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HONORABLE 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; DONALD H. RUMSFELD,

Secretary of Defense; MICHAEL W.

WYNNE, Secretary of the Department of Air

Force; and COLONEL MARY L. WALKER,

Commander, 446th Aeromedical Evacuation

Squadron, McChord AFB,

Defendants.

Case No. C06-5195 RBL

ORDER

THIS MATTER is before the court on Plaintiff’s Motion for a Preliminary Injunction [Dkt. #8] and

Defendants’ Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) [Dkt. #24]. At issue is the constitutionality

of 10 U.S.C. §654, the so called “Don’t Ask, Don’t Tell” (“DADT”) policy regarding homosexuals in the

military. 

Plaintiff argues primarily that the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558

(2003), established the right to engage in homosexual relations as fundamental. Under Lawrence, Witt

argues, DADT’s constitutionality must be reviewed under a higher level of scrutiny than the rational basis

review which courts have applied in the past. Rational basis review requires only that government have a

legitimate interest in regulating the conduct at issue. 

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Defendants argue that Lawrence did not change the level of scrutiny to be applied to regulations

and policies applicable to homosexuals, and that DADT continues to pass constitutional muster following

Lawrence, as it did before that opinion was rendered. 

Plaintiff, Major Margaret Witt, is a highly decorated, well-respected flight nurse in the United

States Air Force Reserves. She was a Standards and Evaluations Flight Commander with management

responsibility for more than 200 flight nurses and medical technicians. She has been used extensively as a

role model in Air Force recruiting publications. 

In the Summer of 2004, the Air Force began investigating an apparently anonymous allegation that

Major Witt was a lesbian. It was specifically alleged that Major Witt had been in a homosexual relationship

with a civilian woman from July 1997 through August 2003. The woman with whom Witt was involved

was never a member of the Air Force or any other branch of the military. The alleged acts occurred in the

home the women shared in Spokane, Washington, across the state from Major Witt’s duty station at

McChord Air Force Base, outside of Tacoma, Washington. It is agreed that Witt did not ever engage in

homosexual conduct on the base, or with a member of the military. At the same time, Witt does not

dispute that she is a lesbian and that she did participate in a homosexual relationship.

Although Witt did not make any disclosures regarding her sexual orientation either before or during

the investigation, the investigating officer correctly concluded that the allegations were true, and that Witt

had engaged in homosexual relations with her civilian partner. In November 2004, Witt was informed that

separation proceedings would be initiated against her under the DADT policy. She was precluded form

working and from earning pay or points toward promotion and pension, pending final resolution of the

separation action. Sixteen months later, on March 6, 2006, Witt was notified that the Air Force had 

initiated the separation process. Witt was notified of her right to request a hearing before an

administrative discharge board if she wished to contest the separation. She immediately did so, but no

hearing has yet been scheduled. The government’s counsel suggested at oral argument that such a hearing

will likely be scheduled by August or September of 2006. 

In the meantime, Witt commenced this action. She seeks a preliminary injunction allowing her to

continue working and earning points toward promotion and her pension, and precluding the government

from following through on its stated intent to separate her from service. She challenges DADT’s

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constitutionality on three bases: (1) Substantive Due Process, based on Lawrence; (2) Equal Protection;

and (3) the First Amendment. She also argues that her right to Procedural Due Process was violated,

based on the fact that she has not had a hearing more than a year and a half after she was suspended. She

argues that scheduling a hearing at this date cannot cure the violation and seeks as a remedy to preclude

the government from processing her separation. 

ANALYSIS

I. Fed. R. Civ. P. 12(b)(6) Standard

A court may dismiss a claim if it appears beyond doubt that the plaintiff can prove no set of facts to

support the claim that would entitle the plaintiff to relief. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th

Cir. 1983) (citing Conley v. Gibson, 355 U.S. 41, 45-56 (1957)). Dismissal may be based on either the

lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. 

Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are

taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d

1295 (9th Cir. 1983). However, a plaintiff must plead factual allegations with specificity; vague and

conclusory allegations of fact fail to state a claim for relief. Colburn v. Upper Darby Township, 838 F.2d

663, 666 (3rd Cir. 1988). If a claim is based on a proper legal theory but fails to allege sufficient facts, the

plaintiff should be afforded the opportunity to amend the complaint before dismissal. Keniston, 717 F.2d

at 1300. If the claim is not based on a proper legal theory, the claim should be dismissed. Id.

The Ninth Circuit has held since 1997 that discharge under DADT does not violate the Fifth

Amendment’s Equal Protection clause or the First Amendment’s right to Freedom of Speech. See Holmes

v. California National Guard, 124 F.3d 1126 (1997) and Phillips v. Perry, 106 F.3d 1420 (1997). This

Circuit has also consistently held that the pre-DADT policies and regulations regarding gays in the military

did not violate a service member’s right to substantive due process. See Schowengerdt v. United States,

944 F.2d 483 (9th Cir.). The result in Schowengerdt was mandated by the Supreme Court’s decision in

Bowers v. Hardwick, 478 U.S. 186 (1986), a case that upheld Georgia’s anti-sodomy statute using rational

basis review. 

In 2003, the Supreme Court’s opinion in Lawrence expressly overruled Bowers. It did so without

making clear whether a new, higher standard of review is to be applied in cases involving regulation of

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homosexual conduct. The opinion employed language that in places suggests rational basis review should

be applied, and in other places seems to imply that a higher level of scrutiny is required. It is the Lawrence

decision that plaintiff relies upon to support her Substantive Due Process argument, and it is the meaning

of this relatively recent opinion that is the focal point of this court’s inquiry here. 

II. Substantive Due Process Analysis

A. Lawrence v. Texas

In 2003, the United States Supreme Court decided Lawrence v. Texas. At issue was the

constitutionality of the Texas “Homosexual Conduct” law. The Court held that the Texas anti-sodomy

statute, which criminalized private consensual sodomy, was unconstitutional. In the process, the Court

expressly overturned Bowers v. Hardwick, a case decided seventeen years earlier. Although the Court

made clear its disdain for the Texas law and its complete rejection of the holding in Bowers, it left for

others to ponder the precise formula it employed in reaching those conclusions. Some observers, including

plaintiff’s counsel, argue that the Court changed the constitutional landscape by defining private,

consensual, same sex intimacy as a fundamental right, the regulation of which may be justified only by a

compelling state interest which must be narrowly drawn to express only those interests. Plaintiff points out

that the majority in Lawrence relied heavily on cases that recognized a constitutionally protected autonomy

to make personal sexual decisions, to wit: Griswold v. Connecticut, 381 U.S. 479 (1965) (the right of a

marital couple to access contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of individuals,

married or unmarried, to access contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (the right to an

abortion); and Carey v. Population Services Int’l, 431 U.S. 678 (1977) (the right to distribute

contraceptives). That those cases all involved strict scrutiny analysis of regulations affecting fundamental

rights suggest to plaintiff that private, consensual, same-sex intimacy was accorded the status of a

fundamental right by the Lawrence majority. Plaintiff argues that DADT cannot withstand the strict

scrutiny demanded by Lawrence. 

Plaintiff argues in the alternative that the Lawrence court, at the very least, defined the liberty

interest at stake so as to require an intermediate standard of review, a “searching constitutional inquiry.” 

United States v. Marcum, 60 M.J. 198, 204 (C.A.A.F. 2004). The Lawrence court defined the liberty

interest as one that “gives substantial protection to adult persons in deciding how to conduct their private

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First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest

identified by the Supreme Court [in Lawrence]? Second, did the conduct encompass any behavior or factors identified by the

Supreme Court as outside the analysis in Lawrence? 539 U.S. at 578. Third, are there additional factors relevant solely in the

military environment that affect the nature and reach of the Lawrence liberty interest? 

2

The 1957 Crittenden Report and the 1988 PERSEREC Report cited at paragraphs 34-35 of Kier Declaration [Dkt. #19].

 ORDER

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lives in matters pertaining to sex”. Lawrence, 539 U.S. at 572. In a series of post-Lawrence decisions,

military courts of appeal have employed a three-part test1

 aimed at implementing the “searching

constitutional inquiry” inferred by that Court from its reading of Lawrence. Military Courts have on

several occasions, subjected military regulations criminalizing sodomy to “as applied” analysis of the facts

and context of a particular case to see how the interests of the military balance against the rights of a

service member. See United States v. Marcum, and United States v. Stirewalt, 60 M.J. 297 (C.M.A.

2004). In those cases the criminalization of sodomy was affirmed because the acts occurred under

circumstances casting doubt on the element of consent.

Despite the fact that the Marcum test has only been applied in cases where there has been

constitutional challenges to the criminalization of sodomy, plaintiff urges this Court to engage in an “as

applied” analysis. She argues that her exemplary military service coupled with the fact that the conduct in

question applied off-base, in private, with a consenting adult, tip the balance in her favor and compels a

decision that DADT is unconstitutional as applied to her.

If the Court finds those arguments unpersuasive, plaintiff argues that even under rational basis

review, the military has no legitimate interest in enforcing the DADT regulations against homosexual

service members. Reference is made to past efforts to stop the integration of blacks and women into the

armed forces; efforts bolstered by arguments that history and common sense proved wrong. More to the

point, plaintiff cites internal studies of the Defense Department that have reached the conclusion that there

is no evidence to support the military’s discriminatory policy toward homosexuals.2

 Plaintiff argues further

that the government policy is counterproductive to unit cohesion and military effectiveness, in part,

because it promotes prejudice and dishonesty among comrades in arms.

This Court is not unsympathetic to the situation in which Major Witt currently finds herself. Within

the military context, she did not draw attention to her sexual orientation, and her colleagues value her

contribution to their unit and apparently want her back. She has served her country faithfully and with

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distinction. It is tempting to accept plaintiff’s urging to apply DADT narrowly within the context of

Margaret Witt’s individual circumstances. This the Court cannot do. 

The question before this Court renews the tension between competing notions of liberty expressed

within the Constitution and the Bill of Rights. One concept of liberty is the interest in expanding individual

rights. The other reflects on the ability of a free people to govern themselves. The expansion of one often

times occurs at the expense of the other. The judicial branch of the government has a critical but restrained

role to play as these core ideals evolve in a modern society. As the Supreme Court has observed

previously: “A substantive due process analysis must begin with a careful description of the asserted right,

for the doctrine of judicial self-restraint requires the Supreme Court to exercise the utmost care whenever

it is asked to break new ground in such field.” Reno v. Flores, 507 U.S. 292, 302 (1993) (citing Collins v.

Harker Heights, 503 U.S. 115, 125 (1992)).

Viewing the written opinion of Lawrence through the lens of judicial self-restraint, the Court is

convinced that Lawrence v. Texas did not change constitutional jurisprudence in a way that impacts the

validity of DADT. 

First, the holding in Lawrence states: “The Texas statute furthers no legitimate state interest which

can justify its intrusion into the personal and private life of the individual.” 539 U.S. at 578. This is classic

language used in rational basis analysis. 

Second, the Court did not engage in any inquiry to determine whether the law in question was

narrowly tailored to meet a compelling state interest. That “as applied” analysis is required as a part of any

strict scrutiny or intermediate review. 

Third, the absence of a clear statement that the Court was changing the level of scrutiny directed to

laws regulating private, consensual same sex intimacy was no accident. In a vigorous dissent Justice Scalia

repeatedly reminded the Court that it had applied rational basis review and reached a conclusion with

which he disagreed. It is not unreasonable to expect that if the majority thought the dissenting judges

misunderstood a material aspect of the opinion, it offer up a succinct, clear clarification. It did not. This

Court concludes that Lawrence is based on rational basis review; the same level of scrutiny applied by the

Ninth Circuit Court of Appeals in upholding the constitutionality of DADT prior to Lawrence. See

Holmes, 124 F.3d 1126 and Phillips, 106 F.3d 1420. The Ninth Circuit declined in Hensala v. Dept. of the

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Air Force, 343 F.3d 951 (9th Cir. 2003) to decide whether Lawrence v. Texas effectively overruled

Holmes. This Court agrees with the concurring opinion by Judge Tashima that it did not.

B. Rational Basis Review

Rational basis review does not allow for the kind of balancing test between government interest and

interest of the individual advocated by the plaintiff. In order to show that the statute and accompanying

regulations comprising DADT are invalid, plaintiff must show that they are not rationally related to any

legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 320 (1993). The bar is set very high for

plaintiff. “Rational-basis review . . . is not a license for courts to judge the wisdom, fairness, or logic of

legislative choices.” Id. at 319. A statute is presumed constitutional and the burden is on plaintiff to

negate every conceivable basis which might support it. Id. at 320-21. Courts are compelled under rational

basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and

ends. Id. at 321. 

Finally, Court review of Congressional enactments is especially deferential in the military context. 

Goldman v. Weinberger, 475 U.S. 503, 508 (1986). “It is difficult to conceive of an area of governmental

activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

The government’s rationale for DADT is that excluding from military service homosexuals who

engage in or have the propensity to engage in homosexual acts further discipline and combat readiness in

the military by preventing risks to unit cohesion posed by the presence of such homosexuals. See 10

U.S.C. § 654(a)(15). This conclusion on the part of Congress was reached following extensive hearings in

which testimony was received from military commanders, gay rights activists, experts in military personnel

policy and other interested civilians and members of the Armed Forces. Moreover, these hearings received

the benefit of self-analysis conducted from within the Department of Defense. The Congressional Record

on this topic is voluminous. The government’s interest in maintaining effective armed forces has been

repeatedly upheld by the Ninth Circuit, Holmes, 124 F.3d at 1133, and every court, before and after

Lawrence, has upheld the constitutionality of DADT under rational basis review. See also Cook v.

Rumsfeld, 429 F. Supp.2d 385 (D. Mass. 2006). It is not for this Court, on rational basis review, to

conduct a re-weighing of the evidence that was before the legislative decision-makers. See Rotsker v.

Goldberg, 453 U.S. 57, 82-83 (1981). Don’t Ask, Don’t Tell represents a rational response to a legitimate

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governmental concern. 

III. Equal Protection Analysis

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall deny to

any person within its jurisdiction the equal protection of the laws. In other words, persons similarly

situated should be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439

(1985). It is generally accepted that the Due Process clause of the Fifth Amendment imposes an equal

protection obligation upon the federal government as well. High Tech Gays v. Defense Indus. Sec.

Clearance Office, 895 F.2d 563, 570 (9th Cir. 1990).

Since homosexuals do not constitute a suspect or quasi-suspect class, the Ninth Circuit Court of

Appeals subjected DADT to rational basis review. In Holmes, the Court upheld DADT under rational

basis review and that holding was not affected by the later Supreme Court decision in Lawrence. 

IV. First Amendment Analysis

The plaintiff’s complaint alleges that any discharge of Major Witt pursuant to DADT would violate

the free speech clause of the First Amendment. [Complaint, para. 33, Dkt. #1]. The Ninth Circuit has

decided the issue where, as here, the discharge was for conduct, and not merely for speech. The Holmes

court cited to Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) and Pruitt v. Cheney, 963 F.2d 1160, 1164

(9th Cir. 1991) in support of its holding. In Thomasson, the Navy discharged Lieutenant Thomasson after

he submitted a written statement indicating that he was gay and then failed to rebut the presumption by

presenting any specific evidence that he did not engage, nor intend to engage, in homosexual acts. The

Fourth Circuit held that the statement prong of DADT is not directed at speech and therefore does not

violate the First Amendment. 

Pruitt was discharged under the pre-DADT regulations when she admitted her homosexual

orientation. Pruitt, a Methodist minister and U.S. Army reservist gave an interview to the Los Angeles

Times in which she revealed that she was a lesbian and had twice gone through marriage ceremonies to

wed other women. The Ninth Circuit ruled that her First Amendment rights were not violated by Pruitt’s

discharge. Although the Court did find that Pruitt’s complaint presented a plausible equal protection claim,

that conclusion did not prevail when applied to DADT in subsequent cases. Because this case involved

acknowledged homosexual conduct, albeit not on base, the First Amendment right to free speech is not

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Plaintiff further argues DADT’s irrebuttable presumption that homosexuals are unfit for service violates her procedural

due process rights. DADT requires the separation of a service member who has engaged in or sought to engage in homosexual

conduct, unless he or she can establish the application of a series of exceptions to the policy. These exceptions, found at 10 U.S.C.

§654(b)(1)(A) through (E), apply only where the service member can establish that he or she is not a homosexual and is not likely

to engage in any homosexual acts during his or her service. DADT does not have any exceptions allowing a sexually active

homosexual service member to remain in the service. 

Plaintiff’s argument is based on the correct assertion that irrebuttable presumptions that burden liberty interests protected

by substantive due process violate procedural due process. As discussed at length above, there is no liberty interest protected by

substantive due process at stake here. Plaintiff’s argument that DADT creates a constitutionally impermissible irrebuttable

presumption is therefore rejected. 

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implicated. Similarly, the action pursued by the Air Force is not based purely on Major Witt’s status as a

homosexual. The status cases cited by plaintiff are therefore unavailing.

During oral argument, plaintiff’s counsel borrowed from First Amendment case law to argue that

private, consensual, same sex intimacy is a fundamental right. Citing Board of Directors of Rotary

International v. Rotary Club of Duarte, 481 U.S. 537 (1987), counsel pointed out that the Courts have

recognized that the freedom to enter into and carry on certain intimate or private relationships is a

fundamental element of liberty protected by the Bill of Rights. In Rotary, the international organization

was advancing its prohibition of women members based, in part, on this claimed liberty interest. The

Supreme Court acknowledged that the First Amendment protects those relationships, including family

relationships, that presuppose “deep attachments and commitments to the necessarily few other individuals

with whom one shares not only a special community of thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life.” Id. at 545 (citing Roberts v. United States Jaycees, 468 U.S.

609, 619-620 (1984)). In rejecting the argument, the Court cautioned that it had “not attempted to mark

the precise boundaries of this type of constitutional protection.” Id. at 545. 

Nearly twenty years after the Rotary decision, no court has applied its holding to same sex intimate

conduct. The Rotary decision, applied literally to the case at hand, would suggest that persons in the

military do not have a fundamental constitutional right to limit their association to heterosexuals. That is

not the question confronting this Court. The question before this Court is: “Does Congress have the

authority to regulate the military in a manner which excludes persons who engage in homosexual

conduct?” For the reasons stated earlier, the Court believes the answer is in the affirmative. 

V. Procedural Due Process Analysis

Plaintiff argues3

 that procedural due process requires a reasonably prompt post-suspension hearing. 

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She points out that she has been suspended from duty since November of 2004, during which time she

cannot earn pay or earn points for promotion or pension. It was not until March 6, 2006 that plaintiff was

notified that steps were being taken to separate her from the military. No discharge hearing has yet been

scheduled. She advocates the Court should bar her separation as an appropriate sanction. The

government, on the other hand, asserts that no property or liberty interest is at stake and procedural due

process principles do not apply.

The central meaning of procedural due process is that parties whose rights are to be affected are

entitled to be heard; and in order that they may enjoy that right they must first be notified. The right to

notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. 

Fuentes v. Shevin, 407 U.S. 67, 80 (1983) (internal citations omitted). In order to succeed on a procedural

due process challenge there must be a 1) deprivation, 2) of property, liberty, or life, 3) without due process

afforded by law. 

The parties acknowledge that there is no property or life interest at stake in this dispute. As a

reservist, plaintiff does not have a property interest in continued employment in the military. Beller v.

Middendorf 632 F.2d 788 (9th Cir. 1980); see also Guerra v. Scruggs, 942 F.2d 270, 278 (4th Cir. 1991)

(finding that there was no property interest in military employment and the Army had discretion to

discharge personnel); Knehans v. Alexander, 566 F.2d 312, 314 (D.C. Cir. 1977); Ampleman v.

Schlesinger, 534 F.2d 825, 827-29 (8th Cir. 1976); Sims v. Fox, 505 F.2d 857, 860-62 (5th Cir. 1974);

BenShalom v. Secretary of Army, 489 F.Supp. 964, 971-72 (E.D. Wis. 1980). Plaintiff argues that a

liberty interest is affected by the manner in which the Air Force may characterize her ultimate discharge: 

general or dishonorable. The liberty guaranteed by the Fourteenth Amendment [and Fifth Amendment]

“denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage

in any of the common occupations of life . . . and generally to enjoy those privileges long recognized . . . as

essential to the orderly pursuit of happiness by free men.” Board of Regents v. Roth, 408 U.S. 564, 572

(1972). A liberty interest vests if there is imposed “a stigma or other disability that foreclose[s] . . .

freedom to take advantage of other employment opportunities.” Id. at 573. Plaintiff argues that a general

or dishonorable discharge reflecting lack of fitness for military service triggers such a stigma.

The government argues no such stigma has yet occurred. The parties dispute what form of

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Administrative separation under DADT results in a discharge characterized as Honorable, General, or Under Other

Than Honorable Conditions. Of those separated under DADT as of 2005, 82% were with an Honorable Discharge, 13% a General

Discharge, and 5% an Other Than Honorable Discharge. GAO Report, GAO-05-299, 3 (23 Feb. 2005). 

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discharge is likely in the case of Major Witt. The government argues that an honorable discharge is most

likely. The Court’s own research suggests that 82% of all discharges under DADT4

 have been honorable. 

Certainly, the distinction of Major Witt’s career would support an honorable discharge. Involuntary

separation from military service with an honorable discharge, absent something more, does not infringe

upon a constitutionally protected liberty interest. See Sims, 505 F.2d at 862-63 (holding that liberty

interests are involved only when separation from the military is carried out in such a fashion as to

stigmatize the separated member, typically this would be a dishonorable discharge); BenShalom, 489

F.Supp. at 971-972; Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir. 1978). 

This Court does not believe that at the current time Major Witt has any liberty interest which

required an earlier hearing. A service member does not have a liberty interest which would trigger due

process rights prior to her discharge, absent any showing that the stated reason for the discharge is untrue. 

See Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991). Here, the plaintiff acknowledges the truthfulness of

the allegations that implicate DADT. Nevertheless, military authorities may not be permitted to discharge

a service member with an unfair and derogatory characterization of their military service without full due

process being afforded. Canonica v. United States, 41 Fed. Cl. 516 (1998). Where the discharge is

honorable and carries no stigma or derogatory connotation, it may be validly accomplished without notice

and hearing. Lane v. Secretary of Army, 504 F.Supp. 39 (D. Md. 1980), aff’d 639 F.2d 780 (4th Cir.

1980). At this time there is no reason to believe that the discharge of Major Witt will be anything less than

honorable or that it will reflect any stigmatizing language or derogatory connotation. 

CONCLUSION

Prior to Lawrence v. Texas, DADT had been found constitutional under equal protection analysis

and First Amendment case law. Similar provisions had passed constitutional muster under substantive due

process review. The majority opinion in Lawrence did not change the framework within which DADT

should be evaluated. Accordingly, prior case law approving DADT is not affected and DADT remains

constitutional as a regulation upon individual conduct. Moreover, plaintiff fails to demonstrate that her

interest in liberty is affected by the government’s effort to separate her from military service. There has

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28

 ORDER

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been no violation of her procedural due process rights. Accordingly, plaintiff cannot state a cause upon

which relief may be granted and, the government’s motion to dismiss [Dkt. #24] is hereby GRANTED. 

Plaintiff’s motion for preliminary injunction [Dkt. #8] is DENIED. All other pending motions are

DENIED as moot. 

IT IS SO ORDERED.

DATED this 26th day of July, 2006.

ARONALD B. LEIGHTON

UNITED STATES DISTRICT JUDGE

Case 3:06-cv-05195-RBL Document 35 Filed 07/26/06 Page 12 of 12