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

Filing 50

EXHIBITS re 49 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment, and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byDepartment of the Air Force, Department of the Navy, Michael B. Donley, Robert M. Gates, Ray Mabus, United States Department of Defense. (Attachments: # 1 Exhibit)(Related document(s) 49 ) (Parker, Ryan) (Filed on 8/19/2011)

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Declaration of Kathy Wardlaw, PhD, Department of the Navy, with Enclosures Declaration of Feroz A. Essa, Department of the Air Force Declaration of Mark Sakowski, Department of the Navy Federal Rule of Civil Procedure 56(d) Declaration of Counsel, Paul G. Freeborne 1 2 3 4 5 6 7 8 9 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: (202) 353-0543 Facsimile: (202) 616-8460 E-mail: paul.freeborne@ 10 Attorneys for Federal Defendants 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 13 14 15 16 17 18 19 20 21 22 23 ) ) ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES DEPARTMENT OF ) DEFENSE, ROBERT M. GATES, Secretary of ) Defense; DEPARTMENT OF THE AIR FORCE; ) MICHAEL B. DONLEY, Secretary, Department ) of the Air Force; DEPARTMENT OF THE ) NAVY; and RAY MABUS, Secretary, ) Department of the Navy, ) ) Defendants. ) ) ) ) MICHAEL D. ALMY, ANTHONY J. LOVERDE, and JASON D. KNIGHT, Case No. 3:10-cv-5627 (RS) FED. R. CIV. P. 56(d) DECLARATION OF COUNSEL, PAUL G. FREEBORNE 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 24 25 26 27 28 Fed. R. Civ. P. 56(d) Declaration of Counsel, Paul G. Freeborne, Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS) 1 I, Paul G. Freeborne, hereby declare as follows: 2 1. I am currently employed as Senior Trial Counsel in the Federal Programs Branch, 3 Civil Division, United States Department of Justice, and am primary counsel of record for the 4 defendants in the above-captioned action. I make this declaration, submitted pursuant to Rule 5 56(d) of the Federal Rules of Civil Procedure, based on personal knowledge, and on information 6 made available to me in the course of my official duties. 7 2. Plaintiffs have filed a motion for partial summary judgment, ECF Nos. 43 & 44, 8 in which they principally argue that “[t]he undisputed material facts demonstrate that the 9 military ended [p]laintiffs’ careers without making the constitutionally-required showing” they 10 allege is required under the Ninth Circuit’s decision in Witt v. Dep’t of the Air Force, 527 F.3d 11 806 (9th Cir. 2008). See ECF No. 43 at 2:16-17. 12 3. As set forth in the defendants’ opposition to plaintiffs’ motion, defendants 13 respectfully disagree with the test set forth in Witt, but recognize that the Court may be bound by 14 that decision in deciding plaintiffs’ as-applied, substantive due process challenges to their 15 discharges. 16 4. Should the Court not dismiss plaintiffs’ action or grant defendants summary 17 judgment, defendants will need additional time to develop the factual record envisioned by the 18 Ninth Circuit in Witt in order to respond to plaintiffs’ motion for partial summary judgment 19 regarding Counts I-III of the First Amended Complaint, ECF No. 38. 20 5. When applying the new standard to Witt, the Ninth Circuit made clear that a 21 well-developed factual record was required. The court held that as to the first Witt factor – an 22 important governmental interest – the government had facially met its burden, as the interests 23 put forth to justify 10 U.S.C. § 654 (unit cohesion and morale) constituted an important 24 governmental interest. See Witt, 527 F.3d at 821 (“[i]t is clear that the government advances an 25 important governmental interest.”). Discovery would thus be inappropriate as to this prong of 26 the Witt test. 27 28 Fed. R. Civ. P. 56(d) Declaration of Counsel, Paul G. Freeborne, Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS) 1 6. The second and third prongs of the Witt test, however, require the Court to 2 evaluate whether each plaintiff’s discharge “significantly further[ed]” those governmental 3 interests” and whether “a less intrusive means must be unlikely to achieve substantially the 4 government’s interest.” Id. at 819. The Court concluded that an inquiry under the second and 5 third factors could not be resolved on the record before it, which included, as plaintiffs’ motion 6 does, see ECF No. 43, the assertion of meritorious service in the military by the service member, 7 see 527 F.3d at 821 n. 11. The Ninth Circuit thus remanded the matter to the district court for 8 the development of a factual record regarding the second and third prong of the Witt test. Id. at 9 821. 10 7. No discovery has been conducted in this case. Given the direction set forth in the 11 Witt decision, defendants intend to conduct limited discovery – including both written discovery 12 and depositions – into whether plaintiffs’ discharges were justified under the governmental 13 interests identified by Congress in enacting 10 U.S.C. § 654. See Witt, 527 F.3d at 819 14 (recognizing that factual record must be developed before district court linking factual 15 circumstances surrounding an individual discharge and the governmental interests in enacting 16 the statute). Relevant discovery would also include inquiry into whether any of the plaintiffs’ 17 conduct involved relationships with subordinate Service members, or that might have otherwise 18 been disruptive to the effective operation of their unit. Defendants would also conduct a 19 narrowly-tailored inquiry into plaintiffs’ experiences – and in particular the impact of those 20 experiences on fitness for service – in the years since discharge, which could be critical to the 21 delicate remedial questions that this Court would face, even if plaintiffs were to prevail on the 22 merits of their claims. 23 24 25 26 27 28 Fed. R. Civ. P. 56(d) Declaration of Counsel, Paul G. Freeborne, Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS) 2 1 8. It is only when such a factual record is developed through appropriate discovery, 2 that each of plaintiffs’ discharges can be evaluated under the test set forth in Witt. Id. at 3 821. The discovery sought by defendants will be limited and conducted through written 4 discovery and depositions. 5 6 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief. 7 8 Dated: August 19, 2011 /s/ Paul G. Freeborne_________________ PAUL G. FREEBORNE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. R. Civ. P. 56(d) Declaration of Counsel, Paul G. Freeborne, Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS) 3

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