Witt v. Department of the Air Force et al

Filing 58

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 9/2/2009 before Judge Ronald B. Leighton.Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.To purchase a copy of the transcript contact court reporter Teri Hendrix by telephone at 253-882-3831. . Release of Transcript Restriction set for 12/10/2009, (PVO)

Witt v. Department of the Air Force et al

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

MAJOR MARGARET WITT,

) ) Plaintiff, ) ) vs. ) ) UNITED STATES DEPARTMENT OF THE ) AIR FORCE; DONALD H. RUMSFELD, ) Secretary of Defense; MICHAEL W.) WYNNE, Secreatary of the ) Department of Air Force; and ) COLONEL MARY L. WALKER, ) Commander, 446th Aeromedical ) Evacuation Squadron, McChord ) AFB, ) ) Defendants. ) )

Docket No. C06-5195RBL Tacoma, Washington September 2, 2009

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT COURT JUDGE APPEARANCES: For the Plaintiff: JAMES E. LOBSENZ Carney Badley Spellman 701 Fifth Avenue, Ste 3600 Seattle, Washington 98104-7010 SARAH DUNNE American Civil Liberties Unions Of Washington 705 Second Avenue, Ste 300 Seattle, Washington 98104-1799 Teri Hendrix Union Station Courthouse, Rm 3130 1717 Pacific Avenue Tacoma, Washington 98402 [phone]

Dockets.Justia.com

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporter: Also Present: For the Defendants:

APPEARANCES- CONTINUED

PETER J. PHIPPS U.S. Department of Justice Civil Division Federal Programs P.O. Box 883 Washington, D.C. 20044 MAJOR LINNELL LETENDRE

Teri Hendrix Union Station Courthouse, Rm 3130 1717 Pacific Avenue Tacoma, Washington 98402 [phone]

Proceedings recorded by mechanical stenography, transcript produced by Reporter on computer.

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WEDNESDAY, SEPTEMBER 2, 2009 -9:30 A.M. *** THE COURT: THE CLERK: Please be seated. This is in Cause No. C06-5195RBL, Witt

versus Department of the Air Force, et al., Cause C06-5195RBL. Counsel, please make their appearances. MR. LOBSENZ: for Major Witt. co-counsel. Good morning, Your Honor, Jim Lobsenz

With me at counsel table is Sarah Dunne,

I think the last time we were here I was here He's now a law professor in southern

with Mr. Caplan. California.

THE COURT:

I talked with Mr. Caplan a couple months

ago and wished him well. Mr. Lobsenz, good morning. MR. PHIPPS: Ms. Dunne, good morning. I am with the United

I am Peter Phipps.

States Department of Justice. this case.

I represent the defendant in

With me at counsel table is Major Linnell Letendre

from the Air Force. THE COURT: Major Letendre. Upon review of the joint status report filed by the parties, it is clear that there was a request for a status conference. There's a difference of opinion as to how we Good morning, Mr. Phipps. Good morning,

should proceed and on what schedule we should accomplish our work.

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I guess, Mr. Phipps, I am going to hear from you first. have to tell you, I am a little skeptical of doing sort of a bifurcated motions practice. Part of that stems from my

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scepticism about whether or not this is a case -- given the Ninth Circuit's opinion -- that can be resolved in a summary fashion at all. So go ahead. Should I go first? You bet. First, to answer your question there,

MR. PHIPPS: THE COURT: MR. PHIPPS:

there's basically three reasons why we made the proposal that we made; and that proposal for review is for the initial period of summary judgment briefing during which the discovery would be stayed. The first reason is the Ninth Circuit announced a new legal standard, and so we are operating under a new legal standard. As typical, when a case becomes an entirely new

case operating under a new legal standard, you can start with dispositive motions in an effort to frame and narrow issues. So just at the outset, since we view this as an entirely new case, we think it is appropriate procedurally to have an opportunity to make dispositive motions. The second reason is related to the first reason, that there's an entirely new legal standard, but it's a little more specific; and that is that the Ninth Circuit's new legal standard comes from a factually dissimilar area of the law.

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It comes from the Sell decision, the United States Supreme Court's decision in Sell; and that area of fact related to the forcible administration of antipsychotic drugs to criminally insane defendants so that they would be competent to stand trial. That's very different than the military's personnel policy regarding homosexual contact. And on remand, the contours of

that general standard are going to need to be applied carefully so that they reflect the realities of military life. We think that it makes more sense to begin to frame those issues at the outset so that we are looking at the standard on remand as tailored to what the factual realities are here. The third reason is that proceeding with discovery in this case is uniquely problematic for the Air Force. To explain

this, I need to get into a little bit of the details of the Ninth Circuit's decision. THE COURT: I have to confess; for this status But

conference I did not reread the Ninth Circuit's opinion. believe me, I read it more than once when it came out. MR. PHIPPS: What the Ninth Circuit did was it

instituted an as-applied test for the "Don't Ask, Don't Tell" policy. It identified three factors that should be looked at

in the as-applied context. The first factor was whether there was an important government interest in unit morale and cohesion.

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As far as I can tell, the Ninth Circuit resolved that first factor in the military's favor and said, yes, the military does have an important government interest in unit morale and cohesion. There's two factors that remain, whether or not the policy promotes unit morale and cohesion and whether it's necessary to promote unit morale and cohesion. I am paraphrasing; I

don't mean to take all of the life out of the legal analysis, but that's a general sketch. So we are at this position where the Ninth Circuit has recognized that there's an important government interest in unit morale and cohesion; that is the government's, pursuant to the constitutional analysis of the Ninth Circuit case. If we commence with discovery into the specific facts of this case by looking at what unit members think, we are threatening -- we are jeopardizing the unit morale and cohesion that, in its constitutional analysis, the Ninth Circuit said the government -- the military -- has an important government interest in. So the military is in a bit of a catch-22. By proceeding

to discovery, we may well have to sacrifice our important government interest as recognized by the Ninth Circuit as being an important government interest in its constitutional analysis. This issue is exacerbated in this context because we are

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looking at reservists, and reservists are not full-time -typically not full-time military service members, and so they come for weekends, a few weeks a year, typically. And to then

begin to take a controversial political social issue, and then have them deal with the discovery burdens of that in their limited time, it's already a risk to unit morale and cohesion and it's exacerbated because they've got less time to focus on what really is their primary mission. So for those reasons, we thought it would be appropriate to begin to conduct -- to start off with summary judgment briefing, wherein what we would do is lay out the government's position with respect to these three factors, attempt to give them some legal dimension, apply them to the context of the military without sacrificing that important government interest that the Ninth Circuit recognizes we have. So that's what underlies our position. THE COURT: position; thanks. Mr. Lobsenz or Ms. Dunne. MR. LOBSENZ: Well, Your Honor, it seems to me that I think I understand better your

it was Mr. Phipps' last point on discovery that may be problematic, which is where the rubber hits the road, and the government just doesn't want any discovery. I have heard that

message from the government clearly -- loud and clear. Ms. Dunne and I were asked to meet with the Solicitor

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General of the United Sates in April, and we heard that message loud and clear that discovery is a big problem; but we never heard any specifics as to why, and it boils down to they don't like the Ninth Circuit's decision. THE COURT: Let me ask you -- and I don't want to

tread on tactics if you can tell me -- it really is curious -I'm a curiosity seeker here I guess. case, a fascinating case. anticipate? It's an interesting

What kind of discovery do you

Have you had an opportunity to sort of map it out

and cogitate about what you want to do? MR. LOBSENZ: I have thought about it. Part of the

difficulty of thinking about it is not knowing what the government is going to argue. I have sort of this ancient

experience from the Watkins case from like three decades back. I know what they argued then, and I have some suspicions that I am going to see similar things. rules that applied then. There were different legal

At that time we got lots of

affidavits from people who were like Joint Chiefs of Staff or -THE COURT: I guess that's what I am talking about.

I am familiar with what happened at the congressional level, who came and testified, what they testified to. MR. LOBSENZ: relevant. THE COURT: Okay. I don't see that as being particularly

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MR. LOBSENZ:

I suppose it might be, but if it

becomes relevant it's because the government is going to come in here and tell you it's relevant; I'm not sure why. The

opinion couldn't be clearer that the three-factor test has to be as applied to Major Witt and the 446. THE COURT: Is it so clear as to the 446? Obviously

O'Scannlain and Kleinfeld -- we have mobility within our forces, and which -MR. LOBSENZ: O'Scannlain and Kleinfeld were writing

dissents from denial of certs, so I take the position that it really should be focused on the 446. disagree. The government may

Your Honor may disagree, but I think that's going

to be my position. So I see, perhaps because I am just guessing, a useless round of summary judgment that they want to do where they bring in some affidavits from some people that have no familiarity with either Major Witt or the 446. THE COURT: Given the nature of the question, I don't That's my

see how I can summarily decide the issue at all.

concern, is that -- as I have sort of ruminated about where we go from here. On an as-applied analysis, I agree with you; I

think it's as to Major Witt. MR. LOBSENZ: THE COURT: MR. LOBSENZ: I guess I half agree with you. Well, we are making progress. My thought is that you grant summary

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judgment to Major Witt if they don't come up with some shred of evidence that she causes a problem in 446, and I have always been skeptical that they have been able to do that. have already on file something like 14 declarations from people who said not only was she not a problem, but many of them said suspending her and discharging her -- that caused a problem, that made us angry. One person in his declaration said he was so disgusted he didn't enlist for another term; and I think the name -- I want to say Major Madison, but that might not be the right name. But the woman who communicated to Major Witt that you are being suspended said, I believe at the time -- maybe it was Faith Mueller. Someone said "I was so disgusted I wanted to I see some possibility that the We

take off my uniform."

government won't be able to come up with anyone to say that she ever caused a problem. And I just don't know. The types of discovery I envision

are limited to people within the 446 at that time, unless they persuade you that something else is relevant. Colonel Walker,

who is the person who made the decision, that's somebody I would like very much to get answers from because I suspect that she will say at the time that I issued the orders to suspend her, I had no personal knowledge and no hearsay knowledge that she had ever caused a problem with anyone in my unit. I don't see how judicially noticeable facts are going

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to help you in a summary judgment motion. The other thing I want to say, briefly, is that in the beginning I thought we were going to agree totally on a schedule. We had a schedule mapped out, and I was led to But this proposal for a round first, and There's no

believe no problem.

then after a ruling, leaves everything indefinite. actual trial date. No one can plan for anything.

I just don't want to repeat my point that it's been almost five years, and we would like to move the case along. THE COURT: MR. PHIPPS: I understand. Mr. Phipps.

I would like to just touch on a few

points that I think bear on both the discovery issue and then maybe give a preview of some summary judgment issues that we think would be appropriate to decide at this point in time or after briefing. First, on the discovery issue, I think it's very important to recognize that the realities of military life -- a unit referendum approach to personnel decisions is not how the military works. You don't poll members of a unit and say, "do

you like this person, do you not like that person?" THE COURT: But doesn't the question of unit cohesion

and morale necessarily lend itself to that kind of a survey approach? You are looking for -- the assumption is that the

presence of a homosexual member of the military in the 446, or whatever, might have different consequences than -- I am going

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to stereotype here -- but the Alabama National Guard infantry branch out in Afghanistan or Iraq doing patrol. I think

there's -- having paid attention to the debate and what was being said during the discussion about "Dont Ask, Don't Tell," I remember those kind of distinctions being made. MR. PHIPPS: that bear. And I think that there's a few points

One is that that decision wouldn't be given to a It would depend on unit

democratic vote of a unit. leadership.

Then I think there's a really important point to

understand, and that is that the military's functionality is not based on separate rules, based on separate regions, separate rules based on reserve status or active duty status. THE COURT: Ninth Circuit? MR. PHIPPS: No, I don't believe that's the case. Didn't you already lose that fight in the

The Ninth Circuit wants an as-applied analysis, but I think what we would intend to put in would be a recognition that this need for uniform standard necessarily affects the bounds of the as-applied analysis that can be applied. And by that

what I mean is it's fundamentally problematic if there begin to crop up different rules for different components of the military regarding a personnel policy. harmful to unit cohesion and morale. THE COURT: Is there any reason why discovery has to That in itself is

be suspended during the time that that issue gets ferreted

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out?

My reading of the circuit opinion leads me in a certain

direction on that issue, but I obviously am prepared to be persuaded. MR. PHIPPS: And I think the reason is the reason

that I had touched on before, which is discovery is going to interfere with unit morale and cohesion, which is not just a legitimate government interest, but an important government interest. So we find ourselves in this position of if we go

down this road, the military has already lost something; we've already had something compromised here. THE COURT: Is the nature of your concern that if the

Court decides some of the legal issues the way the government wants them to be decided, then the intrusion on a unit, or multiple units, will be minimal because we will simply talk to the ranking officer who will inform us as to what the impact on his or her unit would be to have an openly avowed gay person in the unit? MR. PHIPPS: heading. That's the direction that we are

And essentially to make this as-applied analysis, we

are going to look at the legitimacy of the congressional findings, which the Ninth Circuit has not disputed their legitimacy, and then through the leadership officer's transfer back so that it is applicable to Major Witt. That, we believe, can be done summarily through affidavits, declarations, only a few people; and then the

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judicially noticeable facts of congressional record and other sorts of evidence. So we think that this presents itself readily for summary judgment in the sense that we look at what the leadership officials say, and essentially what they are going to be doing is building a bridge between the congressional findings and Major Witt; and that's the as-applied analysis. MR. LOBSENZ: From here, Your Honor, I just want to

say that on page 821 of the Ninth Circuit's decision that says "Remand is required for the District Court to develop the record on Major Witt's substantive due process claim," I don't see how the record can be developed -THE COURT: I agree with you, Mr. Lobsenz. It's an

interesting approach, but I think that the best way to proceed here is to schedule a trial date to give dates for conducting discovery, dates, deadlines. it's a ceiling, not a floor. It's kind of like a speed limit; You can bring the summary

judgments as soon as you are ready and want to flesh out the issues that have been proposed. I know I need to be careful what I ask for, but this is obviously an important issue. interest. It's an issue of wide public

Major Witt has been out in the cold, as it were, She has a right to her day in

for a lengthy period of time.

court; and I intend to -- subject to the powers of persuasion by counsel that some summary disposition is appropriate, I

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intend to give her her day in court. My question to you, Mr. Lobsenz, is that I thought that your August, September 2010 was a little slow, but I was looking at May. I don't know whether that's doable from the What I am looking at is the week

perspective of either side.

of May 24th and June 1st as a trial date, and then we will back up all of those dates from then. MR. LOBSENZ: I think we can live with that, but I We

there's some question about the availability of experts.

don't really know what experts the government has in mind. had our expert at the time we filed the lawsuit. know how long it will take the government.

I also don't

I anticipate there

are some special problems with the fact that the people with the information may not still be in court and are scattered all over the world. THE COURT: MR. LOBSENZ: Sure. I don't know if you know where Colonel

Walker is these days; I don't think she's at McChord any more. If these people are in Afghanistan or other parts of the globe, that's one thing. it up a little bit. THE COURT: Mr. Phipps, recognizing that I am not We can certainly live with speeding

going to pursue the two-track approach for motion practice, any specific hardships that you can anticipate if we were to assign a May 24th trial date?

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MR. PHIPPS:

Your Honor, I think that our most

important is a remnant issue from before, would be that we would like the opportunity to fully brief dispositive motions before that time, and if possible, get determinations on those dispositive motions before that time. Just kind of backtracking, I don't know where that calendar would put us; but assuming that that leaves enough time for such dispositive motion practice, probably then at the close of discovery, I think that would work. THE COURT: Recognize that I am pretty liberal when You get along. I think you

it comes to extensions of time. respect each other. here.

You certainly respect what we are about

I don't see any reason why we can't solve every problem

we need to solve in order to move this case along. If it turns out that May 24th is too ambitious, then we will adjust that schedule. I am not going to prevent somebody

from developing the case that they believe they are entitled to develop simply because we ran out of time, but I am cognizant of how long this matter has been pending. If this were a case that were coming in -- if this was a status conference following a case filing in June, we'd be trying to get you out the end of May or early June. We don't

have the problems that some of the other districts around the country have. So I am going to give you a trial date of May 24th, and an

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order will issue from this Court that will back up -- the discovery cutoff would be January 26th. time, we will give you more time. would be February 25th. If you need more

Dispositive motion cutoff

That would be in the normal -- is the

trial date the 26th or the 24th? THE CLERK: is Tuesday. MR. LOBSENZ: THE COURT: September? MR. LOBSENZ: thing now. I just want to alert the Court to one I guess I worry too much. You want to go back to August or The 26th. The 25th is a holiday. 26th

There is a criminal conspiracy trial set for

January 19th in Federal Court that has, I think, five or six defendants, and I am counsel. And criminal cases -- I don't

really see that case ever settling, but I also don't necessarily see this going to trial then. out that it's not a problem. So it might turn

But if I already have a trial

then, I thought I would just tell you that you probably would see motions for extension of time about the summary judgment stuff because it would be right in the middle of that trial. THE COURT: Labor Day? THE CLERK: THE COURT: September 13th or the 20th. Let's go September 13th. What Jean, what do we have in September, after

intermediate days would we get for the discovery calendar?

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THE CLERK:

Discovery would be May 17th, and

dispositive motions deadline would be June 15th. THE COURT: The trial date is September 13th. A six-

to eight-day trial is what everybody predicts. cutoff would be May 17th. June 15th.

Discovery

Dispositive motion cutoff would be You can

As I said, that's a ceiling, not a floor.

let the motions begin if that's what we need to do. MR. LOBSENZ: Could I have one more additional

In the order, could you set a cutoff date for

disclosure of experts? THE CLERK: THE COURT: It will be March 17th. March 17th; it's the normal part of our

Mr. Phipps. MR. PHIPPS: Your Honor, we were interested in having I

some limits placed on the scope of discovery at the outset.

know that there's limits in the Rules of Civil Procedure that already apply; 10 depositions, 25 interrogatories, limits on requests for admission, production of documents. set at 40. Those are

In that this case doesn't implicate insurance or

damages, we were hoping the Court would waive the initial disclosure requirements so we could get straight to the core discovery. Anything that would be gained by initial

disclosures could be -THE COURT: Well, let me say if the parties agree

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that initial disclosures -- the lay down provisions are not required, not necessary here or wouldn't be helpful, that's fine with me. I will tell you that my natural reaction to Again, because

limits on discovery is going to be negative.

of the import of this case to developing law and to, I guess, the development of the culture in many ways, this is an issue that is of huge importance, and if somebody comes in and says I want to take an 11th, 12th, or 13th deposition, whether that's the government or plaintiff, I am going to receive that request favorably. If there are specific problems, they are going to need to come through the appropriate exercise of rights and limitations as provided in the rules. Mr. Lobsenz. MR. LOBSENZ: are fine in this case. I think the normal limits on discovery I don't anticipate doing a lot. I

just don't like arbitrary limits. THE COURT: I don't either. Let me also say, that if

you don't want to file papers and you just want to pick up the phone, pick up the phone. You know, we are very good here That doesn't necessarily mean

about humble decision making.

we get it right; you just get a fast service. Okay, so if you need to pick up the phone and call about an ongoing dispute, and you don't want to write a 15-page memorandum that I don't want to read anyway, pick up the phone

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and call. But you need to know -- and again, this is where I put in my order that if you want to know how the Court is going to decide discovery issues, look at the American College of Trial Lawyers Code of Pre-Trial Conduct, because it describes both the letter and the spirit of the discovery rules and the level of cooperation that the Court expects from officers of the court. I don't think there's a chance that that's going to be an issue -- a serious issue in this case; but if you want to know what the Court is going to say, it's pretty well scripted there. We, and the College, spend a lot of time and effort

trying to inform our colleagues and the bar and the judiciary as to how best to comport oneself when it comes to discovery disputes and how judges ought to resolve those issues. So I am a committed disciple of those, of both the Code of Pre-Trial Conduct and the Code of Trial Conduct, although the Code of Trial Conduct really has probably less relevance to us than the Pre-Trial. You can get that online, and there's a reference in the scheduling order that will come out that will have that website. Anything further at this time? MR. LOBSENZ: THE COURT: No. Mr. Phipps.

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MR. PHIPPS: THE COURT:

Nothing from the defendant, Your Honor. All right, very well.

Court will be in recess. (Proceedings concluded at 10:00 a.m..)

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CERTIFICATE

I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

Teri Hendrix __________

September 9, 2009 Date

Teri Hendrix, Court Reporter