached. Indeed, the Services are already open to receiving applications

6

for re-accession from previously discharged Service members, and will begin to process those

7

applications prior to September 20.

8

II.

9

Plaintiffs are three former Service members who challenge the constitutionality of their

10

Nature of Lawsuit

discharge under DADT.

11

Plaintiff Michael Almy was a communications officer with the Air Force who attained the

12

rank of major. Am. Compl. ¶¶ 24-25, ECF No. 38.2 After Almy returned from a 2005 deployment

13

in Iraq, Air Force officials allegedly searched his Air Force email account and found e-mails from

14

Almy to another man discussing homosexual conduct. Id. ¶ 29. Almy subsequently stated that he

15

was gay, and he was discharged from the military in 2006 pursuant to DADT. Id. ¶¶ 29, 35.

16

Plaintiff Anthony Loverde was an enlisted member of the Air Force who served as an

17

aircraft equipment technician. Loverde informed his superior officers that he was gay and in 2008

18

was discharged from the Air Force pursuant to DADT. Id. ¶¶ 42, 47.

19

Plaintiff Jason Knight was an enlisted member of the Navy. See Decl. of Patrick A. Count,

20

attached. In late February 2005, Knight told his command that he was gay. Id. ¶ 3. Contrary to

21

his claim that this resulted in a discharge under DADT, the Navy decided not to initiate separation

22

proceedings under DADT because Kight had only weeks remaining on his active duty enlistment

23

contract. Id. ¶5. Instead, the Navy discharged Knight on April 3, 2005, at the end of his active duty

24

service obligation. Id. Knight remained a member of the Individual Ready Reserve (“IRR”) and,

25

in the fall of 2006, was recalled to active duty and deployed to Kuwait. Decl. of Kathy Wardlaw,

26
27

2

The allegations in plaintiffs’ First Amended Complaint are accepted solely for the purpose
of defendants’ Motion to Dismiss.

28
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-5-

1

United States Navy, ¶5, attached. During his time in Kuwait, Knight made statements that appeared

2

in a newspaper article indicating that he was gay. Am. Compl. ¶¶ 5,6. Based on those statements,

3

Knight was discharged from the Navy in May 2007 under the DADT policy. Id. at ¶¶ 5,7. Knight’s

4

eight-year enlistment contract with the Navy expired on April 3, 2009. Id. at ¶ 3.

5

III.

6

Years after discharge and just weeks before passage of the Repeal Act, plaintiffs filed this

7

Procedural History

lawsuit in December 2010 claiming that their discharges were unconstitutional.

8

All three plaintiffs initially sought reinstatement to the military and credit towards

9

retirement for the time each would have served had they not been discharged, Compl. ¶¶ 65, 70,

10

75, ECF No. 1, and all sought a declaratory judgment that DADT is facially unconstitutional. Id.

11

at 19 (Prayer for relief). Almy also asked the Court to promote him to Lieutenant Colonel. Id. at

12

19 (Prayer for relief). And Almy claimed that his discharge violated the Administrative Procedure

13

Act (“APA”), alleging that the Air Force’s search of his government-provided computer violated

14

military regulations and infringed his privacy rights and that evidence from that search was

15

improperly used as a basis for his discharge. Id. ¶¶ 103-107.

16

Defendants moved to transfer the case to the Court of Federal Claims, contending that

17

plaintiffs’ claims for back pay and other monetary remedies could be heard only in that court. Mot.

18

To Transfer Action to Court of Federal Claims, ECF No. 19. Plaintiffs opposed transfer, and they

19

sought leave to file a First Amended Complaint (“FAC”), which omitted any claims for monetary

20

relief. See Mot. Seeking Leave to File FAC. ECF No. 30; Opp. To Mot. to Transfer Action to

21

Court of Federal Claims, ECF Nos. 32. Claims I-III of the First Amended Complaint (“FAC”)

22

presented as-applied substantive due process challenges to DADT. Claim IV of the FAC sets forth

23

a facial substantive due process challenge to DADT. Claims V-X of the FAC set forth facial and

24

as-applied equal protection and First Amendment challenges to DADT. Claim VI of the FAC sets

25

forth Almy’s APA claim, discussed above. See generally, Am. Compl.

26

On May 3, 2011, the Court denied the motion to transfer and granted plaintiffs leave to file

27

the FAC. Order Granting Mot. For Leave to File First Am. Compl., ECF No. 37. The Court ruled

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-6-

1

that it had subject-matter jurisdiction over this action because plaintiffs had clearly and expressly

2

disavowed any intention to recover monetary damages in this proceeding. The sole relief plaintiffs

3

now seek in this litigation is a declaration that their discharges were unconstitutional and an order

4

requiring their reinstatement into the military. See Am. Compl. (Prayer for Relief).

5

Prior to any chance for discovery, plaintiffs moved for partial summary judgment on the as-

6

applied substantive due process claims presented in Counts I-III of the FAC. They ask that the

7

Court order their reinstatement in the Armed Forces, effective 30 days after the Court’s hearing,

8

see Plaintiffs’ Proposed Order, ECF No. 44, currently noticed for October 13, 2011.

9

SUMMARY OF ARGUMENT

10

The Court should dismiss the FAC or, in the alternative, grant defendants’ motion for

11

summary judgment and deny plaintiffs’ partial motion for summary judgment on the claims

12

presented in Counts I-III of the FAC.

13

In December 2010, Congress provided for repeal of DADT effective 60 days after the

14

President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify to

15

Congress that the military has made the preparations necessary for an orderly repeal. The

16

certifications called for in the law were issued on July 22, 2011, and Section 654 will be repealed

17

effective September 20, 2011. Plaintiffs may now submit applications seeking re-accession into

18

the Armed Forces, and, if they meet the current needs of the Services and the criteria for re-

19

accession – which do not consider sexual orientation – they may be re-accessed. Doctrines of

20

equitable restraint counsel the Court to refrain from adjudicating plaintiffs’ claims and their request

21

for reinstatement when plaintiffs have administrative procedures that may result in their re-

22

accession into the Armed Forces without judicial involvement. Such doctrines have particular force

23

where, as here, constitutional avoidance counsels against adjudicating the merits of plaintiffs’

24

constitutional challenge to § 654 unnecessarily.

25

Even if this Court could exercise jurisdiction now, constraints on the Court’s equitable

26

authority would limit the availability of reinstatement here. For Knight, those limits are absolute.

27

Knight’s eight-year enlistment contract would have expired in April, 2009. Because enlistments

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-7-

1

are subject to limited terms of service, enlisted personnel, even if improperly discharged, are not

2

entitled to reinstatement after the expiration of their then-current terms of enlistment. Knight’s

3

claim for reinstatement thus must be dismissed.

4

Even as to Almy and Loverde, equitable considerations counsel restraint. Decisions about

5

re-accession are in the circumstances here properly left to the military, which now has a process

6

for considering applications of Service members discharged under DADT. And that is all the more

7

so here for two reasons. First, court-ordered reinstatement outside of the re-accession process could

8

hinder acceptance of the process of repeal and undermine the goals of the Repeal Act. Second, re-

9

accession in the wake of repeal and against the backdrop of increasingly limited resources requires

10

a host of difficult judgments that are properly made by military leaders responsible for the overall

11

Force, with the expertise and perspective needed to make these critical decisions in a time of

12

ongoing conflicts, rather than by any individual judge in the context of a particular case.

13

Plaintiffs’ claims for injunctive relief are in any event barred by laches. In contrast to other

14

Service members who have challenged their discharge, plaintiffs delayed for substantial periods

15

of time – more than four years in Almy’s case – before seeking reinstatement. Plaintiffs’ long delay

16

before filing suit would make this litigation more difficult to defend, as memories have faded, and

17

key witnesses have changed units or left the military altogether. Because of plaintiffs’ delay in

18

seeking judicial review, defendants are forced to search for stale evidence to prove facts better

19

adjudicated in the immediate aftermath of a challenged discharge.

20

Almy’s APA claim (Am. Compl. ¶¶ 103-107 (“Claim XI”)) that his discharge resulted from

21

the improper search of his Air Force email account must also be rejected. Almy had no reasonable

22

expectation of privacy in the contents of the government-provided and government-owned

23

computer, particularly after the computer was returned to the government and was no longer in his

24

possession. The Air Force’s search of that computer was reasonable. His discharge, moreover, was

25

an administrative rather than a criminal, proceeding. The function of discharge proceedings is to

26

determine eligibility for further military service, not to punish for past wrongs. Reliance on such

27

emails, even if the emails were obtained improperly, would thus not negate an otherwise lawful

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-8-

1

discharge.

2

Even if the Court finds that any of plaintiffs’ claims may proceed past dismissal under Rule

3

12 or summary judgment under Rule 56, moreover, this action may not proceed in its current form.

4

Plaintiffs’ cases should be severed and adjudicated individually, as none satisfies the prerequisites

5

for joinder under the Federal Rules of Civil Procedure. And, standing alone, the claims of Almy

6

and perhaps those of Knight should be dismissed because venue is not proper in this district under

7

28 U.S.C. §1391(e).

8

Under no circumstances should the Court grant plaintiffs summary judgment on the as-

9

applied substantive due process claims set forth in Counts I-III of the FAC at this time. While the

10

Government recognizes that the Court may be bound by the test set forth in Witt v. Dep’t of the Air

11

Force, 527 F.3d 806 (9th Cir. 2008), regarding plaintiffs’ as-applied, substantive due process

12

challenge, there must be development of a factual record to apply this test. And such factual

13

development is all the more important here, where it has been years since plaintiffs’ discharges and

14

discovery is needed to ensure that this Court has all relevant information before determining

15

whether to grant the intrusive relief that plaintiffs seek. Given that plaintiffs have filed their motion

16

before discovery has even commenced, the Court should deny plaintiffs’ motion for partial

17

summary judgment or, at a minimum, defer ruling on it until defendants are provided the

18

opportunity to develop a fuller factual record through appropriate discovery.
ARGUMENT

19
20
21
22
23
24
25
26

I.

FOR PRUDENTIAL REASONS, THIS COURT SHOULD REFRAIN FROM
EXERCISING JURISDICTION OVER PLAINTIFFS’ CLAIMS
The Court should refrain from exercising its jurisdiction, and thus should decline to rule

upon the constitutionality of a federal statute because plaintiffs can apply for re-accession to the
Armed Forces. Indeed, once plaintiffs submit applications for re-accession, the Services will begin
processing those applications, reviewing the individual applications, conducting ordinary records
and background checks, and considering service needs, including any limitations on service end
strength and skill requirements. Although no readmission will occur prior to September 20, the

27
28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

-9-

1

Services expect to be able to decide plaintiffs’ requests for readmission promptly after September

2

20, provided that plaintiffs submit applications for re-accession within the next week, provide

3

necessary information, and no presently unforeseeable issues arise. Any plaintiff that is granted

4

re-accession will have received all of the relief that he seeks from this Court, allowing this Court

5

to avoid intruding into military affairs and resolving difficult constitutional questions. For

6

prudential reasons, therefore, the Court should defer to the military and require plaintiffs to avail

7

themselves of the re-accession process.

8

District courts have power to stay proceedings on equitable grounds to allow other

9

proceedings to go forward. Leyva v. Certified Grocers of Cal. Ltd., 593 F.2d 857, 863 (9th Cir.

10

1979) (“A trial court may, with propriety, find it is efficient for its own docket and the fairest

11

course for the parties to enter a stay of an action before it, pending resolution of independent

12

proceedings which bear upon the case.”) (Kennedy, then-judge); see also e.g., Landis v. N. Am. Co.,

13

299 U.S. 248, 254-55 (1936). This is true “whether the separate proceedings are judicial,

14

administrative, or arbitral in character, and does not require that the issues in such proceedings are

15

necessarily controlling of the action before the court.” Leyva, 593 F.2d at 863-64; Mediterranean

16

Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (same); see also Kerotest

17

Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84 (1952) (upholding stay to allow other

18

litigation to proceed).

19

Courts have, for example, frequently stayed claims to allow for the resolution of issues that

20

have been placed within the special competence of an administrative body, see, e.g., United States

21

v. W. Pac. R. Co., 352 U.S. 59, 63-64 (1956) (applying doctrine of primary jurisdiction); see also

22

Gen. Am. Tank Car Corp. v. El Dorado T. Co., 308 U.S. 422, 433 (1940), giving the agency an

23

opportunity to attempt to resolve the matter through its proceedings. And courts have likewise

24

declined to exercise jurisdiction where doing so would serve an important counterveiling interest,

25

such as permitting, as here, the military to address matters within their unique institutional

26

expertise, see e.g, Schlesinger v. Councilman, 420 U.S. 738 (1975) (recognizing that civilian courts

27

should abstain, in light of expertise of military courts, from intervening in court martial proceedings

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-10Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

until plaintiff has exhausted military remedies), or permitting courts to avoid adjudicating

2

constitutional questions that may be rendered moot, see e.g., R. R. Comm’n of Tex. v. Pullman Co.,

3

312 U.S. 496 (1941) (holding that federal courts should ordinarily abstain from resolution of federal

4

constitutional issues that may be rendered irrelevant by determination of predicate state law

5

question). See generally Landis, 299 U.S. at 256 (“Especially in cases of extraordinary public

6

moment, the individual may be required to submit to delay not immoderate in extent and not

7

oppressive in its consequences if the public welfare or convenience will thereby be promoted.”).

8

Withholding adjudication here in light of the administrative process for re-accession is

9

appropriate. First, permitting the re-accession process to proceed is consistent with the traditional

10

reluctance of the Judicial Branch to intervene unnecessarily in military affairs, and to defer when

11

possible to the Executive Branch and the military regarding such matters. See Gilligan v. Morgan,

12

413 U.S. 1, 10-11 (1973) (“The complex, subtle, and professional decisions as to the composition,

13

training, equipping, and control of a military force are essentially professional military judgments,

14

subject always to civilian control of the Legislative and Executive Branches.”) (emphasis added).

15

The question of what mix of skills and experience will best serve the needs of the military,

16

especially during a time of reductions in force, is one that should be answered in the first instance

17

by the military.

18

Second, letting the military re-accession process proceed is consistent with Congress’ intent

19

in enacting the Repeal Act. As noted, the Repeal Act envisioned an orderly process for allowing

20

gay and lesbian service members to serve in the military, with decisions to be made by military and

21

civilian leaders. That approach reflects the view that those leaders are the ones with the expertise

22

and experience to ensure that repeal is implemented consistent with the needs of military readiness

23

and effectiveness. Repeal Act § 2(b)(2)(C), 124 Stat. at 3516 (requiring certifications by Executive

24

Branch and military officials prior to permitting service by gay and lesbian service members so to

25

ensure “standards of military readiness, military effectiveness, unit cohesion, and recruitment and

26

retention of the Armed Forces”). Indeed, the legislative history of the Repeal Act suggests that one

27

concern was the risk that, absent passage, courts could assert control over the process of ending

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-11Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

DADT. See, e.g., 156 Cong. Rec. S10,689 (statement of Sen. Carper) (daily ed. Dec. 18, 2010)

2

(Repeal Act “implement[s] this repeal of don’t ask, don’t tell in a thoughtful manner rather than to

3

have the courts force them into it overnight”); id. at S10,649 (statement of Sen. Durbin) (“Congress

4

or the courts. That is the choice.”); id. at E2,177 (statement of Rep. Cummings) (noting that “the

5

courts have become involved” and that “Secretary Gates has warned that judicial repeal will put

6

an administrative burden on the Department of Defense, and has asserted that Congressional action

7

is most favorable”).

8

Nor is expertise the only consideration. In the Repeal Act, Congress ensured that

9

responsibility for repeal would lie ultimately with military leaders, including the Commander-in-

10

Chief. This allowed Service members to see the military and civilian leadership of the Department

11

of Defense take the lead in implementing the repeal, giving members confidence that the repeal was

12

being handled consistent with the judgment of those entrusted with ensuring the readiness and

13

effectiveness of the Armed Forces. In so doing, Congress maximized the likelihood that the

14

military itself would “own” the process of repeal, consistent with Congress’ judgment that change

15

from within the organization will be more effective than change imposed from the outside.

16

Allowing plaintiffs to bypass the re-accession process that the Services have set up in response to

17

repeal is at odds with this congressional judgment.

18

Third, the doctrine of constitutional avoidance counsels the same approach. To enter

19

judgment for plaintiffs and award them relief in the form of reinstatement, the Court would have

20

to conclude that plaintiffs’ discharges, although required by statute, were unconstitutional. But it

21

is well-established that courts should not decide constitutional issues if they can reasonably avoid

22

doing so. See Spector Motor Servs. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one

23

doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that

24

we ought not to pass on questions of constitutionality . . . unless such adjudication is

25

unavoidable.”); United States v. Vilches-Navarrete, 523 F.3d 1, 10 n.6 (1st Cir. 2008) (“The

26

maxim that courts should not decide constitutional issues when this can be avoided is as old as the

27

Rocky Mountains and embedded in our legal culture for about as long.”); Ashwander v. Tenn.

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-12Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“It is not the habit of the court

2

to decide questions of a constitutional nature unless absolutely necessary to a decision of the case”)

3

(internal citation omitted). Here, this Court may be able to avoid deciding the constitutionality of

4

DADT by requiring plaintiffs to employ existing administrative channels in order to seek re-

5

accession. When such an avenue is available, doctrines of constitutional avoidance counsel this

6

Court to take it. See Kremens v. Bartley, 431 U.S. 119, 128 (1977) (noting the role of policy

7

considerations in the doctrine of constitutional avoidance).

8

Nor are there substantial interests on the plaintiffs’ side that would justify disregarding the

9

availability of the re-accession process. The Services are now accepting applications for re-

10

accession and are prepared to act promptly on those applications. If granted re-accession through

11

this process, plaintiffs will have received all of the relief they seek here. And there is no serious

12

concern about delay. Indeed, plaintiffs have the opportunity through the re-accession process to

13

return to military service more quickly than they would through successful litigation of this matter.

14

And, in any event, plaintiffs are not well-positioned to complain about delay, having waited for as

15

many as four years from their discharge to file suit for reinstatement.
For these reasons, the Court should refrain from exercising its jurisdiction over plaintiffs’

16
17

claims in deference to the administrative re-accession process.

18

II.

19

THE EQUITABLE REMEDIAL AUTHORITY OF THE COURTS STRONGLY
COUNSELS FOR RESTRAINT WITH RESPECT TO PLAINTIFFS’ REQUEST
FOR REINSTATEMENT

20

Limits on the equitable authority of the federal courts similarly preclude the relief plaintiffs

21

seek here. “The decision to grant or deny [] injunctive relief is an act of equitable discretion by the

22

district court[.]” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006); see also Weinberger

23

v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (“The exercise of equitable discretion . . . must

24

include the ability to deny as well as grant injunctive relief[.]”). “In exercising their sound

25

discretion, courts of equity should pay particular attention to the public consequences in employing

26

the extraordinary remedy of injunction.” Weinberger, 456 U.S. at 312; see also Yakus v. United

27

States, 321 U.S. 414, 440 (1944) (explaining that where an injunction will adversely affect a public

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-13Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

interest even temporarily, the court may in the public interest withhold relief until a final

2

determination of the rights of the parties). And, where such prudential principles apply so as to

3

render inappropriate an injunction, the same principles also render inappropriate the award of

4

declaratory relief. Samuels v. Mackell, 401 U.S. 66, 69-74 (1974).

5

Limits on equitable discretion preclude the grant of relief here. Knight’s claim for

6

reinstatement, for example, cannot proceed; even if the Court were to find that Knight had been

7

improperly discharged, his eight-year enlistment service contract would have expired on April 3,

8

2009. See Wardlaw Decl. ¶ 3. Enlisted personnel are not entitled to reinstatement following the

9

expiration of their terms of enlistment. Dodson v. Dep't of the Army, 988 F.2d 1199, 1208 (Fed.

10

Cir. 1993); Thomas v. United States, 42 Fed. Cl. 449, 452-53 (1998), aff'd, 217 F.3d 854 (Fed. Cir.

11

1999) (per curiam) (table). Indeed, in virtually all cases, service Secretaries and their authorized

12

designees possess absolute discretion in determining whether enlisted personnel should be granted

13

a new term of enlistment, which courts may not second-guess. Dodson, 988 F.2d at 1208

14

(recognizing unreviewable authority regarding decisions to permit reenlistment). Because enlisted

15

personnel cannot assert a cognizable cause of action beyond an expired term of enlistment, id.; see,

16

e.g., Thomas, 42 Fed. Cl. at 452-53, and because Knight’s eight year enlistment service contract

17

would have expired on April 3, 2009, he is not entitled to reinstatement, the only remedy he seeks.3

18

Even as to Almy and Loverde, limits on the proper scope of equitable relief counsel against

19

court-ordered reinstatement. That is, assuming arguendo that this Court has authority to order

20

reinstatement and that plaintiffs’ claims were justiciable, the Court should decline to exercise its

21

authority to grant the declaratory and injunctive relief plaintiffs seek. As the Supreme Court has

22

observed, “[t]he complex, subtle, and professional decisions as to the composition, training,

23
24
25
26

3

And once Mr. Knight’s claim for reinstatement is dismissed, no “substantial controversy”
would exist between the parties that would permit the award of the declaratory relief Mr. Knight
also seeks. S. Cal. Painters & Allied Trades Dist. Council No. 36 v. Rodin & Co., 558 F.3d
1028, 1036 (9th Cir. 2009). All that would be left for the Court to provide would be an advisory
opinion, which the Court lacks Article III jurisdiction to provide. Id.

27
28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-14Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

equipping, and control of a military force are essentially professional military judgments, subject

2

always to civilian control of the Legislative and Executive Branches.” See Gilligan, 413 U.S. at

3

10-11. “[J]udges are not given the task of running the Army.” Orloff v. Willoughby, 345 U.S. 83,

4

93-94 (1953). And “[o]rderly government requires that the judiciary be as scrupulous not to

5

interfere with legitimate [military] matters as the [military] must be scrupulous not to intervene in

6

judicial matters.” Id.

7

To be sure, some courts have ordered reinstatement in the context of a challenge to the

8

constitutionality of an individual discharge. See, e.g., Witt v. Dep’t of the Air Force, 739 F. Supp.

9

2d 1308, 1317 (W.D. Wash. 2010); Meinhold v. Dept. of Defense, 808 F. Supp. 1455 (C.D. Cal.

10

1993). Regardless of the propriety of such orders, see, e.g., Watson v. Arkansas Nat'l Guard, 886

11

F.2d 1004, 1009 (8th Cir. 1989) (“Watson’s claim for reinstatement as a member of the Guard must

12

be considered nonjusticiable, and we so conclude.”); Charette v. Walker, 996 F. Supp. 43, 50

13

(D.D.C. 1998) (“[P]laintiff’s request for reinstatement and promotion reconsideration are clearly

14

not justiciable because consideration of these claims would require this Court to intrude upon

15

military personnel decisions committed exclusively to the legislative and executive branches.”),

16

there are strong bases for the courts to exercise restraint with respect to its equitable powers here.

17

First, those cases involved situations in which DADT flatly barred plaintiffs’ return to the

18

military. As noted above, that is not the case here. Plaintiffs may file applications for re-accession

19

now, and the effective date of repeal is only weeks away.

20

Second, for many of the reasons noted above, the Court should exercise particular restraint

21

in intruding on military personnel decisions under the circumstances here. Consistent with the

22

congressional judgments reflected in the DADT Repeal Act, repeal of DADT has been directed by

23

the political Branches, with ultimate responsibility for a successful repeal lodged with our military

24

and civilian leaders. A court order that bypasses the system those leaders have established

25

threatens to undermine the goals of the Act. Moreover, because there may be many applicants for

26

re-accession, and because the military already faces resource constraints, difficult personnel

27

decisions will need to be made. Those decisions are properly made by military experts tasked with

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-15Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

ensuring the readiness of the entire Force, rather than by any individual court with jurisdiction over

2

a single case. Cf. Dodson, 988 F.2d at 1205 (“This court does not sit as a super-selection board

3

making personnel decisions for the Army”).

4

Third, as discussed below, much time has passed since plaintiffs were discharged, and

5

neither defendants nor this Court can assess on the existing record how plaintiffs’ experiences in

6

that time affect their current fitness for service. In the absence of completion of the administrative

7

re-accession process, defendants are entitled to discovery on that score, so the Court has a complete

8

record when considering whether reinstatement is appropriate.

9

Fourth, with respect to Almy, our constitutional structure and the level of responsibility of

10

his position reinforce the conclusion that the Court should not order Almy re-commissioned as an

11

officer in the Air Force. The Constitution provides that the President “shall Commission all the

12

Officers of the United States.” U.S. Const. Art. II, § 3. As the Supreme Court has advised, “[i]t

13

is obvious that the commissioning of officers in the Army is a matter of discretion within the

14

province of the President as Commander in Chief.” Orloff, 345 U.S. at 90. This is for good reason

15

– military officers are charged with leading forces, and are responsible for the well-being of troops

16

who report to them. Given that a non-discriminatory process now exists for Almy to seek re-

17

accession, consistent with the manpower needs of the Air Force, it would be particularly

18

inappropriate for the Court to order the Air Force to restore him to his prior position nearly five

19

years after his discharge.
Plaintiffs’ contention that they are entitled to summary judgment and the equitable remedy

20
21

of immediate reinstatement must be rejected.

22

III.

23
24
25

THE COURT SHOULD DENY PLAINTIFFS’ CLAIMS GIVEN PLAINTIFFS’
PREJUDICIAL DELAY IN CHALLENGING THEIR DISCHARGES
In addition to the other equitable and prudential reasons to deny reinstatement, plaintiffs’

claims and requests for relief thereunder are barred by laches, and the Court should reject plaintiffs’
motion or, in the alternative, enter judgment in favor of defendants.

26
27
28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-16Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

Laches is an equitable time limitation on a party’s right to bring suit. Boone v. Mech.

2

Specialties Co., 609 F.2d 956, 958 (9th Cir.1979). To obtain a judgment on this affirmative

3

defense, a defendant must prove both an unreasonable delay by the plaintiff and prejudice to the

4

defendant. Kling v. Hallmark Cards Inc., 225 F.3d 1030, 1036 (9th Cir. 2000) (citing Couveau v.

5

Am. Airlines, 218 F.3d 1078, 1083 (9th Cir. 2000) (citations omitted); see also Neighbors of Cuddy

6

Mountain v. United States Forest Serv., 137 F.3d 1372, 1381 (9th Cir. 1998). Both of these factors

7

are satisfied here.

8

In military discharge cases, a cause of action accrues immediately upon the service

9

member’s discharge. Nichols v. Hughes, 721 F.2d 657, 659 (9th Cir. 1983). Courts have concluded

10

that delays in contesting allegedly wrongful discharges, or contesting the underlying reason for the

11

discharge, of three to four years are unreasonable and inexcusable for the purpose of laches. See

12

e.g. Alligood v. United States, 14 Cl. Ct. 11 (1987) (plaintiff’s four-and-a-half-year delay found to

13

establish the first element of laches); Park v. United States, 10 Cl. Ct. 790, 793 (Cl. Ct. 1986)

14

(plaintiff’s delay in filing four years and eleven months after discharge found to be inexcusable);

15

Ellersick v. United States, No. 466-78, 1979 WL 30806, at *1 (Ct. Cl. Sept. 21, 1979). Almy,

16

Knight, and Loverde waited four-and-a-half years, two-and-a-half years, and more than three years,

17

respectively, to contest their discharges in court. Indeed, plaintiffs’ approach here stands in marked

18

contrast to the approach taken by other Service members who sought to challenge their discharges

19

promptly. See, e.g., Witt, 444 F. Supp. 2d 1138, 1140 (W.D. Wash. 2006) (noting that Major Witt

20

sought a preliminary injunction upon learning that the Air Force had initiated the separation

21

process); Meinhold v., 808 F. Supp. at 1455 (C.D. Cal. 1993) (suit filed promptly after discharge

22

and sought preliminary injunction pending discharge proceedings); Philips v. Perry, 106 F.3d 1420

23

(9th Cir. 1997) (plaintiff sought injunction to present discharge); Fehrenbach v. Dep’t of the Air

24

Force, No. 10-402 (D. Idaho) (same).

25

Defendants have been prejudiced by plaintiffs’ unreasonable delay. Because plaintiffs

26

waited years before challenging their discharges, defendants now must attempt to identify and

27

locate those within plaintiffs’ chains-of-command, many of whom have since transferred to other

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-17Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

units (or are no longer in the military), gather evidence relevant to each individual’s circumstances,

2

and examine plaintiffs’ discharges today based upon facts and circumstances that existed years ago.

3

See Decls. of Feroz A. Assa, United States Air Force and Mark Sakowski, United States Navy,

4

attached. Litigating under heightened scrutiny (as required by Witt) with such stale evidence makes

5

the government’s task more challenging. See Assa Decl. ¶¶ 6-7; Sakowski Decl. ¶ 17.

6

Plaintiffs seek to absolve themselves of responsibility for their delay, suggesting that

7

defendants failed to show that plaintiffs’ discharge would meet the Witt standard and “ignored

8

evidence” that the discharges would actually harm the government’s interests. E.g., Mot. for Partial

9

Summ. J. 14:24, ECF No. 43. As plaintiffs are well aware, however, Witt had not even been

10

decided at the time of two of the discharges (and preceded the third by mere months), and, in any

11

event, plaintiffs were discharged pursuant to a statute that rendered such evidence irrelevant.

12

More to the point, the issues that plaintiffs identify (and that the Ninth Circuit has made

13

relevant in Witt) are the very ones that could have been worked out in litigation had plaintiffs filed

14

a prompt challenge to their discharge, as did (for example) Major Witt. Had plaintiffs done so,

15

thereby indicating their desire to hold the Government to the proof the Ninth Circuit requires,

16

relevant evidence could have been gathered and assessed. Now, for example, it has been some five

17

years since Almy was discharged. The harm to the defendants’ interests in that circumstance is

18

evident.

19

Where, as here, a party “unreasonably delays in filing a suit and as a result harms the

20

defendant,” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121 (2002), the party cannot

21

thereafter maintain suit for equitable relief in light of its prejudicial delay. The Court thus should

22

find that plaintiffs’ claims are barred by laches.

23

IV.

CLAIM XI OF THE FIRST AMENDED COMPLAINT MUST BE DISMISSED

24

Almy asserts that his discharge should be set aside because it was undertaken based upon

25

an improper search of the government-provided computer he was issued for official business. See

26

Claim XI of FAC. Even in a criminal setting where the exclusionary rule is applicable, the

27

presumption is that a military member lacks any expectation of privacy in communications sent and

28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-18Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

received over government computers. United States v. Larson, 66 M.J. 212, 215-216 (C.A.A.F.

2

2008); see also City of Ontario v. Quon, ––– U.S. ––––, 130 S. Ct. 2619, 2628-29, 177 L. Ed. 2d

3

216 (2010) (explaining that the Fourth Amendment does not prohibit a government employer from

4

conducting a reasonable search of its work place). This is particularly so here, where Almy saved

5

personal information to a government owned and provided computer and left that information on

6

the computer when he transferred from the area. Am. Compl. ¶ 29.

7

Almy’s discharge, of course, was an administrative, rather than a criminal matter.

8

The function of military discharge proceedings is to determine eligibility for further military

9

service, not to punish for past wrongs. Garrett v. Lehman, 751 F.2d 997, 1002 (9th Cir. 1985). The

10

inadmissibility of evidence, such as evidence obtained in alleged violation of the Fourth

11

Amendment's exclusionary rule, does not negate an otherwise valid discharge. Id.

12

(holding that exclusionary rule does not extend to administrative discharge proceedings); see also

13

Kindred v. United States, 41 Fed. Cl. 106, 113-114 (1998).

14

Air Force regulations, moreover, specifically state that “all relevant evidence obtained from

15

any search and seizure is admissible” in an officer discharge board. AFI 51-602, paragraph 2.1.3.4

16

Air Force regulations also provide that rules of evidence do not govern administrative discharge

17

boards. AFI 36-3206, paragraph 7.6. Thus, even if the Court were to assume that Almy’s

18

allegations regarding the search of his computer are true, that would not be a basis to negate his

19

otherwise lawful discharge under the DADT statute. This claim thus fails to state a claim upon

20

which relief can be granted, and must be dismissed.

21

V.

22

BECAUSE THE INDIVIDUAL CLAIMS HERE ARE IMPROPERLY JOINED,
THE COURT SHOULD SEVER THE PARTIES’ CLAIMS AND DISMISS THE
CLAIMS OF ALMY AND KNIGHT

23

Even if plaintiffs could overcome the legal hurdles already described, their cases should

24

be severed because the complaint improperly joins three distinct cases that, under Fed. R. Civ.

25
26
27
28

4

Air Force Instructions (“AFI”) are publically available at the Department’s website: www.epublishing.af.mil.
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-19Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

P. 20, should be brought separately. And once the claims are severed, the claims of Almy, and

2

perhaps those of Knight as well, should be dismissed without prejudice, because venue is not

3

proper in this district under 28 U.S.C. § 1391(e).5
Federal Rule of Civil Procedure. 20 provides that: Persons may join in one action as

4
5

plaintiffs if:
(a) they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
(b) any question of law or fact common to all plaintiffs will arise in the action.

6
7
8

Fed. R. Civ. P. 20(a).

9
10
11
12
13
14
15
16
17

Plaintiffs’ claims do not meet the first prong of Rule 20 because the rights they assert do
not arise out of the same transaction or occurrence. In determining whether claims arise under the
same transaction or occurrence, courts use the logical relationship test. See Pochiro v. Prudential
Ins. Co. of Am., 827 F.2d 1246, 1249 (9th Cir.1987). The logical relationship test considers “
‘whether the essential facts of the various claims are so logically connected that considerations of
judicial economy and fairness dictate that all the issues be resolved in one lawsuit.’ ” Pochiro, 827
F.2d at 1249 (quoting Harris v. Steinem, 571 F.2d 119, 123 (2d Cir.1978)). Claims possess
sufficient factual similarity if they “arise out of a systematic pattern of events.” Bautista v. Los
Angeles Cnty., 216 F.3d 837, 842-43 (9th Cir. 2000) (concurring opinion, J. Reinhardt).

18
19
20
21
22
23

In this case, plaintiffs’ claims arose at different times, as the result of different actions, and
from different circumstances. Am. Compl. ¶¶ 17-58. Plaintiffs cannot demonstrate the same
transaction or occurrence “by merely asserting claims under the same right to relief or by alleging
that the claims have a common characteristic.” See Saval v. BL Ltd., 710 F.2d 1027, 1031-1032 (4th
Cir. 1983). Though DADT applied throughout the Department of Defense, plaintiffs were not
discharged at the same time, were not serving in the same units or the same locations, and were

24
25
26
27
28

5

Plaintiffs have not claimed that Knight or Almy would be a “required party” in Loverde’s
challenge under the mandatory joinder provisions of Fed. R. Civ. P. 19. Indeed, given that
challenges to DADT have been brought repeatedly by individual service members without the
participation of other discharged service members, no such claim could be seriously made.
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-20Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

discharged by different Services, each with its own DADT regulations and policies. See AFI

2

36-3206; AFI 36-3208; MILPERSMAN 1910-148 (attached as an enclosure to the Count Decl.);

3

Am. Compl. ¶¶ 17-58. Rather than serving as a convenience, therefore, joining the plaintiffs’ cases

4

complicates this litigation by forcing three distinct sets of facts to be resolved in a single

5

proceeding. Plaintiffs thus do not meet the first prong of permissive joinder.

6

Plaintiffs also fail to meet the second prong, as there are not common questions of law,

7

given the individualized, factual showing now required under the Witt test, or other common

8

questions of fact, to warrant permissive joinder. The fact that the plaintiffs’ claims arise under the

9

same general law does not necessarily satisfy this prong. Turner v. Lafond, No. 09-683, 2009 WL

10

3400987 at *4 (N.D. Cal. Oct. 20, 2009) (quoting Mosley v. Gen. Motors Corp.,, 497 F. 2d 1330,

11

1351 (8th Cir. 1974)). In Coughlin v. Rogers, the 9th Circuit stated:

15

Further, although Plaintiffs’ claims are all brought under the Constitution and the
Administrative Procedure Act, the mere fact that all Plaintiffs’ claims arise under the
same general law does not necessarily establish a common question of law or fact.
Clearly, each Plaintiff's claim is discrete, and involves different legal issues, standards,
and procedures. Indeed, even if Plaintiffs’ cases were not severed, the Court would still
have to give each claim individualized attention. Therefore, the claims do not involve
common questions of law or fact.

16

130 F.3d 1348, 1351 (9th Cir.1997). Similarly, in the recent case of Robinson v. Geithner, No.

17

5 - 01258, 2011 WL 66158, at *9 (E.D. Cal. Jan. 10, 2011), a district court in this Circuit found

18

misjoinder in a Title VII action filed by several IRS employees. The court determined that the

19

claims did not involve the same questions of law or fact because they arose out of separate

20

employment decisions, in different divisions, with different supervisors, and because the plaintiffs

21

suffered different types of adverse employment decisions. Id. As the Court noted, the “fact that

22

all the claims arise under Title VII is simply not enough.” Id.

12
13
14

23
24
25
26

As in Coughlin and Robinson, the primary thrust of plaintiffs’ allegations is identical: their
discharge pursuant to Section 654 is unconstitutional. Am Compl. ¶¶ 17-58. However, the claims
arise out of entirely different factual circumstances. The Ninth Circuit in Witt, moreover,
specifically required an individualized record reagrding the discharge of each of the plaintiffs. See

27
28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-21Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

527 F.3d at 821. Thus, each case would require individualized factual development. As Coughlin

2

and Robinson instruct, the fact that plaintiffs were discharged under the same statute is “not

3

enough.”

4

If the requirements of Rule 20 are not satisfied, “a court, in its discretion, may sever the

5

misjoined parties, so long as no substantial right will be prejudiced by the severance.” Coughlin,

6

130 F.3d at 1350. In such a case, “the court can generally dismiss all but the first named plaintiff

7

without prejudice to the institution of new, separate lawsuits by the dropped plaintiffs.” Id. Here,

8

there will be no prejudice to any party from having the cases severed and heard separately, as

9

plaintiffs’ cases do not present common questions of law or fact, and there is no statute of

10

limitations bar that would prevent the severed parties from refiling their claims. Accordingly,

11

severance – and dismissal without prejudice, see generally Coughlin, 130 F.3d at 1351 (dismissing

12

claims of misjoined plaintiffs) – is the proper resolution.

13

Although Almy is “the first named plaintiff,” 130 F.3d at 1351, it is the claim against

14

Loverde that should remain here. Because Almy resides in the District of Columbia, see Am

15

Compl. ¶ 3, there would be no venue over Almy’s separate claim, see 28 U.S.C. §1391(e), and thus

16

Almy’s lawsuit should be dismissed without prejudice to the institution of a new separate suit in

17

a forum of proper venue.6 It may be appropriate to dismiss Knight’s separate suit without prejudice

18

as well. Although Knight alleges that he resides “within this judicial district,” his last known

19

address on file with the Navy is in La Jolla, California (outside this District), and the Complaint

20

provides no further details of his residence. See Wardlaw Decl. ¶ 5. Under Rule 20 and Section

21

1391(e), only Loverde’s claims are properly before the Court.

22
23
24
25
6

26
27
28

Notably, the conduct that was the basis for Almy’s discharge did not occur within this
district or circuit, Almy was not stationed in this district or circuit, and Almy’s discharge action
was not initiated within this district or circuit.
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-22Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

2

PLAINTIFFS ARE NOT ENTITLED TO PARTIAL SUMMARY JUDGMENT
ON THEIR SUBSTANTIVE DUE PROCESS CLAIMS
Finally, plaintiffs’ motion for summary judgment on their as applied challenges to their

3

discharges (Counts I-III of the FAC) must be denied. See Mot. For Partial Summ. J.; Proposed

4

Order Granting Mot. for Partial, ECF No. 44. In Witt, the Ninth Circuit held that such as applied

5

challenges are subject to a plaintiff-specific, heightened-scrutiny review. The Government

6

respectfully disagrees with the Ninth Circuit’s decision in Witt. The Government recognizes,

7

however, that this Court may be bound by Witt in adjudicating plaintiffs’ as-applied substantive due

8

process challenges. Even so, plaintiffs cannot prevail at this stage even under Witt. Defendants

9

have not had the opportunity to undertake the discovery necessary to address the fact-specific

10

inquiry that the Ninth Circuit decision in Witt requires – the same sort of discovery that the parties

11

conducted on remand in Witt itself. In Witt, the Ninth Circuit set forth its approach for addressing

12

a substantive due process challenge to a discharge under DADT. The Court of Appeals held first

13

that, in light of the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), some

14

form of heightened scrutiny is required. Witt, 527 F.3d at 817. Turning for guidance to Sell v.

15

United States, 539 U.S. 166 (2003), the Ninth Circuit adotped a three-part test. Witt, 527 F.3d at

16

818-19 (citing Sell, 539 U.S. at 179). To justify a discharge that implicates the rights identified in

17

Lawrence, “the government must advance an important governmental interest, the intrusion must

18

significantly further that interest, and the intrusion must be necessary to further that interest.” Witt,

19

527 F.3d at 819.

1

VI.

20

Critically, the Ninth Circuit determined that “this heightened scrutiny analysis is as-applied,

21

rather than facial.” Id. Under this as-applied analysis, generalized justifications about the need for

22

DADT do not suffice; instead, a court must determine “whether a justification exists for the

23

application of the policy as applied” to the particular service member. Id.

24
25
26

When applying the new standard to the plaintiff in Witt, the Court of Appeals made clear
that a well-developed factual record was required to conduct the as-applied analysis. The Ninth
Circuit held that as to the first Witt factor – an important governmental interest – the government

27
28

Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-23Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

had met its burden, as the interests put forth to justify DADT (unit cohesion and morale) constituted

2

an important governmental interest. See id. at 821 (“[i]t is clear that the government advances an

3

important governmental interest.”). But the Court concluded that the inquiry under the second and

4

third factors could not be resolved on the existing record, and the Ninth Circuit remanded the matter

5

to the district court for further factual development. Id.

6

Against this backdrop, plaintiffs’ motion for summary judgment must be denied. The Ninth

7

Circuit has recognized that where summary judgment is sought early in the litigation before a party

8

has had a realistic opportunity to pursue discovery, courts should grant a Rule 56(d) motion “fairly

9

freely.” Burlington N. Santa Fe R.R. Co. v. Assinboine and Sioux Tribes of Fort Peck Reservation,

10

323 F.3d 767, 773 (9th Cir. 2003). That approach is required here. There has been no development

11

of the record at all, and in particular no opportunity to probe the circumstances of plaintiffs’

12

conduct and its impact on the government interests at stake.

13

Plaintiffs argue to the contrary, contending that they are entitled to summary judgment

14

based merely upon their assertion that they are fit to serve in the Armed Forces. The same

15

assertions were present in Witt, see 527 F.3d at 821 n.11, yet the Ninth Circuit determined that a

16

more developed factual record was required. See id., 527 F.3d at 821 (ordering remand to develop

17

factual record to determine whether interests served by § 654 were furthered through plaintiff’s

18

discharge despite plaintiff’s assertion of meritorious military service and assertion that conduct

19

occurred outside of military).

20
21
22

Consistent with the approach that Witt requires, defendants intend to conduct limited
discovery – including both written discovery and depositions – into the impact of plaintiffs’
discharges in light of the governmental interests that the Ninth Circuit identified in Witt.7 Indeed

23
24
7

25
26
27
28

For example, relevant discovery could include inquiry into whether any of the plaintiffs’
conduct involved relationships with subordinate Service members, or that might have otherwise
been disruptive to the effective operation of their unit. Discovery would also include whether
plaintiffs’ discharges were justified under the governmental interests identified by Congress in
enacting DADT. See Witt, 527 F.3d at 819 (recognizing that factual record must be developed
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-24Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

1

this is the exact sort of discovery that the Government sought – and that plaintiff provided without

2

objection – on remand in Witt.

3

Moreover, discovery is particularly appropriate here because of the long lapse in time

4

between discharge and ultimate relief. Almy, for example, was discharged some five years ago.

5

Plaintiffs’ experiences in that intervening period could well affect the appropriateness of equitable

6

relief. Absent completion of the a re-accession process by the plaintiffs, a narrowly-tailored inquiry

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into plaintiffs’ experiences – and in particular the impact of those experiences on fitness for service

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– could be critical to the delicate remedial questions that this Court would face, even if plaintiffs

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were to prevail on the merits of their claims.

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In short, as in Witt, to the extent the Court exercises jurisdiction and proceeds to adjudicate

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plaintiffs’ claims, defendants should be afforded the appropriate opportunity, through discovery,

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to develop the factual record contemplated by the Ninth Circuit in Witt regarding the effect each

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plaintiffs’ conduct had on military readiness and unit cohesion. The Court should thus deny or defer

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any consideration of plaintiffs’ motion for partial summary judgment, in accordance with Witt and

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Fed. R. Civ. P. 56(d). See e.g., Hamilton v. Thompson, No. 09-648, 2011 WL 2580659, at *1 (N.D.

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Cal. June. 29, 2011) (denying summary judgment and permitting party to conduct discovery).

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CONCLUSION

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For the foregoing reasons, the Court should dismiss plaintiffs’ claims or, in the alternative,
grant defendants summary judgment. Alternatively, if plaintiffs’ claims survive, the Court should
deny Plaintiffs’ motion for partial summary judgment with respect to Counts I-III of the FAC, and
permit defendants the opportunity to develop the factual record now required under the Witt
standard.

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before district court linking factual circumstances surrounding an individual discharge and the
governmental interests in enacting the statute). See generally, Fed. R. Civ. P. 56(d) Decl. of
Counsel. It is only when such a factual record is developed through discovery, and presented to
the Court, that each of plaintiffs' discharges can be evaluated under the test set forth in Witt. Id.
at 821.
Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
-25Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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DATED: August 19, 2011

Respectfully submitted,

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IAN HEATH GERSHENGORN
Deputy Assistant Attorney General,
Civil Division

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MELINDA L. HAAG
United States Attorney

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VINCENT M. GARVEY
Deputy Director
/s/ Paul G. Freeborne
PAUL G. FREEBORNE
RYAN B. PARKER
U.S. Department of Justice, Civil Division
Attorneys for the Federal Defendants

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Federal Defendants’ Notice of Motion to Dismiss or, In the Alternative, Cross-Motion for Summary Judgment,
Opposition to Plaintiffs’ Motion for Partial Summary Judgment, And Memorandum in Support,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)