Lohrenz v. Donnelly

• Decision Date: 12 December 2003
• Docket Number: No. 02-5294.,02-5294.
• Citation: 350 F.3d 1272
• Parties: Carey Dunai LOHRENZ, Appellant, v. Elaine DONNELLY, Center for Military Readiness, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

350 F.3d 1272

Carey Dunai LOHRENZ, Appellant, v. Elaine DONNELLY, Center for Military Readiness, et al., Appellees.

No. 02-5294.

United States Court of Appeals, District of Columbia Circuit.

Argued September 19, 2003.

Decided December 12, 2003.

Appeal from the United States District Court for the District of Columbia (No. 96cv00777).

Rodney A. Smolla argued the cause and filed the briefs for appellant.

Kent Masterson Brown argued the cause for appellees. With him on the brief was Frank M. Northam.

Before: ROGERS and ROBERTS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

The principal issue in this appeal is the scope of the voluntary limited-purpose public figure doctrine. Carey Dunai Lohrenz became one of the first two women combat pilots in the United States Navy at a time when there was a public controversy about the appropriateness of women serving in combat roles. In appealing the grant of summary judgment on her defamation complaint against Elaine Donnelly and the Center for Military Readiness ("CMR"), Lohrenz contends that, because she was simply doing her job and was at most a peripheral figure in the controversy about whether the Navy was applying a double standard for women combat pilots, the district court erred in ruling she was a public figure. To the extent that the court might hold that she was an involuntary limited-purpose public figure, Lohrenz attacks this court's application of that doctrine in Dameron v. Washington Magazine, 779 F.2d 736 (D.C.Cir.1985), cert. denied, 476 U.S. 1141, 106 S.Ct. 2247, 90 L.Ed.2d 693 (1986), and urges that its application be limited or the case overruled. Finally, Lohrenz contends that the district court erred in finding that she failed to present evidence from which a reasonable jury could find by clear and convincing evidence that Donnelly and CMR published the alleged defamations with actual malice.

Because Lohrenz's evidence shows that she chose the F-14 combat jet while well aware of the public controversy over women in combat roles, her challenge to the ruling that she was a voluntary limited-purpose public figure once the Navy assigned her to the F-14 combat aircraft rings hollow: she chose combat training in the F-14 and when, as a result of that choice, she became one of the first two women combat pilots, a central role in the public controversy came with the territory. Having assumed the risk when she chose combat jets that she would in fact receive a combat assignment, Lt. Lohrenz attained a position of special prominence in the controversy when she "suited up" as an F-14 combat pilot. Therefore, because the alleged defamations were germane to her position as a woman combat pilot, we hold that the district court did not err, upon applying the three-part test of Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C.Cir.1980), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980), in ruling that Lohrenz was a limited-purpose public figure. Hence, we do not reach Lohrenz's challenge to the analysis in Dameron, which only the en banc court can properly entertain. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc). Further, because a review of the evidence, again viewed in the light most favorable to Lohrenz, shows that she failed to meet the stringent standard established by the Supreme Court for public figures, who must demonstrate by clear and convincing evidence that defamation defendants acted with actual malice, we affirm the judgment of the district court.

I.

Upon de novo review of the grant of summary judgment, see Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994), the evidence, viewed in the light most favorable to Lohrenz as the non-moving party and drawing all reasonable inferences in her favor, see Forman v. Small, 271 F.3d 285, 291 (D.C.Cir.2001), cert. denied, 536 U.S. 958, 122 S.Ct. 2661, 153 L.Ed.2d 836 (2002); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(c), shows the following:

Carey Dunai Lohrenz served as a member of the United States Navy following graduation from college in 1990, and continued to serve in the Navy until early 1999. She graduated from Aviation Officer Candidate School with academic honors and received her commission on May 17, 1991. She successfully completed Primary Flight Training on February 3, 1992 with first place honors (Commodore's List). As was tradition, in light of Lt. Lohrenz's graduation in the top ten percent of her class at Primary Flight School, the Navy recognized her superior performance as a student pilot by assigning her to be trained in a preferred class of aircraft. Lt. Lohrenz selected jets from among several alternatives. Following completion of Intermediate and Advanced Training, she received her designation as a naval aviator on June 25, 1993.

At the end of advanced jet training, pilots were given one opportunity to suggest which particular jet they would like to pilot. Shortly before she had to make her choice, a personnel specialist in the Bureau of Naval Personnel advised Lt. Lohrenz that, because women jet pilots were only permitted to fly noncombat planes and all noncombat jets were being decommissioned, the Navy had no place for women jet pilots; she could either temporarily serve as a flight instructor or leave the Navy. However, in the intervening days, the Navy changed its policy, and permitted women to train for combat aircraft. As Lohrenz alleged in her complaint, she then "chose combat aviation." Amended Complaint ¶ 22. In June 1993, the Navy assigned Lt. Lohrenz to the West Coast F-14 program. Along with Lt. Kara Hultgreen, an experienced Navy pilot, Lt. Lohrenz began training in the F-14 Tomcat fighter jet in July 1993.

The Navy's decision to assign Lt. Lohrenz and Lt. Hultgreen as the first women to pilot United States armed forces combat aircraft occurred amidst an ongoing public controversy about the appropriateness of women serving in combat roles in the military. A subcontroversy concerned whether the military should relax physical strength and other standards to account for differences between male and female members of the armed services. And another subcontroversy related to whether women should serve as combat pilots in particular. These controversies persisted even after 1991, when Congress repealed the law barring women from combat fighters and bombers, and after April 1993, when, on the heels of the Tailhook scandal involving allegations that Navy officers had sexually harassed enlisted women, the Secretary of Defense lifted the Defense Department's ban on women serving in such positions.

Although she never initiated any contacts with the media prior to the alleged defamations, Lt. Lohrenz's new combat assignment made a few headlines. Her hometown newspapers in Green Bay and Milwaukee, Wisconsin published brief human interest stories about her and her family members, most of whom have been military pilots. Further, in response to Navy encouragement that Lt. Lohrenz did not feel at liberty to decline, she granted an interview to KNSD-TV, a local San Diego, California station. Also, The Compass, a publication for the naval community in San Diego where Lt. Lohrenz was posted, covered her assignment to the F-14. Lt. Lohrenz explained in The Compass that the Navy's decision to allow her to choose combat aircraft came as a great relief; she had been "in tears" because she "couldn't believe that all the guys [she] had gone through flight school with, and had worked so hard and competed with and done well, were going to go out to the fleet and get a chance and [she] wasn't going to have [her] chance." Scott D. Williams, First Women Join Fleet Fighter Squadron: The Jet Doesn't Know the Difference, The Compass, Sept. 9, 1994, at A1. Her Commanding Officer, however, succeeded in deflecting most of the media attention directed at her. This changed after October 28, 1994.

After eleven months of training in the F-14, Lieutenants Hultgreen and Lohrenz satisfied requirements for posting with a carrier-based flight squadron. In August 1994, the Navy assigned both women to fighter Squadron 213 attached to the U.S.S. Abraham Lincoln in the Pacific Fleet. They participated in regular training exercises to maintain their combat readiness. In the course of such an exercise, on October 28, 1994, Lt. Hultgreen died while attempting to land an F-14 on the U.S.S. Lincoln; the Navy subsequently determined that the plane did not signal to the pilot that one of its engines was not working until it was too late to avoid a crash. After Lt. Hultgreen's death, the media turned its attention to the question of whether the Navy had established a "double standard" in order to enable women to qualify as combat pilots, initially focusing on Lt. Hultgreen. Three months after Lt. Hultgreen's crash, Elaine Donnelly, who had long opposed permitting women to serve in combat positions, drew attention to Lt. Lohrenz. Starting in the 1970s, Donnelly had testified before Congress in opposition to women in combat, published on the subject, and, in the early 1990s, served on the Presidential Commission on Assignment of Women in the Armed Services. In 1992, Donnelly incorporated the Center for Military Readiness and served as its president; the CMR has regularly published articles and issued press releases opposing women serving in combat positions, including as combat pilots. As relevant here, Donnelly and CMR published four allegedly defamatory publications about Lt. Lohrenz.

First, on January 16, 1995 Donnelly wrote on CMR letterhead to Senator Strom Thurmond to alert the then-Chairman of the Senate Armed Services Committee to "certain practices designed to assure that women will not fail [that] have now been extended to the demanding and dangerous field of carrier aviation in the F-14 community." Donnelly...