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

Filing 70

MOTION for Partial Summary Judgment filed by Michael D. Almy. Motion Hearing set for 8/9/2012 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 7/19/2012. Replies due by 7/26/2012. (Attachments: # 1 Affidavit Almy, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Proposed Order)(Woodmansee, Mark) (Filed on 7/5/2012)

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

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL D. ALMY, JASON D. KNIGHT,
and ANTHONY J. LOVERDE
Plaintiff,

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Case No. 10-cv-05627-RS
PLAINTIFF ALMY’S NOTICE OF
MOTION AND MOTION FOR
PARTIAL SUMMARY JUDGMENT

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,

Date: August 9, 2012
Time: 1:30 p.m.
Courtroom: 3, 17th Floor
Judge: Hon. Richard Seeborg

Defendants.

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION ............................................................................................................... 2

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II.

STATEMENT OF FACTS AND PROCEDURAL HISTORY ........................................... 2

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A.

Mr. Almy’s Record of Service ................................................................................. 2

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B.

The Air Force Searches Mr. Almy’s Personal Computer Files ............................... 4

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C.

Discharge Proceedings ............................................................................................. 5

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D.

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

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III.

LEGAL STANDARD .......................................................................................................... 7

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IV.

MR. ALMY’S DISCHARGE UNDER “DON’T ASK, DON’T TELL” VIOLATED HIS
SUBSTANTIVE DUE PROCESS RIGHTS ....................................................................... 7

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A.

The Substantive Due Process Analysis .................................................................... 8

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1.

Heightened Scrutiny Applies to Discharges Under DADT ......................... 8

2.

Applying Heightened Scrutiny, the Government Could Not Discharge a
Service Member Under DADT Without Showing That the Specific
Discharge Significantly Furthered, and Was Necessary to Further,
Morale, Good Order and Discipline, and Unit Cohesion ............................. 9

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B.

Mr. Almy’s Discharge Under DADT Violated His Substantive Due Process
Rights ....................................................................................................................... 9

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V.

MR. ALMY SHOULD BE REINSTATED TO ACTIVE DUTY STATUS INTO THE
U.S. AIR FORCE ............................................................................................................... 10

VI.

CONCLUSION .................................................................................................................. 11

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TABLE OF AUTHORITIES

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Page(s)
CASES

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Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) .................................................................................................................. 7
Brookside Assocs. v. Rifkin,
49 F.3d 490 (9th Cir. 1995)....................................................................................................... 7
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .................................................................................................................. 7
Dilley v. Alexander,
627 F.2d 407 (D.C. Cir. 1980) ................................................................................................ 10
Harper v. Wallingford,
877 F.2d 728 (9th Cir. 1989)..................................................................................................... 7
Lawrence v. Texas,
539 U.S. 558 (2003) .................................................................................................. 2, 8, 10, 11
Meinhold v. Dep’t of Defense,
34 F.3d 1469 (9th Cir. 1994)................................................................................................... 11

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Washington v. Garrett,
10 F.3d 1421 (9th Cir. 1993)................................................................................................... 11
Witt v. Dep’t of the Air Force,
527 F.3d 806 (9th Cir. 2008)....................................................................................... 2, 8, 9, 10
Witt v. Dep’t of the Air Force,
No. C06-5195-RBL, Docket No. 164 (W.D. Wash. Sept. 24, 2010) ...................................... 11

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STATUTES
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10 U.S.C. § 654 ............................................................................................................................... 9
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Fed. R. Civ. P. 56(a)........................................................................................................................ 7
Fed. R. Civ. P. 56(c)(1) ................................................................................................................... 7

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NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT on August 9, 2012, at 1:30 p.m. or as soon thereafter as
the matter may be heard before the Honorable Richard Seeborg, in the District Court for the
Northern District of California, in Courtroom 3 – 17th Floor, plaintiff Michael D. Almy will and
hereby does move for partial summary judgment as to the first cause of action in the First
Amended Complaint.
This motion is made pursuant to Federal Rule of Civil Procedure 56(a), and is based upon
this notice of motion and motion, the accompanying memorandum of points and authorities, the
declaration of Michael D. Almy, and the other pleadings and papers on file in this action, and
such other evidence and argument as may subsequently be presented to the Court.

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RELIEF SOUGHT
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Plaintiff Almy respectfully seeks the following relief from this Court: summary judgment
in favor of Plaintiff Almy on the first cause of action in the First Amended Complaint; and an
order reinstating plaintiff to active duty in the U.S. Air Force.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF ALMY’S MOTION FOR PARTIAL SUMMARY JUDGMENT

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I.

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This action arises out of the unlawful discharge of plaintiff Michael D. Almy from the

INTRODUCTION

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U.S. Air Force under the federal law commonly referred to as “Don’t Ask, Don’t Tell”

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(“DADT”). Mr. Almy is a highly decorated veteran who served for thirteen years before he was

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discharged in 2006.
In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court recognized a protected

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substantive due process right to engage in private consensual sexual conduct with any adult,

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including one of the same gender, without government intervention. The discharge of a service

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member under DADT impaired this right. The Ninth Circuit held in Witt v. Department of the Air

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Force, 527 F.3d 806 (9th Cir. 2008), that in order to discharge any service member under DADT,

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Lawrence placed the burden on the military to prove that the discharge significantly furthers, and

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is necessary to further, the military’s interest in maintaining morale, good order and discipline,

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and unit cohesion. The undisputed material facts demonstrate that the military ended Mr. Almy’s

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career without making this constitutionally required showing. Mr. Almy’s discharge proceedings

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and subsequent discharge violated his substantive due process rights. Mr. Almy therefore

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requests that this Court grant partial summary judgment on his as-applied substantive due process

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claim.

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Under the Repeal Act, which became law in late 2010, DADT was repealed on

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September 20, 2011. The repeal did not render this case moot. Although gays and lesbians are

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no longer barred from serving openly in the armed forces, the Department of Defense has not

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willingly readmitted Mr. Almy. Consequently, Mr. Almy further requests that the Court enter an

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order reinstating him to active duty in the U.S. Air Force.

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II.

STATEMENT OF FACTS AND PROCEDURAL HISTORY
A.

Mr. Almy’s Record of Service

In 1992, Mr. Almy graduated from Air Force ROTC as a distinguished graduate, in the
top ten percent of all graduates nationwide, and entered active duty the following year.
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(Almy Decl. ¶¶ 2-3.) In 1998, Mr. Almy was named Officer of the Year for his unit of nearly

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1,000 people. (Id. ¶ 5.)

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In September of 1998, Mr. Almy began the first of his four deployments to the Middle

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East, where he supported Operations Desert Fox, Southern Watch, and Iraqi Freedom.

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(Id. ¶¶ 6, 7, 11.) During his third deployment to the Middle East, Mr. Almy was directly

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responsible for facilitating communication activation at newly established bases throughout the

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theater in Jordan, Saudi Arabia, and Iraq. (Id. ¶ 9.)

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When he returned from Saudi Arabia in 2003, Mr. Almy was promoted to the rank of
Major and accepted a position as the Chief of Maintenance at the 606th Air Control Squadron

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(“ACS”), where he was in charge of a directorate of 180 troops. (Id. ¶ 10.) In September 2004,

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Mr. Almy’s unit deployed to three locations in Iraq in support of Operation Iraqi Freedom.

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(Id. ¶ 11.) During this deployment, Mr. Almy’s unit controlled the airspace over two-thirds of

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Iraq, and his troops maintained the communications systems necessary for that mission. This

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included air support for the liberation of Fallujah, Iraq. Mr. Almy’s base came under daily mortar

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attacks, one of which struck one of his Airmen and also caused significant damage to their

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equipment. (Id.) Towards the end of this deployment to Iraq, Mr. Almy received the Leo

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Marquez Field Grade Officer of the Year Award, which recognized Mr. Almy as one of the top

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officers in his career field for the entire Air Force. (Id. ¶ 12.)

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Mr. Almy received numerous other military awards and decorations during his service in

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the Air Force. These accolades include the Joint Service Commendation Medal, three Air Force

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Commendation Medals, the Air Force Achievement Medal, the Air Force Outstanding Unit

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Award, the Air Force Organizational Excellence Award, the Combat Readiness Medal, the

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National Defense Service Medal, the Armed Forces Expeditionary Medal, the Iraq Campaign

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Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service

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Medal, the Humanitarian Service Medal, the Air Force Overseas Long Tour Ribbon, the Air

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Force Longevity Service Award, the Small Arms Expert Marksmanship Ribbon, the Air Force

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Training Ribbon, the Company Grade Officer of the Year award, the Senior Communications and

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Information Badge, and a recognition as Distinguished Air Force ROTC Graduate. (Id. ¶ 13.)
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Mr. Almy also received uniformly high praise from his military superiors and evaluators

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during performance evaluations and promotion recommendations. For example, when Mr. Almy

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served as the Chief of Maintenance in the 606th ACS at Spangdahlem Air Base, a supervisor

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commented about Mr. Almy: “Outstanding leader of my largest directorate; immediate impact on

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morale/mission—maintenance never stronger . . . Complete leader . . . Superb leader ready for

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command; simply incredible results in every endeavor.” (Id. ¶ 14.)

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B.

The Air Force Searches Mr. Almy’s Personal Computer Files

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

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Airmen from using private email accounts. (Id. ¶ 15.) Airmen in Iraq were forced to use

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government-provided computers and email accounts for personal correspondence. (Id.)

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

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personal correspondence for “morale, health, and welfare purposes.” (Id.) Mr. Almy therefore

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used his Air Force email account for personal emails. (Id.) Nonetheless, Mr. Almy took steps to

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segregate his work and personal correspondence. (Id.)

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Shortly after Mr. Almy left Iraq in January 2005, during a purportedly “routine” review of

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his computer files, another member of the Air Force found personal emails in a separate folder

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labeled “Friends,” including at least one email from Mr. Almy to another man discussing same-

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sex conduct. (Id. ¶ 16.) The search was conducted by someone outside Mr. Almy’s chain of

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command. (Id.) In March 2005, these emails were brought to the attention of Mr. Almy’s

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commander. (Id.)

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A few days later, the commander confronted Mr. Almy with the emails, read him the

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DADT law, and pressured him to acknowledge that he is gay. (Id. ¶ 17.) By mid-June 2005, the

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Air Force had circulated a Discharge for Cause memorandum indicating that Mr. Almy was being

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considered for discharge under DADT. (Id. ¶ 18.)

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

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

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military—was suspended, and part of his pay was terminated. (Id. ¶¶ 19, 20.) Approximately a

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year after Mr. Almy was relieved of his command duties, his Wing Commander formally
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recommended to the Air Force Promotion Board that Mr. Almy be promoted to Lieutenant

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Colonel “below promotion zone”—in other words, ahead of his peers—even though the Air Force

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was actively pursuing Mr. Almy’s discharge. (Id. ¶ 28.)

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C.

Discharge Proceedings

On July 7, 2005, Mr. Almy was sent a notification of a Show-Cause Action Initiated under

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AFI 36-3206. This notification required Mr. Almy to establish why he should be retained on

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Active Duty. In February 2006, Mr. Almy received formal notice that administrative board

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proceedings would be held to determine whether to recommend a discharge under DADT.

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(Id. ¶ 21.) When Mr. Almy was notified that a Board of Inquiry was being convened, he decided

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to conditionally waive his rights to this Board because the decision of the Board would be

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reviewed by the same person who would have the ultimate deciding authority even without the

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hearing. (Id. ¶ 22.) Mr. Almy requested that he be allowed to submit statements on his own

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behalf as part of the conditional waiver. (Id. ¶ 23.)

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Along with a personal statement, Mr. Almy submitted letters written by many of his

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colleagues—both superiors and subordinates—who resoundingly supported his retention.

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(Id. ¶ 24.) For instance, a retired Army Colonel wrote, “My view is that Major Almy has been,

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and will continue to be an excellent officer.” (Id. ¶ 26.) The Lieutenant Colonel who was Mr.

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Almy’s squadron commander during the discharge process also wrote, “I am convinced the Air

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

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[violations of DADT].” (Id.)

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At the end of the administrative separation proceedings, the Air Force discharged Mr.

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Almy under DADT based on the contents of his personal emails. He received an Honorable

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Discharge dated July 21, 2006. (Id. ¶ 30.)

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Mr. Almy was discharged from the Air Force against his will. (Id. ¶ 31.) Had he not been

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

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(Id.) Mr. Almy wishes to be reinstated into active duty in the Air Force so he can once again

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

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D.

Procedural History

On December 13, 2010, Plaintiffs Almy, Jason D. Knight, and Anthony J. Loverde

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(collectively, “Plaintiffs”) filed a complaint asking this Court to right the Constitutional wrong

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they each suffered. 1 ECF No. 1. Rather than respond to the Complaint on the merits, the

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Government moved to transfer the action to the Court of Federal Claims or, in the alternative, to

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dismiss. ECF No. 19. The Government argued that Plaintiffs’ claims for credit towards

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retirement for the time each would have served had they not been discharged were “monetary

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remedies” over which this Court had no jurisdiction. Id.

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Plaintiffs informed the Government that they primarily wished to return to service and

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that, to hasten this cause, they would disavow any perceived “monetary remedies” in this action.

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But twice having asked the Government for permission to amend their Complaint, and twice

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having been refused, Plaintiffs were forced to seek leave to amend from this Court. ECF No. 30.

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On May 3, 2011, the Court granted Plaintiffs’ motion for leave to amend and denied the

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Government’s motion to transfer. ECF No. 37.

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Plaintiffs filed their First Amended Complaint on May 4, 2011. ECF No. 38. On July 27,

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2011, after the Government’s time to appeal the denial of its motion to transfer expired, Plaintiffs

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filed a motion for partial summary judgment. ECF No. 43. The motion was based on the same

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grounds and sought the same relief as does this motion, except that Plaintiffs brought the July 27

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motion on behalf of all three individual plaintiffs. See id. On August 19, 2011, the Government

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filed a motion to dismiss or, in the alternative, a cross-motion for summary judgment and

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opposition to Plaintiffs’ motion for partial summary judgment. ECF No. 49.

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At a Case Management Conference on August 25, 2011, it was suggested that Plaintiffs

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might achieve their goal of returning to service more quickly through negotiations with the

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Government. Plaintiffs agreed to pursue that course of action. The Court therefore denied the

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parties’ cross-motions without prejudice. ECF No. 55. Nearly a year has since passed, however,

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At that time, DADT had not yet been repealed. Even now, the fully implemented repeal
has not provided a remedy for Mr. Almy.

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and the Government has only reinstated Plaintiffs Knight and Loverde to active service. Mr.

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Almy has yet obtain a satisfactory resolution to his Constitutional injury.

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III.

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Summary judgment or partial summary judgment should be granted if the Court finds

LEGAL STANDARD

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“that there is no genuine dispute as to any material fact and the movant is entitled to judgment as

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a matter of law.” Fed. R. Civ. P. 56(a). To prevail on a motion for summary judgment, the

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moving party must show that there are no triable issues of fact as to matters upon which it has the

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burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The “mere

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existence of some alleged factual dispute between the parties will not defeat an otherwise

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properly supported motion for summary judgment; the requirement is that there be no genuine

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issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis

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omitted).

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Once the moving party has met its initial burden, an opposing party must set forth facts

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showing the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(c)(1); see also

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Celotex, 477 U.S. at 322 n.3. While the Court must construe all evidence and reasonable

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inferences drawn from the evidence in favor of the non-moving party, see Anderson, 477 U.S. at

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261 n.2; Brookside Assocs. v. Rifkin, 49 F.3d 490, 492-93 (9th Cir. 1995), mere disagreement or

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the bald assertion that a genuine issue of material fact exists does not preclude the use of

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summary judgment. See Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989).

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IV.

MR. ALMY’S DISCHARGE UNDER “DON’T ASK, DON’T TELL”
VIOLATED HIS SUBSTANTIVE DUE PROCESS RIGHTS

To constitutionally discharge any service member under DADT, the military was required
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to prove that the application of DADT in that specific instance significantly furthered, and was
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necessary to further, the government’s interest in maintaining military morale, good order and
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discipline, and unit cohesion. Here, the undisputed facts show that the military discharged Mr.
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Almy without making the constitutionally required showing. The discharge therefore violated
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Mr. Almy’s substantive due process rights as a matter of law.
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A.

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The Substantive Due Process Analysis
1.

Heightened Scrutiny Applies to Discharges Under DADT

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

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constitutional right to engage in private, consensual sexual conduct with any adult, including one

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of the same gender, without government interference. Id. at 578. This substantive due process

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right reflects the “promise of the Constitution that there is a realm of personal liberty which the

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government may not enter.” Id. (quoting Planned Parenthood v. Casey, 505 U.S. 833, 847

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(1992)). Having recognized this right, the Lawrence Court struck down a Texas statute that made

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consensual homosexual sodomy a crime because the law “furthers no legitimate state interest

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which can justify its intrusion into the personal and private life of the individual.” Lawrence, 539

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U.S. at 578.

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As the Ninth Circuit explained in Witt v. Dep’t of the Air Force, “the Supreme Court

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applied a heightened level of scrutiny in Lawrence.” 527 F.3d 806, 817 (9th Cir. 2008). Under

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this heightened scrutiny analysis,

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when the government attempts to intrude upon the personal and
private lives of homosexuals, in a manner that implicates the rights
identified in Lawrence, [1] the government must advance an
important governmental interest, [2] the intrusion must significantly
further that interest, and [3] the intrusion must be necessary to
further that interest. In other words, for the third factor, a less
intrusive means must be unlikely to achieve substantially the
government’s interest.

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Id. at 819.
Any discharge of a service member under DADT required this heightened level of
scrutiny because it “implicates the rights identified in Lawrence.” Id. Furthermore, the inquiry
“is as-applied rather than facial.” Id. at 819. A court must decide “not whether DADT ha[d]
some hypothetical, post hoc rationalization in general, but whether a justification exist[ed] for the
application of the policy” to the individual service member. Id.

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2.

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Applying Heightened Scrutiny, the Government Could Not
Discharge a Service Member Under DADT Without Showing
That the Specific Discharge Significantly Furthered, and Was
Necessary to Further, Morale, Good Order and Discipline, and
Unit Cohesion

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With respect to the first prong of the heightened scrutiny analysis, 10 U.S.C. § 654 clearly

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stated the governmental interest advanced in support of DADT: protection of “the high standards

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of morale, good order and discipline, and unit cohesion that are the essence of military

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capability.” 10 U.S.C. § 654(a)(15). Witt acknowledged “that the government advances an

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important governmental interest” because “DADT concerns the management of the military.”

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527 F.3d at 821. Accordingly, the inquiry focuses on the second and third prongs. The

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government could not discharge a service member under DADT absent a showing that “the

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application of DADT specifically to” the service member significantly furthered, and was

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necessary to further, the government’s stated interest in morale, good order and discipline, and

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unit cohesion. Id. (emphasis added). A discharge under DADT is unconstitutional if the

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government did not meet this burden. In discharging Mr. Almy, the military failed to offer any

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evidence to satisfy its burden.

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B.

Mr. Almy’s Discharge Under DADT Violated His Substantive Due
Process Rights

The undisputed material facts demonstrate that Mr. Almy’s discharge under DADT cannot
survive heightened scrutiny. At no point before the 2006 discharge did the Air Force meet, or
even attempt to meet, its burden of proving that the discharge significantly furthered, and was
necessary to further, the government’s interests in morale, good order and discipline, and unit
cohesion. Rather, the Air Force impermissibly placed the burden on Mr. Almy to show that he
should have been retained through its policies generally and through a Show-Cause Action
initiated under AFI 36-3206, specifically. (See Almy Decl. ¶ 21.)
The Air Force ignored evidence that Mr. Almy’s discharge would actually harm the
government’s interests in maintaining morale, good order and discipline, and unit cohesion.
Although the United States Constitution did not require Mr. Almy to demonstrate that he was an
asset to the Air Force, the numerous references attached to his Conditional Waiver showed that

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Mr. Almy’s peers and superiors firmly believed that he was an exceptional Air Force officer.

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(See id. ¶ 26.) For example, one senior Air Force officer wrote that he was convinced “the Air

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

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[violations of DADT].” (Id.) Evidence like this, submitted on behalf of Mr. Almy, establishes

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that Mr. Almy’s discharge could not have furthered the government’s interests. The Air Force

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offered no evidence to the contrary.

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More tellingly, perhaps, is the fact that, during the deployment when the allegedly harmful

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emails were sent, Mr. Almy received the Leo Marquez Field Grade Officer of the Year Award,

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

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(Almy Decl. ¶ 12.) Similarly, Mr. Almy’s Wing Commander formally recommended Mr. Almy

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for a promotion above his peers—even while discharge proceedings were pending. (See id. ¶ 28.)

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The evidence demonstrates that the Air Force believed that Mr. Almy was a stellar officer, and

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that he was an asset, rather than a detriment, to its interests.

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The Air Force therefore failed to meet its constitutional burden under Lawrence. See Witt,

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527 F.3d at 821. As a result, the discharge proceedings and subsequent discharge of Mr. Almy

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violated his right to substantive due process as a matter of law.

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V.

MR. ALMY SHOULD BE REINSTATED TO ACTIVE DUTY STATUS
INTO THE U.S. AIR FORCE

As demonstrated above, the undisputed material facts establish that Mr. Almy was
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unconstitutionally discharged under DADT. The remedy he seeks for these constitutional
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violations is reinstatement to active duty status in the U.S. Air Force.
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Judicial relief for military service members who have been wrongfully discharged is
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premised on the central principle of making the injured service members “whole.”
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Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir. 1980). A court’s remedy must attempt to return
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a successful plaintiff to the position he would have occupied “but for” his illegal release from
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duty. See id. Here, but for his illegal release from duty, Mr. Almy would still be serving in the
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military and would have continued to do so in the future. (Almy Decl. ¶ 31.) He now intends to
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resume his military service at the earliest possible opportunity. (Almy Decl. ¶ 31.) Accordingly,
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Mr. Almy should be reinstated into active duty. See Meinhold v. Dep’t of Defense, 34 F.3d 1469,

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1480 (9th Cir. 1994) (reinstating wrongfully discharged officer to the Navy);

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Washington v. Garrett, 10 F.3d 1421, 1431 (9th Cir. 1993) (ordering reinstatement with back pay

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and benefits); Witt v. Dep’t of the Air Force, No. C06-5195-RBL, Docket No. 164 (Findings of

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Fact and Conclusions of Law) (W.D. Wash. Sept. 24, 2010) (ordering reinstatement for wrongful

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discharge under DADT).

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VI.

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The undisputed material facts demonstrate that the military discharged Mr. Almy under

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DADT without proving that his discharge significantly furthered, and was necessary to further,

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the government’s interest in maintaining morale, good order and discipline, and unit cohesion.

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The absence of this constitutionally required showing violated Mr. Almy’s substantive due

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process rights under the Fifth Amendment to the U.S. Constitution, as recognized in Lawrence.

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Mr. Almy therefore respectfully requests that the Court grant his motion for partial summary

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judgment and order that he be reinstated to active duty in the U.S. Air Force.

CONCLUSION

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Dated: July 5, 2012

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

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By: /s/ M. Andrew Woodmansee
M. ANDREW WOODMANSEE
[e-mail]
Attorneys for Plaintiffs
MICHAEL D. ALMY, JASON D. KNIGHT
AND ANTHONY J. LOVERDE

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