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)

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

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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)
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

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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)

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I, Paul G. Freeborne, hereby declare as follows:

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I am currently employed as Senior Trial Counsel in the Federal Programs Branch,

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Civil Division, United States Department of Justice, and am primary counsel of record for the

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defendants in the above-captioned action. I make this declaration, submitted pursuant to Rule

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56(d) of the Federal Rules of Civil Procedure, based on personal knowledge, and on information

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made available to me in the course of my official duties.

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2.

Plaintiffs have filed a motion for partial summary judgment, ECF Nos. 43 & 44,

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in which they principally argue that “[t]he undisputed material facts demonstrate that the

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military ended [p]laintiffs’ careers without making the constitutionally-required showing” they

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allege is required under the Ninth Circuit’s decision in Witt v. Dep’t of the Air Force, 527 F.3d

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806 (9th Cir. 2008). See ECF No. 43 at 2:16-17.

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3.

As set forth in the defendants’ opposition to plaintiffs’ motion, defendants

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respectfully disagree with the test set forth in Witt, but recognize that the Court may be bound by

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that decision in deciding plaintiffs’ as-applied, substantive due process challenges to their

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discharges.

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4.

Should the Court not dismiss plaintiffs’ action or grant defendants summary

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judgment, defendants will need additional time to develop the factual record envisioned by the

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Ninth Circuit in Witt in order to respond to plaintiffs’ motion for partial summary judgment

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regarding Counts I-III of the First Amended Complaint, ECF No. 38.

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5.

When applying the new standard to Witt, the Ninth Circuit made clear that a

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well-developed factual record was required. The court held that as to the first Witt factor – an

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important governmental interest – the government had facially met its burden, as the interests

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put forth to justify 10 U.S.C. § 654 (unit cohesion and morale) constituted an important

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governmental interest. See Witt, 527 F.3d at 821 (“[i]t is clear that the government advances an

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important governmental interest.”). Discovery would thus be inappropriate as to this prong of

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the Witt test.

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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)

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6.

The second and third prongs of the Witt test, however, require the Court to

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evaluate whether each plaintiff’s discharge “significantly further[ed]” those governmental

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interests” and whether “a less intrusive means must be unlikely to achieve substantially the

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government’s interest.” Id. at 819. The Court concluded that an inquiry under the second and

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third factors could not be resolved on the record before it, which included, as plaintiffs’ motion

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does, see ECF No. 43, the assertion of meritorious service in the military by the service member,

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see 527 F.3d at 821 n. 11. The Ninth Circuit thus remanded the matter to the district court for

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the development of a factual record regarding the second and third prong of the Witt test. Id. at

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821.

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7.

No discovery has been conducted in this case. Given the direction set forth in the

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Witt decision, defendants intend to conduct limited discovery – including both written discovery

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and depositions – into whether plaintiffs’ discharges were justified under the governmental

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interests identified by Congress in enacting 10 U.S.C. § 654. See Witt, 527 F.3d at 819

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(recognizing that factual record must be developed before district court linking factual

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circumstances surrounding an individual discharge and the governmental interests in enacting

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the statute). Relevant discovery would also include inquiry into whether any of the plaintiffs’

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conduct involved relationships with subordinate Service members, or that might have otherwise

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been disruptive to the effective operation of their unit. Defendants would also conduct a

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narrowly-tailored inquiry into plaintiffs’ experiences – and in particular the impact of those

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experiences on fitness for service – in the years since discharge, which could be critical to the

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delicate remedial questions that this Court would face, even if plaintiffs were to prevail on the

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merits of their claims.

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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)

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It is only when such a factual record is developed through appropriate discovery,

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that each of plaintiffs’ discharges can be evaluated under the test set forth in Witt. Id. at

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821. The discovery sought by defendants will be limited and conducted through written

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discovery and depositions.

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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.

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Dated: August 19, 2011

/s/ Paul G. Freeborne_________________
PAUL G. FREEBORNE

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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)

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