Fehrenbach v. Department of the Air Force et al

Filing 2

APPLICATION for Temporary Restraining Order and Preliminary Injunction ( Responses due by 9/7/2010)M Andrew Woodmansee, Jessica A Roberts, James J Cekola, Aramide O Fields appearing for Plaintiff Victor J Fehrenbach. (Attachments: # 1 Memorandum of Points and Authorities in Support of Application fro Temporary Restraining Order and Preliminary Injunction, # 2 Declaration of M. Andrew Woodmansee in support of Application for Temporary Restraining Order and Preliminary Injunction, # 3 Declaration of Lieutenant Colonel Victor J. Fehrenbach in support of his Application for Temporary Restraining Order and Preliminary Injunction, # 4 Certificate of Service)

M. ANDREW WOODMANSEE (CA SBN 201780) mawoodmansee@mo fo.com ARAMIDE O. FIELDS (CA SBN 239692) afields@mo fo.com JAMES J. CEKOLA (CA SBN 259443) jceko la@mo fo.com JESSICA A. ROBERTS (CA SBN 265570) jroberts@mo fo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130-2040 Telephone: [phone] Facsimile: 858.720.5125 AARON D. TAX (DC SBN 501597) [e-mail] JOHN GOODMAN (DC SBN 383147) [e-mail] SERVICEMEMBERS LEGAL DEFENSE NETWORK P.O. Box 65301 Washington, DC 20035-5301 Telephone: [phone] ext. 10 Facsimile: 202.797.1635 Attorneys for Plaintiff LIEUTENANT COLONEL VICTOR J. FEHRENBACH UNITED STATES DISTRICT COURT DISTRICT OF IDAHO LIEUTENANT COLONEL VICTOR J. FEHRENBACH, Plaint iff, v. DEPARTMENT OF THE AIR FORCE; ROBERT M. GATES, Secretary of Defense; MICHAEL B. DONLEY, Secretary, Department of the Air Force; LT. GENERAL GLENN SPEARS, Twelfth Air Force Commander, COL. RONALD BUCKLEY, 366th Fighter Wing Commander, Defendants. Case No. DECLARATION OF M. ANDREW WOODMANSEE IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

sd-522834

1

I, M. Andrew Woodmansee, declare: 1. I am a member in good standing of the state bar of California and am a partner

with the law firm of Morrison & Foerster LLP, which represents Plaintiff Lieutenant Colonel Victor J. Fehrenbach in this action. I have personal knowledge of the facts stated herein and, if called as a witness, I could and would testify competently as to them. 2. Attached hereto as Exhibit 1 is a true and correct copy of the Ruling on Motion

For Declaratory Judgment, dated February 9, 2009 from the matter of the United States v. Lieutenant Colonel Victor J. Fehrenbach. 3. Attached hereto as Exhibit 2 is a true and correct copy of a news transcript titled,

"DOD News Briefing with Secretary Gates and Adm. Mullen from the Pentagon" dated March 25, 2010. 4. Attached hereto as Exhibit 3 is a true and correct excerpt of the Summary of

Changes Revisions to the "Don't Ask, Don't Tell" regulations, prepared by the Office of the Secretary of Defense. 5. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the

Department of Defense Authorization For Appropriations For Fiscal Year 2011, And To Receive Testimony Relating To The "Don't Ask, Don't Tell" Policy, dated February 2, 2010. 6. Attached hereto as Exhibit 5 is a true and correct copy of an article written by Om

Prakash titled The Efficacy of "Don't Ask, Don't Tell", JFQ, 4th Quarter 2009, issue 55. 7. Attached hereto as Exhibit 6 is a true and correct copy of excerpts from the

Hearing To Receive Testimony Relating To The "Don't Ask, Don't Tell" Policy, dated March 18, 2010.

sd-522834

2

8.

Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the report

titled Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, published by RAND (1993). 9. Attached hereto as Exhibit 8 is a true and correct copy of the Air Force Instruction

36-2909 ("AFI 36-2909"), dated May 1, 1999. 10. Attached hereto as Exhibit 9 is a true and correct copy of the Air Force Instruction

36-3206 ("AFI 36-3206"), dated June 9, 2004. 11. Attached hereto as Exhibit 10 is a true and correct copy of the news article written

by Bruce Rolfsen titled, "They asked, he told, but he might get to stay" MilitaryTimes (Oct. 24, 2009). 12. Attached hereto as Exhibit 11 is a true and correct copy of a transcript titled,

"Remarks By The President At LGBT Pride Month Reception", dated June 29, 2009. 13. On August 4, 2010, I received an email from the Honorable Charles A.

Blanchard, General Counsel to the Secretary of the Air Force. A true and correct copy of that email chain is attached hereto as Exhibit 12. In that email, Mr. Blanchard confirmed that the Air Force Personnel Board had met and made a recommendation to the Secretary's designated separation authority in this case (the MRB). Notwithstanding Mr. Blanchard's statements to the contrary, Air Force regulations clearly state that, had the AFPB concluded that Lt. Col. Fehrenbach should be retained, no action by the Secretary or the MRB would be required. AFI 36-3206 Chapter 6.10 ("When the AFPB recommends retaining the respondent, HQ /// /// ///

sd-522834

3

AFPC/DPRS advises t h e respondent, t h r o u g h t h e SeA, t h a t t h e A F P B ' s determination ends the a c t i o n . " ) ; a n d C h a p t e r 6.10.1 ( " W h e n t h e A F P B r e c o m m e n d s r e m o v a l f r o m a c t i v e d u t y , discharge, o r o t h e r action, t h e A F P B s e n d s t h e c a s e t o t h e S A F . " )

I declare u n d e r p e n a l t y o f p e r j u r y u n d e r t h e laws o f t h e U n i t e d States o f A m e r i c a t h a t t h e
foregoing i s true a n d correct a n d t h a t this declaration w a s e x e c u t e d o n A u g u s t 10, 2010, i n San D i e g o , California.

ODMANSEE