Witt v. Department of the Air Force et al

Filing 142

Proposed Findings of Fact by Defendants Department of the Air Force, Donald H Rumsfeld, Mary L Walker, Michael W Wynne (Phipps, Peter)

Witt v. Department of the Air Force et al

Doc. 142

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Judge Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

No. C06-5195 RBL DEFENDANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Pursuant to the Court's Pretrial Scheduling Order of September 2, 2009 (Docket #54), defendants hereby submit their proposed findings of fact and conclusions of law for the trial in the above-captioned case, set to commence on September 13, 2010. PROPOSED FINDINGS OF FACT 1. Plaintiff actively participated as an Air Force Reserve flight nurse in the 446th

Aeromedical Evacuation Squadron (AES) at McChord Air Force Base from December 1995 to November 2004. 2. 3. 4. The 446th AES has a reputation for excellence in flight nursing performance. While in the 446th AES, plaintiff was subject to worldwide deployment. Those deployments could be with service members in and outside of her specific

squadron ­ or even outside of the Air Force.
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dockets.Justia.com

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5.

The living and working conditions on deployment could involve limited privacy;

nonetheless, members of 446th AES volunteer for deployment assignments. 6. McChesney. 7. At the time that plaintiff began her relationship with Laurie McChesney, Laurie Starting in October 2003, plaintiff engaged in a sexual relationship with Laurie

McChesney was married to Pat McChesney; the McChesneyes later divorced. 8. In June 2004, Pat McChesney sent an email to the Air Force Chief of Staff stating

that plaintiff had engaged in such a relationship with his then-wife and that he had subsequently filed for divorce. 9. The Air Force subsequently began an investigation of plaintiff, which determined

that in addition to the relationship with Laurie McChesney, plaintiff had been involved in a sixyear relationship with another woman, Tiffany Jenson. 10. Also, in the course of her Air Force career, plaintiff had sexual relationships with

two female Air Force officers. 11. Furthermore, in at least two instances prior to her discharge, plaintiff told ­ or at a

minimum acknowledged to ­ enlisted members of her squadron that she was a lesbian, thus placing them in a position of having to choose between loyalty to plaintiff as a superior officer and controlling Air Force policy. 12. Plaintiff was suspended from earning pay or retirement points in the Air Force

Reserve in November 2004, and the discharge process began. 13. Plaintiff requested and received a full discharge board hearing in which she was

represented by both civilian and military counsel. 14. At the hearing, which was conducted on September 28 and 29, 2006, plaintiff

was given the opportunity to make a sworn statement subject to cross-examination or an unsworn statement without the possibility for cross-examination, and she made an unsworn statement; she also submitted documents and statements from others on her behalf. 15. After evidence of plaintiff's statements and acts was before the discharge board,

on September 29, 2006, the discharge board recommended that plaintiff be discharged under the
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Air Force's Don't Ask, Don't Tell (DADT) policy, which is codified in statute, see 10 U.S.C. § 654, and implemented in the Air Force Reserve through Air Force Instruction 36-3209. 16. On July 6, 2007, the Air Force Personnel Board recommended that plaintiff be

discharged under the Air Force's DADT policy. 17. On July 10, 2007, the Secretary of the Air Force's designee directed that plaintiff

be discharged with an Honorable discharge. 18. 19. 20. Ultimately, plaintiff received an Honorable discharge, effective October 1, 2007. Plaintiff's discharge certificate contained no stigmatizing language or coding. To further unit cohesion, morale, good order, and discipline, the Air Force, an

institution globally organized and globally assigned, needs uniform personnel policies, not different personnel policies for separate geographical regions. 21. This need for uniformity extends to the DADT policy; it cannot applied differently

in various geographical regions without disruptions to unit cohesion, morale, good order, and discipline. 22. If plaintiff were not discharged, then the DADT policy would not be applied

uniformly and that would disrupt unit cohesion, morale, good order, and discipline. 23. At no point in time in the last six years has plaintiff actively engaged in the

practice of nursing at the rate of 180 hours per year.

PROPOSED CONCLUSIONS OF LAW 1. The Court lacks jurisdiction over any claim for which plaintiff seeks back pay or

retirement credit. a. Plaintiff's claims for back pay and retirement credit as a member of the Air Force Reserve constitute "money damages," and are outside of the waiver of sovereign immunity contained in the Administrative Procedure Act, see 5 U.S.C. §§ 701 - 706. b. If plaintiff did state a legally cognizable claim for back pay and retirement credit, then she would have an adequate remedy in the Court of Federal
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Claims, which would have exclusive jurisdiction over those claims. 2. The Court cannot reinstate plaintiff to her former unit, the 446th AES. a. Plaintiff does not meet the requirements for serving as an Air Force flight nurse because she has not been actively engaged in the practice of nursing. b. Due to principles of deference to the military, the Court cannot reinstate plaintiff to any particular unit. 3. Plaintiff has no actionable procedural due process claim. a. Plaintiff has not been deprived of a constitutionally protected life, liberty, or property interest. b. Even if plaintiff were deprived of a constitutionally protected life, liberty, or property interest, she has received the full process to which she is due by virtue of having a full discharge board hearing. 4. The Air Force's DADT policy is constitutional as applied to plaintiff. a. The Air Force has an important governmental interest in unit cohesion, morale, good order, and discipline. b. Because plaintiff's conduct, which was inconsistent with standards of military officership, posed a risk to unit cohesion, morale, good order, and discipline, her discharge from the Air Force significantly furthers unit cohesion, morale, good order, and discipline. c. It is necessary to discharge plaintiff under the DADT policy, and no less restrictive alternative exists for permitting plaintiff to continue to serve. d. The liberty interest identified by the Court of Appeals is outweighed here by unique military interests and thus the application of the DADT policy to plaintiff is constitutional.

Dated: August 31, 2010

Respectfully submitted, TONY WEST

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Assistant Attorney General VINCENT M. GARVEY Deputy Branch Director /s/ Peter J. Phipps PETER J. PHIPPS BRYAN R. DIEDERICH STEPHEN J. BUCKINGHAM United States Department of Justice Civil Division, Federal Programs Branch Tel: [phone] Fax: [phone] E-mail: [e-mail] Mailing Address: Post Office Box 883, Ben Franklin Station Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Attorneys for Defendants

Of Counsel: LT. COL. TODI CARNES 1777 N. Kent Street, Suite 11400 Rosslyn, VA 22209-2133 [phone]

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA CERTIFICATE OF SERVICE

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I hereby certify that on August 31, 2010, I electronically filed the foregoing Defendants'
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Proposed Findings of Fact and Conclusions of Law, with the Clerk of the Court using the
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CM/ECF system which will send notification of such filing to the following persons:
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

James E. Lobsenz, Esq. Carney Badley Spellman, P.S. 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Tel: [phone] Fax: [phone] E-mail: [e-mail]

Sarah A. Dunne, Esq. American Civil Liberties Union of Washington 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Tel: [phone] E-mail: [e-mail] Sher S. Kung, Esq. American Civil Liberties Union of Washington 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Tel: [phone] E-mail: [e-mail]

/s/ Peter J. Phipps PETER J. PHIPPS United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Ben Franklin Station Washington, DC 20044 Tel: [phone] Fax: [phone] E-mail: [e-mail] Attorney for Defendants