Witt v. U.S. Dept. of Air Force

• Citation: 739 F.Supp.2d 1308
• Decision Date: 24 September 2010
• Docket Number: Case No. 06-5195RBL
• Parties: Major Margaret WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF the AIR FORCE; et al, Defendants.
• Court: U.S. District Court — Western District of Washington

739 F.Supp.2d 1308

Major Margaret WITT, Plaintiff,

v.UNITED STATES DEPARTMENT OF the AIR FORCE; et al, Defendants.

Case No. 06-5195RBL.

United States District Court,

W.D. Washington,

at Tacoma.

Sept. 24, 2010.

Aaron H. Caplan, Loyola Law School Los Angeles, Los Angeles, CA, James E. Lobsenz, Carney Badley Spellman, Sarah A. Dunne, Sher S. Kung, ACLU of Washington, Seattle, WA, for Plaintiff.

Peter J. Phipps, Bryan R. Diederich, Stephen J. Buckingham, U.S. Department of Justice, Washington, DC for Defendants.

MEMORANDUM OPINION

RONALD B. LEIGHTON, District Judge.

Plaintiff Margaret Witt challenges the constitutionality of the statute known as "Don't Ask, Don't Tell" ("DADT") found at 10 U.S.C. § 654, and its implementing regulations (in the case of the Air Force Reserve, through Air Force Instruction 36-3209). Witt claims that her discharge under DADT violated both her procedural and substantive due process rights under the due process clause of the Fifth Amendment.

This Court has jurisdiction over the claims raised in this case pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1346 because plaintiff's claims arise under the Constitution of the United States, the laws of the United States, and a regulation of an executive department of the United States. This Court also has jurisdiction over the claims raised here under the Administrative Procedures Act, 5 U.S.C. § 702 et. seq.

Trial was conducted from September 13, 2010 through September 21, 2010.

I. PROCEDURAL HISTORY

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, 444 F.Supp.2d 1138 (W.D.Wash.2006), this Court granted the government's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), concluding that the regulationwas subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis review to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir.2008). The Circuit Court vacated the judgment and remanded to the District Court the plaintiff's substantive and procedural due process claims. It affirmed this Court's dismissal of the plaintiff's equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government's interest, and whether less intrusive means would substantially achieve the government's interest. Witt, 527 F.3d at 821.

These two questions are central to the Court's evaluation of the substantive due process claim. The procedural due process claim was not ripe when presented to the Ninth Circuit inasmuch as Major Witt had not yet been discharged and did not then allege she had been deprived of life or a property interest in violation of her procedural due process rights. She has since been honorably discharged.

II. STANDING

This Court has previously determined that Major Witt has standing to pursue this action. She has suffered an injury in fact which is concrete and particularized and actual, not conjectural or hypothetical. There is a causal connection between the injury and the conduct complained of and, finally, it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Ninth Circuit confirmed that Witt has standing.

III. "DON'T ASK DON'T TELL"

Congress adopted DADT in 1993. Following extensive fact-finding hearings, Congress made detailed findings on the subject of gays and lesbians serving openly in the military. Those findings deserve mention here:

(1) Section 8 of Article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.

(2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by Section 8 of Article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order, discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unitgreater than the sum of the combat effectiveness of the individual unit members.

(8) Military life is fundamentally different from civilian life in that—

(A) (A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

(9) The Standards of Conduct for members of the armed forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.

(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.

(11) The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.

(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.

(13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.

(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces' high standards of morale, good order, discipline, and unit cohesion that are the essence of military capability.

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the standards of morale, good order, discipline, and unit cohesion that are the essence of military capability.

10 U.S.C. § 654.

Collectively, these findings of fact represent the best evidence of the important government interest advanced by DADT. The implementing language of the statute provides that a member of the armed forces "shall be separated" from military service if he or she: 1) has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, 2) has stated that he or she is a homosexual or bisexual, or 3) has married or attempted to marry a person "known to be of the same biological sex." 10 U.S.C. §§ 654(b)(1), (b)(2), and (b)(3).

There are exceptions in the DADT statute but none is applicable in the case now before the Court.

IV. FACTS

Margaret Witt joined the Air Force as a Second Lieutenant in 1987. She was promoted to First Lieutenant in 1989, to Captain in 1991, and to Major in 1999. In 1995, she transferred from active to reserve duty and, as a flight nurse, was assigned to the 40th Aeromedical Evacuation Squadron (AES), later to become the 446th.

The 446th AES consists of approximately 150-170 service personnel including flight nurses and medical technicians. Their mission is to convert cargo aircraft into flying "intensive care units" (ICU) and to transport wounded and injured military personnel throughout the military's medical system. Squadron members typically fly in five-person crews. As reservists they fly at least once every 60 days, they participate in drill weekends and they serve two weeks active duty (annual tour) each year. They are subject to worldwide deployment at any time depending on the needs of the country they serve.

Major Witt was selected to serve as the Chief of Standards & Evaluation (StandEval) for the 446th Squadron based on her knowledge of pertinent regulations and policies and procedures and her leadership skills. As Chief of StandEval, Witt was responsible for evaluating the other flight nurses. She was acknowledged by her fellow flight nurses to possess superior job skills, a calm demeanor under pressure and the ability to coalesce her subordinates into an effective, proficient team.

During her service in the military, Witt received the meritorious Service Medal, the Air Medal, the Aerial Achievement Medal, the Air Force Commendation Medal, and numerous other awards and commendations. Her annual "Officer Performance Reviews" were routinely high.

Starting in October...