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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 1

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

 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.

 

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No. C06-5195 RBL

DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO

PLAINTIFF’S MOTION FOR

PRELIMINARY INJUNCTION

(Note Defendant’s Motion to Dismiss on

Motion Calendar for June 9, 2006)

Defendants, by and through undersigned counsel, respectfully move this Court pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff’s complaint for

failure to state a claim upon which relief can be granted. Defendants additionally submit the

following opposition to Plaintiff’s Motion for Preliminary Injunction.

I. INTRODUCTION

Plaintiff is a commissioned officer in the Air Force Reserves who has admittedly engaged

in a sustained pattern of homosexual conduct. In November 2004, the Air Force suspended

plaintiff without pay or retirement points under the “Don’t Ask, Don’t Tell” (“DADT”) policy,

as codified in statute, 10 U.S.C. § 654 (1993), and as implemented in Air Force Instruction

(“AFI”) 36-3209. From that time forward, plaintiff did not avail herself of her ability to

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 2

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

challenge her suspension through application to the Air Force Board for Correction of Military

Records. Now, approximately 17 months after her suspension, plaintiff has initiated this action

and the accompanying motion for a preliminary injunction. These filings seek not only to

preclude plaintiff’s suspension but also to bar the Air Force from discharging her – even before

the Air Force has determined whether plaintiff will be discharged. Moreover, in addition to

litigating the question of her discharge through this action in federal court, plaintiff has requested

a hearing in front of an Air Force Discharge Board. 

Despite the legal reality that the constitutionality of the DADT policy has been uniformly

upheld by circuit courts, plaintiff’s action raises several constitutional challenges to the DADT

policy. Like others before hers, plaintiff’s action that is premised on an alleged constitutional

infirmity with the DADT policy must be dismissed for failure to state a claim for relief, as

summarized below.

With respect to her substantive due process challenge, plaintiff mistakenly contends that

Lawrence v. Texas, 539 U.S. 558 (2003), recognizes a fundamental right to engage in consensual

homosexual conduct. It does not. Nor does Lawrence disturb the Ninth Circuit precedent

upholding the DADT policy under rational basis review. See Holmes v. Cal. Army Nat’l Guard,

124 F.3d 1126 (9th Cir. 1997); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997). Like the Ninth

Circuit, Lawrence applied rational basis review. 

Plaintiff next argues that the DADT policy creates an unconstitutional irrebuttable

presumption under procedural due process. Plaintiff is incorrect. The irrebuttable presumption

doctrine has been limited and discredited over the years. Whatever remains of the doctrine is

governed by rational-basis review, see Burlington N. R.R. Co. v. Dep’t of Pub. Serv., 763 F.2d

1106, 1113 (9th Cir. 1985), which again the DADT policy has survived many times over.

 Plaintiff also contends that she has been denied her procedural due process right to a

hearing on her suspension. There is no basis for this assertion because in the 17 months since

her suspension plaintiff has not sought to challenge her suspension through the Air Force Board

for Correction of Military Records, as she is permitted to do. Instead plaintiff now moves for

preliminary injunctive relief now to restrain her discharge from the Air Force. Moving for such

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 3

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

ultimate relief in a preliminary injunction is inappropriate and illogical, especially since plaintiff

has not been discharged yet. 

More broadly, all of plaintiff’s due process counts also fail because plaintiff has not

identified a deprivation of her life, liberty, or property interests. As a Reservist, plaintiff has not

property interest in her continued employment in the Reserves. See Sims v. Fox, 505 F.2d 857,

862 (5th Cir. 1974); Alberico v. United States, 783 F.2d 1024, 1027 (Fed. Cir. 1986). Nor has

plaintiff suffered any injury to her liberty interest in her reputation, since she admits that she

engaged in consensual homosexual conduct.

Plaintiff similarly fails to state an equal protection claim. Homosexuals or persons who

engage in homosexual conduct are neither a suspect class, nor a quasi-suspect class. See

Holmes, 124 F.3d at 1132; Philips, 106 F.3d at 1425. Thus, rational basis review applies, which

the DADT policy undisputably satisfies.

Plaintiff’s First Amendment count is premised on her discharge from the Air Force, an

event that has not yet occurred. Beyond its prematurity, Courts have repeatedly sustained DADT

against First Amendment challenges. See Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1430. 

In addition to the failure of plaintiff’s action to state a claim for relief, plaintiff’s motion

for a preliminary injunction fails. At the outset, it must be recognized that Courts exercise a high

level of deference when reviewing a request to review a military personnel decisions – a

standard that can only be heightened in the context of a preliminary injunction. Plaintiff fails to

meet her high burden with respect to a preliminary injunction, as briefly set forth below.

As made clear from the reasons that plaintiff’s complaint should be dismissed, plaintiff

does not have a likelihood of success on the merits.

Plaintiff’s inability to earn retirement points and pay through service in the Reserves does

not rise the level of being an judicially recognized irreparable injury. Plaintiff could have

pursued other employment to mitigate these losses, and plaintiff has had the opportunity to

contest her suspension through the Air Force Board for Correction of Military Records. Nor is

the prospect of discharge from the military an irreparable injury, see Chilcott v. Orr, 747 F.2d

29, 34 (1st Cir. 1984).

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 4

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

Finally, granting a preliminary injunction here would contravene public interest by

interfering with the legislature and executive’s control over the military, and it would impede the

military’s ability to make personnel decisions with minimal judicial interference.

For these reasons, plaintiff’s action should be dismissed, and her motion for a preliminary

injunction should be denied.

II. THE CHALLENGED STATUTE AND INSTRUCTION

The so-called “Don’t Ask, Don’t Tell” policy, as codified at 10 U.S.C. § 654, became law

in 1993. It represented a culmination of a joint effort by the Executive and Legislative Branches

to reach consensus on the controversial issue of homosexual conduct by members of the armed

services. On January 29, 1993, President Clinton directed the Secretary of Defense to review the

military policy then in force. See 29 Weekly Comp. Pres. Doc. 112 (1993). The Defense

Department studied the issue and met with groups and individuals holding a wide spectrum of

views. At the same time, Congress undertook its own extensive review of homosexual conduct

in the Armed Forces, holding multiple hearings over several months on the topic and receiving

testimony from military commanders, gay rights activists, experts in military personnel policy,

and many interested civilians and members of the Armed Forces. As part of its legislative

decision-making process, Congress examined the historical background of the military’s policy

on homosexual conduct, the role of unit cohesion in developing combat readiness, and the

experience of foreign militaries with the issue. See S. Rep. No. 103-112, at 269-70 (1993). 

Notable among the testimony that Congress considered was that of General Colin Powell,

who was then Chairman of the Joint Chiefs of Staff. He explained that the Joint Chiefs had

“spent an enormous amount of time considering this issue,” “challeng[ing their] own

assumptions,” considering “the history of the issue,” and “argu[ing] with each other.” Id. at 279. 

General Powell further testified that the Joint Chiefs consulted with a variety of persons,

including commanders at every level, enlisted troops, and family members of service members. 

Id. They also examined the arguments of gay/lesbian rights proponents. Id. General Powell

emphasized that the Joint Chiefs’ concern was “the unique perspective of the military and what

is best for military effectiveness.” Id. They concluded that the presence of persons in the

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 5

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

military who engage in, or are likely to engage in, homosexual acts “would have an unacceptable

detrimental and disruptive impact on the cohesion, morale, and esprit of the armed forces.” Id. at

278.

Following extensive debate, President Clinton announced (29 Weekly Comp. Pres. Doc.

1369 (1993)), and Congress enacted a new statute governing homosexual conduct in the Armed

Forces. See National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160,

§ 571, 107 Stat. 1670-73, codified at 10 U.S.C. § 654. The resulting statute, 10 U.S.C. § 654, is

grounded in fifteen legislative findings. 10 U.S.C. § 654(a). Those include Congress’s

recognition that “[m]ilitary life is fundamentally different from civilian life” because of “the

extraordinary responsibilities of the armed forces, the unique conditions of military service, and

the critical role of unit cohesion.” § 654(a)(8)(A). Accordingly, “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.” § 654(a)(8)(B). In addition,

Congress also understood that “[t]he 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,” § 654(a)(9) and that “[t]hose 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.” § 654(a)(10). Congress also concluded that:

 (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 and 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 high standards of morale, good order and discipline, and unit

cohesion that are the essence of military capability.

§§ 654(a)(13)-(15).

Case 3:06-cv-05195-RBL Document 24 Filed 05/08/06 Page 5 of 26
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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 6

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

Based on these Congressional findings, § 654 then provides for separation from service

in three situations related to homosexual conduct by a member of the armed forces. § 654(b). 

As relevant in this case, separation is provided for where a member has “engaged in, attempted

to engage in, or solicited another to engage in a homosexual act.” § 654(b)(1). But, separation

for engaging in homosexual conduct is not required if the service member can demonstrate that

he or she has satisfied all of the following criteria:

(A) Such conduct is a departure from the member’s usual and customary

behavior; 

(B) Such conduct, under all the circumstances, is unlikely to recur; 

(C) Such conduct was not accomplished by use of force, coercion, or

intimidation; 

(D) Under the particular circumstances of the case, the member’s continued

presence in the armed forces is consistent with the interests of the armed

forces in proper discipline, good order, and morale; 

and 

(E) The member does not have a propensity or intent to engage in homosexual

acts.

§ 654(b)(1). 

With regard to members of the Reserves, the Air Force has issued Air Force Instruction

36-3209, which incorporates the principles of § 654 into its procedures for separation from the

Reserves. Air Force Instruction 36-3209 sets forth Air Force policy implementing § 654, see

AFI 36-3209 § 1.15. Further, AFI 36-3209 mirrors § 654’s language with respect to situations

where discharge will occur, see, e.g., § 2.30.1. And, the instruction also provides procedural

safeguards for this separation process, by providing an opportunity to avoid discharge by making

the five showings set forth in § 654(b)(1), see AFI 36-3209 §§ 1.15, 2.30.1.1., and by entitling a

service member to a hearing before an Air Force Discharge Board before being discharged for

homosexual conduct, see AFI 36-3209 § 2.30.2. 

III. ARGUMENT

A. This action should be dismissed because Plaintiff fails to state a claim for relief.

1. Standard for motion to dismiss.

Under Fed. R. Civ. P. 12 (b)(6), a complaint should be dismissed if, after reviewing the

complaint in the light most favorable to the plaintiff, it appears that the plaintiff can prove no set

of facts in support of the claim which would entitle plaintiff to relief. Smilecare Dental Group v.

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 7

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir. 1996); Kowal v. MCI

Communications Corp, 16 F.3d 1271, 1276 (D.C. Cir. 1994). Applying the above standard,

plaintiff’s case must be dismissed for failure to state a claim upon which relief can be granted.

2. Ninth Circuit precedent uniformly rejects plaintiff’s challenges to the

constitutionality of the DADT policy.

The constitutionality of the DADT policy has been repeatedly affirmed by an unbroken

line of Ninth Circuit precedent and by decisions from other Circuits. See Holmes v. Cal. Army

Nat’l Guard, 124 F.3d 1126, 1134 (9th Cir. 1997) (observing that “our own circuit precedent

plus the authority from every other circuit court that has addressed this issue establishes that the

military has a legitimate interest in discharging service members on account of homosexual

conduct”). In light of this controlling precedent, it is clear that “‘[a]ny argument that Congress

was misguided in [concluding that homosexual conduct would affect military effectiveness] is

one of legislative policy, not constitutional law.’” Id. (quoting Thomasson v. Perry, 80 F.3d 915,

929 (4th Cir. 1996) (en banc)). As demonstrated below, moreover, this line of circuit precedent

is not altered by the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). 

Accordingly, plaintiff’s challenges to the constitutionality of 10 U.S.C. § 654 and AFI 36-3209

should be dismissed, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which

relief can be granted.

This circuit has consistently upheld the military’s authority under the DADT policy to

discharge those who engage in homosexual conduct, as well as under the prior no-tolerance

policy for homosexual conduct in the military. The current DADT policy was sustained against

due process, equal protection, and First Amendment challenges in Holmes v. California Army

National Guard, 124 F.3d 1126 (9th Cir. 1997), and against equal protection and First

Amendment challenges in Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997). The military’s

previous policy was upheld against a First Amendment challenge in Pruitt v. Cheney, 963 F.2d

1160 (9th Cir. 1992), and against a due process challenge in Beller v. Middendorf, 632 F.2d 788

(9th Cir. 1980). 

Other circuits have similarly and unanimously upheld the military’s policies regarding

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 8

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

homosexual conduct. See Able v. United States, 155 F.3d 628, 631-36 (2d Cir. 1998) (upholding

the DADT policy); Richenberg v. Perry, 97 F.3d 256, 260-62 (8th Cir. 1996) (same); Thomasson

v. Perry, 80 F.3d 915, 927-31, 934 (4th Cir. 1996) (en banc) (same); Walmer v. United States, 52

F.3d 851, 854-55 (10th Cir. 1995) (upholding old policy); Woodward v. United States, 871 F.2d

1068, 1076 (Fed. Cir. 1989) (same); Dronenburg v. Zech, 741 F.2d 1388, 1391-98 (D.C. Cir.

1984) (same); Rich v. Secretary of Army, 735 F.2d 1220, 1227-30 (10th Cir. 1984) (same). 

Nor does the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003),

disturb the force of this line of precedent. The longstanding rule in the Ninth Circuit is that, “[a]

three-judge panel can overrule a prior decision of this court [only] when an intervening Supreme

Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely

on point.” E.E.O.C. v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 744 n.1 (9th Cir.

2003) (en banc) (internal quotation marks and citations omitted); accord Miller v. Gammie, 335

F.3d 889, 899-900 (9th Cir. 2003) (en banc) (same); Benny v. U.S. Parole Comm’n, 295 F.3d

977, 983 (9th Cir. 2002) (explaining that a panel is bound by the decisions of prior panels

“unless an en banc decision, Supreme Court decision or subsequent legislation undermines those

decisions.”). A fortiori, this Court is bound by the Ninth Circuit’s decisions in Holmes and

Philips unless Lawrence is “closely on point.” That is not the case here. 

To begin with, Lawrence did not address a policy, as here, implicating the “‘special

circumstances and needs of the armed forces.’” Philips, 106 F.3d at 1426 (quoting Beller, 632

F.2d at 810). This distinction is significant due to the deference owed by the judiciary to the

legislative and executive branches in the area of military policy. The Supreme Court has

explained that “[t]he constitutional power of Congress to raise and support armies and to make

all laws necessary and proper to that end is broad and sweeping,” United States v. O’Brien, 391

U.S. 367, 377 (1968), and that “‘judicial deference * * * is at its apogee’ when Congress

legislates under its authority to raise and support armies.” Rumsfeld v. Forum for Academic &

Institutional Rights, Inc., 126 S. Ct. 1297, 1306 (2006) (quoting Rostker v. Goldberg, 453 U.S.

57, 70 (1981); see Thomasson, 80 F.3d at 924 (“The Constitution assigns the conduct of military

affairs to the Legislative and Executive branches,” and “[t]here is nothing timid or half-hearted

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 1 The panel majority in Hensala did not take issue with Judge Tashima’s analysis, but instead chose

not to address the question of whether Lawrence called into question prior circuit precedent because it

had not been addressed by the district court. See id. at 956 (“Because the claim has not been presented

to the district court, we decline to address it on appeal.”); id. at 959 (“We need not, and do not, reach the

question of whether [Lawrence] has effectively overruled Holmes.”).

(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 9

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

about this constitutional allocation of authority.”). “This is especially the case where, as here,

the challenged restriction was the result of exhaustive inquiry by Congress in hearings,

committee and floor debate.” Able, 155 F.3d at 632 (citing Rostker, 453 U.S. at 64, 72). 

Compounding the deference due to legislative and executive branches is the Supreme Court’s

recognition of the judiciary’s limitations in this area:

[I]t is difficult to conceive of an area of governmental activity in which the courts

have less competence. The complex, subtle, and professional decisions as to the

composition, training, equipping, and control of military force are essentially

professional military judgments, subject always to civilian control of the

Legislative and Executive Branches.

Gilligan v. Morgan, 413 U.S. 1, 10 (1973). 

Here, in enacting the challenged statute, the Senate Armed Services Committee expressly

stated that its policy regarding homosexual conduct was based on the unique needs and

circumstances of military life and military service:

The committee’s review and its recommendation have focused on the impact of

homosexual conduct in the unique setting of military service. Therefore, if the

Supreme Court should reverse its ruling in [Bowers v. Hardwick, 478 U.S. 186

(1986)] and hold that private consensual homosexual acts between adults may not

be prosecuted in civilian society, this would not alter the committee’s judgment as

to the effect of homosexual conduct in the armed forces. The committee finds

that there are no significant developments in civilian society that would require a

change in military policy.

S. Rep. No. 103-112, at 287 (emphasis added). Thus, as Judge Tashima has persuasively

analyzed, “Lawrence does not impliedly overrule [the Ninth Circuit’s decision in] Holmes. 

Holmes was based on the special needs of the military, a subject that Lawrence does not address. 

Thus, the two cases are not ‘closely on point,’ and Holmes remains the law of the circuit.” 

Hensala v. Dep’t of Air Force, 343 F.3d 951, 959 n.1 (9th Cir. 2003) (Tashima, J., concurring in

part and dissenting in part) (internal quotations and citations omitted).1

To further distinguish Lawrence, it addressed the type of constitutional challenge that

then-Judge Kennedy noted was not at issue in Beller – “ones in which the state seeks to use its

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 10

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

criminal processes to coerce persons to comply with a moral precept even if they are consenting

adults acting in private without injury to each other.” 632 F.2d at 810 (emphasis added). See

Lawrence, 539 U.S. at 578 (holding that “[t]he State cannot demean their existence or control

their destiny by making their private sexual conduct a crime.”). That the challenged statute and

implementing regulations do not impose criminal penalties further distinguishes this case from

Lawrence, and refutes plaintiff’s assertion that § 654 must be subjected to heightened scrutiny. 

Also, in direct contradiction to plaintiff’s assertions, the Supreme Court did not

characterize the right at issue in Lawrence as being “fundamental,” nor did the Court apply strict

scrutiny, the proper standard when fundamental rights are implicated. To the contrary, the Court

invalidated the Texas statute on rational-basis grounds, holding that it “furthers no legitimate

state interest which can justify its intrusion into the personal and private life of the individual,”

539 U.S. at 578, which is the hallmark of rational basis review. As the United States District

Court for the District of Massachusetts has recently explained in dismissing a like constitutional

challenge to the DADT policy: 

[B]eyond what the Lawrence majority said or did not say, there is the matter of

what it actually did, which was, apparently, to review the challenged Texas

statute under the standard of review appropriate when there is not a fundamental

interest at stake. If the Lawrence court had been evaluating the constitutionality

of the Texas statute under the more exacting standard applicable to cases where

fundamental interests are at stake, it would instead have asked whether the state

interest was “compelling,” rather than whether it was “legitimate.” Thus, by the

standard of review it applied, the Lawrence Court signaled that it did not consider

that a fundamental liberty interest arising under the Due Process Clause was

implicated.

Cook v. Rumsfeld, No. 04-12546, 2006 WL 1071131, at *7 (D. Mass. April 24, 2006)) (internal

citation and footnote omitted); accord Muth v. Frank, 412 F.3d 808, 817-18 (7th Cir. 2005)

(finding that Lawrence did not announce a fundamental right of adults to engage in all forms of

private consensual sexual conduct); Lofton v. Sec’y Dep’t Children & Family Servs., 358 F.3d

804, 816 (11th Cir. 2004) (stating that “language and reasoning [of Lawrence] are inconsistent

with standard fundamental-rights analysis.”), cert. denied, 543 U.S. 1081 (2005); Loomis v.

United States, 68 Fed. Cl. 503, 518 (Fed. Cl. 2005) (“The fact remains that the [Supreme] Court

did not hold that sodomy is a fundamental right.”). Thus, by applying rationality review, the

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 11

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

Supreme Court in Lawrence followed the exact same level of constitutional scrutiny as the Ninth

Circuit did in Holmes, Philips, Pruitt, and Beller. 

In sum, the Lawrence holding does not disturb the Ninth Circuit precedent upholding the

constitutionality of the DADT policy. First, Lawrence is not on point – it did not involve

military personnel decisions, but it did involve criminal punishments, which are not at issue here. 

And second, despite these differences, Lawrence applied rational basis review as the Ninth

Circuit has done in upholding DADT policy. In short, then, plaintiff’s substantive due process,

equal protection, and First Amendment challenges to the DADT policy should be dismissed with

prejudice because plaintiff has no basis in law for those claims.

3. Plaintiff does not state a claim for a due process violation.

a. Plaintiff’s substantive due process rights have not been injured.

Plaintiff does not state a claim for a violation of substantive due process. As explained

above, plaintiff is incorrect in asserting that Lawrence recognized a fundamental right to engage

in consensual homosexual acts. Lawrence, 539 U.S. at 586 (Scalia, J., dissenting); Cook, 2006

WL 1071131, at *7; Loomis, 68 Fed. Cl. at 518. Without a fundamental right at issue, the

rational basis test governs the review of the DADT policy. See Washington v. Glucksberg, 521

U.S. 702, 728 (1997). Also, as made clear above, courts show extreme deference in reviewing

military policies. Rostker, 453 U.S. at 70; Thomasson, 80 F.3d at 924. Applying these

principles here leaves no doubt that § 654 and AFI 36-3209 do not offend substantive due

process protections.

After extensive hearings, Congress found that service “in the armed forces of persons

who demonstrate a propensity or intent to engage in homosexual acts would create an

unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion

that are the essence of military capability.” 10 U.S.C. § 654(a)(15). Congress had ample

grounds for reaching this informed, rational judgment, notably its goal of promoting unit

cohesion, reducing sexual tension, and protecting personal privacy. 

Congress found that members of the military may be required “to make extraordinary

sacrifices, including the ultimate sacrifice, to provide for the common defense.” § 654(a)(5). In

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 12

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

order to achieve success in combat, Congress found it was necessary that military units be

characterized by “high morale, good order and discipline, and unit cohesion.” § 654(a)(6). As

the Senate Armed Services Committee recognized, members of the Armed Forces “are not

recruited for a single job at a single location. They must be capable of serving not as an

individual, but as a member of a team, in a variety of assignments and locations, often under

dangerous and life-threatening conditions.” S. Rep. No. 103-112, at 273. Congress therefore

found that “[o]ne 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 unit greater than the sum of the combat effectiveness of the individual unit members.” 

10 U.S.C. § 654(a)(7).

These findings were based on testimony of military leaders on the importance of unit

cohesion. For example, General H. Norman Schwarzkopf, U.S. Army (Ret.), testified that unit

cohesion “is the single most important factor in a unit’s ability to succeed on the battlefield.” 

S. Rep. No. 103-112, at 275. General Colin Powell likewise testified that, “[t]o win wars, we

create cohesive teams of warriors who will bond so tightly that they are prepared to go into battle

and give their lives if necessary for the accomplishment of the mission and for the cohesion of

the group and for their individual buddies.” Id. at 275. 

Congress similarly recognized that unit cohesion is improved by reducing or eliminating

sexual tension from distracting the members of the unit and by protecting the personal privacy of

service members. As the Senate Armed Services Committee recognized, among both

heterosexuals and homosexuals, “[s]exual behavior is one of the most intimate and powerful

forces in society,” and, “[w]hen dealing with issues involving persons of different genders * * *

the armed forces do not presume that servicemembers will remain celibate or that they will not

be attracted to members of the opposite sex. Rather, the military specifically provides men and

women with separate quarters in order to ensure privacy because experience demonstrates that

few remain celibate and many are attracted to members of the opposite sex.” Id. at 284. Indeed,

the Senate Armed Services Committee expressly noted that “[t]he separation of men and women

is based upon the military necessity to minimize conditions that would disrupt unit cohesion,

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 13

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

such as the potential for increased sexual tension that could result from mixed living quarters.”

Id. at 277-78. As General Powell testified, “[c]ohesion is strengthened or weakened in the

intimate living arrangements we force upon our people. * * * In our society gender differences

are not considered conducive to bonding and cohesion within barracks living spaces.” Id. at 278. 

Thus, because “[s]exual behavior is one of the most intimate and powerful forces in society,” id.

at 281, the Senate Armed Services Committee found that it was reasonable for the military to

take these factors into account in establishing gender-based assignment policies. Id. at 278. 

Just as “[i]t is reasonable for the armed forces to take these factors into consideration in

establishing gender-based assignment policies,” it also “is reasonable for the armed forces to

take [them] into consideration when addressing issues concerning persons who engage in or have

the propensity or intent to engage in sexual activity with persons of the same sex.” Id. at 278. 

See Richenberg, 97 F.3d at 262 (“[I]t is rational to assume that both homosexuals and

heterosexuals ‘are likely to act in accordance with their sexual drives.’” (quoting Steffan v.

Perry, 41 F.3d 677, 692 (D.C. Cir. 1994))). As the Senate Armed Services Committee

recognized, it would be “irrational * * * to develop military personnel policies on the basis that

all gays and lesbians will remain celibate or that they will not be sexually attracted to others.” 

S. Rep. No. 103-112, at 278. As noted, the military seeks to reduce sexual tension and protect

personal privacy among heterosexuals by providing men and women with separate berthing and

bathing facilities. In addition to accommodating privacy concerns, the separation by gender

serves to reduce the sexual “temptations facing heterosexuals” who, “like homosexuals, are

likely to act in accordance with their sexual drives” despite rules that bar such sexual encounters. 

Steffan, 41 F.3d at 692. 

But, while the military is able to promote unit cohesion, reduce sexual tension, and

protect personal privacy in the case of heterosexual service members by providing separate

quarters for men and women, such an accommodation is not available for those individuals who

engage in homosexual conduct, “[t]he military could not eliminate the difficulties of quartering

homosexuals with persons of the same sex by totally segregating homosexuals.” Id. at 692. 

Thus, as the en banc D.C. Circuit recognized in Steffan, far from stemming from irrational bias

Case 3:06-cv-05195-RBL Document 24 Filed 05/08/06 Page 13 of 26
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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 14

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

or stereotypes, “heterosexuals and homosexuals are treated differently because the means at the

military’s disposal for dealing with the natural phenomenon of sexual attraction differ for the

two.” Id. Rather, § 654 “accommodates the reasonable privacy concerns of heterosexual service

members and reduces the sexual problems that may arise when some members of the unit have a

propensity or intent to engage in homosexual acts and others do not. These same concerns for

privacy and sexual tension explain the military’s policy of providing service men and women

with separate living quarters.” Thomasson, 80 F.3d at 929-30. 

Thus, in enacting § 654, Congress emphasized that it was attempting to devise a policy

that respects the fact that, in the military setting, homosexuals, unlike heterosexuals, will be

called upon to share intimate living arrangements with individuals to whom they may be

sexually attracted. As General Powell explained:

[O]pen homosexuality in units is not just the acceptance of benign characteristics

such as color or gender or background. It involves matters of privacy and human

sexuality that, in our judgment, if allowed to exist openly in the military, would

affect the cohesion and well-being of the force. It asks us to deal with

fundamental issues that the society at large has not yet been able to deal with.

S. Rep. No. 103-112, at 281. General Powell therefore testified that “it would be prejudicial to

good order and discipline” if the military required heterosexuals and persons who demonstrate

that they do or are likely to engage in homosexual acts “to share the most private facilities

together, the bedroom, the barracks, latrines, and showers.” Id. at 283. The Senate Armed

Services Committee quoted these comments of General Powell and noted that they “do not

reflect an irrational prejudice against gays and lesbians. His comments, which the Committee

endorses, represent a prudent evaluation of the impact of such behavior on the armed forces, and

underscore the fact that the policy is based upon prudence, not prejudice.” Id.

These considerations amply justify the statutory policy enacted by Congress. 

As the Ninth Circuit explained in response to a similar challenge, “the Navy has explained that

in its judgment separating members who engage in homosexual acts is necessary to further

military effectiveness by maintaining unit cohesion, accommodating personal privacy and

reducing sexual tension.” Philips, 106 F.3d at 1429. The Ninth Circuit in Philips continued by

acknowledging that “we cannot say that the Navy’s concerns are based on ‘mere negative

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 15

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

attitudes, or fear, unsubstantiated by factors which are properly cognizable’ by the military. Nor

can we say that avoiding sexual tensions lacks any ‘footing in the realities’ of the Naval

environment in which Philips served.” Id. (quoting Cleburne v. Cleburne Living Ctr., 473 U.S.

429, 448 (1985)). The Second, Fourth, and Eighth Circuits echo this conclusion that the DADT

policy satisfies rational basis review. See Able, 155 F.3d at 636 (holding that “[t]he testimony of

numerous military leaders, the extensive review and deliberation by Congress, and the detailed

findings set forth in the Act itself provide a ‘reasonably conceivable state of facts,’ to uphold the

Act.”); Thomasson, 80 F.3d at 929 (“It was legitimate * * * for Congress to conclude that sexual

tensions and attractions could play havoc with a military unit’s discipline and solidarity. It was

appropriate for Congress to believe that a military force should be as free as possible of sexual

attachments and pressures as it prepared to do battle. Any argument that Congress was

misguided in this view is one of legislative policy, not constitutional law.”); Richenberg, 97 F.3d

at 262 (“Military leaders have determined that excluding those with a propensity to engage in

homosexual acts, like providing separate housing for men and women, reduces sexual tensions

that would jeopardize unit cohesion, the cornerstone of an effective military. * * * Given these

rational concerns, Congress and the President may rationally exclude those with a propensity or

intent to engage in homosexual acts.”). 

b. Nor has plaintiff been denied procedural due process under an

irrebuttable presumption legal theory.

Plaintiff’s procedural due process “irrebuttable presumption” theory of recovery should

similarly be rejected. The so-called irrebuttable presumption doctrine upon which plaintiff relies

has been sharply criticized as enabling boundless judicial rewriting of legislative policy. See

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 652 (1974) (Douglas, J., concurring) (“as a

matter of logic, it is difficult to see the terminus of the road upon which the Court has embarked

under the banner of ‘irrebuttable presumptions.’”); see also Note, The Irrebuttable Presumption

Doctrine in the Supreme Court, 87 Harv. L. Rev. 1534, 1556 (1974) (“There appears to be no

justification for the irrebuttable presumption doctrine.”). Whatever is left of this doctrine has

been limited to the facts of those cases, and has not been extended to other situations such as the

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 16

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

case here, involving a temporary suspension without pay. See Gilbert v. Homar, 520 U.S. 924,

932 (1997) (“Unlike the employee in Loudermill, who faced termination, respondent faced only

a temporary suspension without pay.”). 

Rather, the more appropriate constitutional standard to follow in reviewing legislation

that does not implicate a fundamental right is rational basis review. See Washington v.

Glucksberg, 521 U.S. 702, 728 (1997); Williamson v. Lee Optical Co., 348 U.S. 483, 487-88

(1955). Consistent with the Supreme Court’s guidance, the Ninth Circuit makes explicit that the

irrebuttable presumption doctrine does not apply where a statute passes rationality review: “An

irrebuttable presumption is not per se unconstitutional and does not demand an individualized

hearing so long as it is rational.” Burlington N. R.R. Co. v. Dep’t of Pub. Serv., 763 F.2d 1106,

1113 (9th Cir. 1985). Thus, whatever remains of the irrebuttable presumption doctrine fails to

apply when the presumption at issue is rational. And, as explained above, the DADT statute and

instruction satisfy rationality review, leaving plaintiff without a valid claim.

Plaintiff’s due process challenge also fails because the DADT statute and instruction do

not contain irrebuttable presumptions. Rather, the Air Force specifically provides that a member

who is being discharged is entitled to a hearing in front of a discharge board. AFI 36-3209,

§ 230.2 (Apr. 14, 2005). In addition, the Air Force allows a service member who engaged in

homosexual conduct to avoid discharge by demonstrating the following:

(A) Such conduct is a departure from the member’s usual and customary

behavior; 

(B) Such conduct, under all the circumstances, is unlikely to recur; 

(C) Such conduct was not accomplished by use of force, coercion, or

intimidation; 

(D) Under the particular circumstances of the case, the member’s continued

presence in the armed forces is consistent with the interests of the armed

forces in proper discipline, good order, and morale; 

and 

(E) The member does not have a propensity or intent to engage in homosexual

acts.

10 U.S.C. § 654(b)(1); see also AFI 36-3209, § 230.1.1. By providing this opportunity to

explain instances of homosexual conduct, the Air Force does not irrebuttably presume that a

service member who has engaged in homosexual conduct should be discharged. In short, there is

no irrebuttable presumption at issue here. 

Case 3:06-cv-05195-RBL Document 24 Filed 05/08/06 Page 16 of 26
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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 17

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

For these reasons, resorting to the so-called irrebuttable doctrine does not provide a basis

for relief for plaintiff.

c. Plaintiff has not been denied a right to a hearing.

Plaintiff next argues that the Air Force denied her a reasonably prompt hearing after her

suspension in November 2004. Plaintiff’s argument fails for two reasons: (1) Air Force

procedure provides plaintiff with the ability to challenge her suspension; and (2) plaintiff’s

requested relief – that she not be discharged – is factually and legally distinct from her right to a

hearing regarding her suspension.

First, in contrast to plaintiff’s argument, Air Force procedures provide an ample

opportunity for plaintiff to challenge her suspension. Because that suspension was reduced to

writing (Compl. App. F), it constituted a military record. See 10 U.S.C. § 1552(g) (“In this

section, the term ‘military record’ means a document or other record that pertains to . . . an

individual member or former member of the armed forces . . .”). As a military record, plaintiff’s

suspension was subject to challenge through application to the Air Force Board for Correction of

Military Records (the “AFBCMR”). 

The AFBCMR is comprised of Air Force civilians, see 32 C.F.R. § 865.1, and it

considers applications to correct any Air Force record when necessary to correct an error or

injustice. See 10 U.S.C. § 1552(a)(1); 32 C.F.R. § 865.0. When appropriate to correct an error

or injustice, the AFBCMR directs correction of military records or recommends such correction. 

32 C.F.R. § 865.2; AFI 36-2603, § 2.1. The Air Force has also issued a pamphlet which

provides guidance on applying to the AFBCMR. See AFP 36-2607 (available at www.epublishing.af.mil/pubfiles/ af/36/afpam36-2607/afpam36-2607.pdf). In light of the opportunity

to apply to the AFBCMR to correct an error or injustice, plaintiff has had the ability from

November 2004 until present to contest her suspension through application to the AFBCMR. 

Plaintiff did not apply to the AFBCMR to challenge her suspension. Thus, plaintiff has no cause

of action against the Air Force for her failure to apply to the AFBCMR for correction of her

suspension.

Second, plaintiff cannot leverage an alleged violation of a right to a hearing with respect

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 18

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

to her suspension into relief regarding the ultimate discharge decision. Notably, plaintiff has not

been denied a hearing regarding her discharge from the Air Force because plaintiff has not been

discharged yet. The cases cited by plaintiff similarly do not support plaintiff’s position. For

instance, Barry v. Barchi, which plaintiff describes as “instructive” is hardly so. 443 U.S. 55

(1979). While the Court declared that the lack of a post-deprivation hearing for a 15-day

suspension from horse-racing was unconstitutional, the Court was not considering a discharge

from horse-racing altogether. Id. at 59. Similarly, in United States v. Two Hundred & Ninety

Five Ivory Carvings, the Ninth Circuit held that, after a delayed hearing, seized property had to

be returned – what was taken had to be returned. 689 F.2d 850, 858 (9th Cir. 1982). Notably,

the Ninth Circuit explained that such a result did not preclude over action by the government:

To require the government to return property it has seized and held in violation of

a property owner’s right to a reasonably prompt post-seizure hearing does not

deprive the government of any other sanctions, criminal or civil, that may be

available for protecting society’s interests and does not unnecessarily infringe on

society’s competing interest in the administration of criminal justice.

Id. Similarly here, even if plaintiff did not have a hearing regarding her suspension, that would

not enable plaintiff to bar the Air Force from determining whether she should be discharged. 

d. All of plaintiff’s due process claims fail because plaintiff has not been

deprived of a life, liberty, or property interest.

Plaintiff’s due process claims fail at the most basic level because Plaintiff has not been

deprived of a life, liberty or property interest. As a fundamental principle, a violation of the Due

Process Clause occurs only when a person has been deprived of life, liberty or property without

due process of law. U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or

property, without due process of law.”). Yet, plaintiff has not identified any life, liberty, or

property interest that is implicated as a result of being suspended from the Air Force Reserves,

and thus her complaint should be dismissed. 

Plaintiff does not have protected property interest in her employment in the Air Force

Reserve. To have a protected property interest under the Due Process Clause, a person must

have more than a unilateral expectation of it, he must instead have a legitimate claim of

entitlement to it. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (“To have

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 19

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

property interest in a benefit, a person clearly must have more than an abstract need or desire for

it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate

claim of entitlement to it.”). Plaintiff serves at the pleasure of the President and may be released

by the President. See 10 U.S.C. § 12203(c) (“Appointments of Reserves in commissioned

grades are for an indefinite term and are held during the pleasure of the President.”); 10 U.S.C.

§ 12681 (“Subject to other provisions of this title, reserve commissioned officers may be

discharged at the pleasure of the President.”). Because her employment in the Reserves is

always contingent on the pleasure of the President, plaintiff has no legitimate claim of

entitlement to it and thus no property interest in uninterrupted service in the Reserves. See Sims

v. Fox, 505 F.2d 857, 862 (5th Cir. 1974) (holding that an Air Force Reserve Officer has no

property interest in continued military employment); Alberico v. United States, 783 F.2d 1024,

1027 (Fed. Cir. 1986) (holding that “Reserve officers . . . have no reasonable expectations of

continued employment and thus no property interests protected by the due process clause”); see

also Doe v. Garrett, 903 F.2d 1455, 1462 (11th Cir. 1990) (“It is well established that a military

officer’s expectation of continued military employment does not rise to the level of a property

interest unless it is rooted in some statute, regulations, or contract.”); Kinney v. United States, 51

Fed. Cl. 126, 130 (Fed. Cl. 2001) (holding that an active duty officer had no property interest his

military status). 

Nor has plaintiff been deprived of a liberty interest. The liberty interest protected by the

Due Process Clause in the employment context centers around concern for a person’s reputation

and good name. See Jones v. Dep’t of Navy, 978 F.2d 1223, 1226 (Fed. Cir. 1992). But, here,

plaintiff’s reputation and good name have not been affected by any more than what plaintiff

herself admits publicly – that she has engaged in consensual homosexual conduct. See Witt Aff.

¶ 12. Finally, to the extent that plaintiff complains regarding the effect of her discharge board

hearing on her reputation, her claim is premature; that hearing has not yet taken place. 

In short, the Due Process Clause, in either substantive or procedural manifestations, 

provides no basis for relief here.

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 20

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

4. Plaintiff does not state a claim for an equal protection violation.

To the extent that her complaint’s mention of “equal protection” in ¶ 32 amounts to an

allegation that § 654 and AFI 36-3209 violate her equal protection rights, that count must be also

dismissed for failure to state a claim upon which relief can be granted. 

Rational basis review is the appropriate standard for reviewing plaintiff’s equal

protection challenge. Section 654 and AFI 36-3209 contain classifications regarding

homosexual conduct of members of the military; they are not classifications based on

homosexual orientation. 10 U.S.C. § 654(b); AFI 36-3209, § 2.30.1. Persons who engage in

homosexual conduct do not constitute a suspect or a quasi-suspect class. See See Holmes, 124

F.3d at 1132; Philips, 106 F.3d at 1425; High Tech Gays v. Def. Indus. Sec. Clearance Office,

895 F.2d 563, 571 (9th Cir. 1990). Consequently, plaintiff’s equal protection claim is reviewed

under rational basis review.

As explained above, § 654 and AFI 36-3209 serve legitimate governmental interests and

are rational means of realizing those interests. Consequently, it should come as no surprise that

the courts of appeals have unanimously determined that § 654 satisfies rational basis review

under the Equal Protection Clause. See Able, 155 F.3d at 636 (“We conclude that under rational

basis review § 654 does not violate the Equal Protection Clause of the Constitution.”); Philips,

106 F.3d at 1429 (“[B]ound by our precedent that the relationship between the Navy’s mission

and its policy on homosexual acts is not so attenuated as to render the distinction arbitrary and

irrational, we hold that [§ 654] does not violate Philips’s right to equal protection.”); Richenberg,

97 F.3d at 262 (“Given these rational concerns, Congress and the President may rationally

exclude those with a propensity or intent to engage in homosexual acts.”); Thomasson, 80 F.3d

at 931 (“In sum, we conclude that the Act represents a legitimate legislative match of ends and

means that withstands appellant's equal protection challenge.”). 

In sum, under rational basis review and the persuasive force of precedent, plaintiff has no

viable equal protection claim.

5. Plaintiff does not state a claim under the First Amendment.

Plaintiff’s complaint also claims that “any discharge of Major Witt pursuant to 10 U.S.C.

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 21

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

§ 654 and AFI No. 36-3209 would violate the free speech clause of the First Amendment.” 

(Compl. at ¶ 33.) That allegation is insufficient to state a claim for relief.

First, plaintiff’s challenge is factually premature. Plaintiff’s own allegation expressly

premises her First Amendment challenge on her discharge from the Air Force. (Id.) Yet, as

plaintiff herself admits, she not yet been discharged. (Compl. at ¶ 31 (“As of the date of the

filing of this complaint, the date of Major Witt’s administrative discharge hearing has not been

set.”).) Thus, as of now, plaintiff’s complaint does not identify a valid claim for relief – even if

plaintiff were to have redress under the DADT statute for a First Amendment violation. 

Second, § 654 has been repeatedly upheld against First Amendment challenges. See

Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1430. As these holdings make clear, the DADT

policy does not run afoul of the First Amendment. Consequently, plaintiff has not stated a claim

for relief under the First Amendment.

B. Plaintiff does not satisfy the requirements for a preliminary injunction.

1. Standards for preliminary injunction.

A preliminary injunction is an “extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997). The Ninth Circuit has cautioned that granting a

preliminary injunction involves “the exercise of a very far reaching power never to be indulged

except in a case clearly warranting it.” Dymo Indus., Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143

(9th Cir. 1964). 

To obtain this preliminary injunctive relief, a party “ must fulfill one of two standards,

described in this circuit as ‘traditional’ and ‘alternative.’” Cassim v. Bowen, 824 F.2d 791, 795

(9th Cir. 1987) (quoting Am. Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir. 1983)). 

Under the traditional standard, a court may issue such relief if it finds that “(1) the moving party

will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on

the merits; (3) the balance of potential harm favors the moving party; and (4) the public interest

favors granting relief.” Burlington N. R.R. Co. v. Dep’t of Revenue, 934 F.2d 1064, 1074 n.6

(9th Cir. 1991) (quoting Cassim, 824 F.2d at 795)). Under the alternative standard, the moving

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 22

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

party may meet its burden by demonstrating either “(1) a combination of probable success and

the possibility of irreparable injury or (2) that serious questions are raised and the balance of

hardships tips sharply in its favor.” Id. (quoting Cassim, 824 F.2d at 795).

 Despite the “either/or” phrasing of the standard for a preliminary injunction, “cases have

made it clear . . . that there are not really two entirely separate tests, but that they are merely

extremes of a single continuum.” Benda v. Grand Lodge of Int’l. Ass’n of Machinists &

Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978). In other words, [t]hese two formulations

represent two points on a sliding scale in which the required degree of irreparable harm increases

as the probability of success decreases. Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762

F.2d 1374, 1376 (9th Cir. 1985); see also Rodeo Collection, Ltd. v. West Seventh, 812 F.2d

1215, 1217 (9th Cir. 1987). It must be shown as an “irreducible minimum” that there is at least a

fair chance of success on the merits. Stanley v. Univ. of S. California, 13 F.3d 1313, 1319 (9th

Cir. 1994) (quoting Martin v Int’l Olympic Comm., 740 F.2d 670, 674-75 (9th Cir. 1984)). 

Additionally, “[u]nder any formulation of the test, plaintiff must demonstrate that there exists a

significant threat of irreparable injury.” Oakland Tribune, 762 F.2d at 1376; City of Tenakee

Springs v. Block, 778 F.2d 1402, 1407 (9th Cir. 1985). 

Furthermore, courts must be particularly cautious in disrupting the status quo where

injunctive relief would interfere in administrative procedure. See Heckler v. Lopez, 463 U.S.

1328,1333 (1983) (stating general principle that a district court's injunctive power should not be

a basis for “propel[ling] the court into the domain which Congress has set aside exclusively for

the administrative agency” (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947))).

Finally, the standard for preliminary injunctive relief is heightened in the instance of a

challenge to a government personnel decision. As the Supreme Court explained in Sampson v.

Murray, which involved a government employee who sought a temporary injunction restraining

the termination of her employment:

Assuming for the purpose of discussion that respondent has made a satisfactory

showing of loss of income and had supported the claim that her reputation would

be damaged as a result of the challenged agency action, we think the showing

falls far short of the type of irreparable injury which is a necessary predicate to

the issuance of a temporary injunction in this type of case.

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 23

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

415 U.S. 61, 91-92 (1974) (emphasis added). This heightened standard is particularly

appropriate in cases challenging military personnel decisions. See Guerra v. Scruggs, 942 F.2d

270, 274 (4th Cir. 1991) (“We believe that Sampson’s higher requirement of irreparable injury

should be applied in the military context given the federal courts’ traditional reluctance to

interfere with military matters.”).

2. Plaintiff does not have a likelihood of success on the merits.

Plaintiff’s request for a preliminary injunction should be denied because plaintiff cannot

sustain a likelihood of success on the merits. As demonstrated above, this action should be

dismissed because plaintiff does not have actionable constitutional claims against the DADT

policy. Moreover, for plaintiff to prevail, it would require the Court to make a significant

deviation from existing precedent; such a rarity cannot constitute a substantial likelihood of

success on the merits. 

3. Plaintiff will not be irreparably injured.

Nor has plaintiff demonstrated an irreparable injury. She has not yet been discharged,

and she could have challenged her suspension by applying to the AFBCMR. Plaintiff’s alleged

injury is economic in nature as a result of not being permitted to participate in Reserve

employment – which does not merit preliminary injunctive relief. See Guerra, 942 F.2d at 274

(determining that for a service member who admittedly used cocaine, the fact that he was

“forced to seek civilian employment with a military record which carries a stigma with it” did

not constitute irreparable harm sufficient to sustain a preliminary injunction.); see also Adams v.

Vance, 570 F.2d 950, 957 (D.C. Cir. 1978) (no irreparable injury when Eskimos were denied

whaling for one year). Moreover, during the course of her suspension, plaintiff has had the

opportunity to mitigate the effect of this economic loss; she could have pursued other part-time

employment, thus negating any irreparable aspect of her loss of pay. See Lanvin, Inc., v.

Colonia, Inc., 739 F. Supp. 182, 192-93 (S.D.N.Y. 1990) (“Any party claiming an injury is under

a duty to mitigate its damages. A movant for extraordinary relief cannot mask an ongoing failure

on its part to mitigate its damages as an ongoing instance of irreparable harm.”). 

Plaintiff can also seek redress of her alleged injuries through the Air Force. As

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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 24

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

mentioned above, she can appeal to the AFBCMR to alter her military records regarding pay and

points. And, even taking plaintiff’s presumptive fears regarding her potential discharge under

general conditions at their worst, (Witt Aff. ¶ 26), plaintiff would still have the ability to appeal

those with an Air Force Discharge Board, and the stigma associated with a General Discharge is

not considered irreparable. See Chilcott v. Orr, 747 F.2d 29, 34 (1st Cir. 1984) (“[T]he prospect

of a general discharge under honorable conditions is not an injury of sufficient magnitude to

warrant an injunction.”). For these reasons, any alleged injury to plaintiff will not be irreparable.

4. The public interest disfavors a preliminary injunction here.

Granting a preliminary injunction here would also contravene the public interest. Doing

so would harm Congress’s interest in regulating the military by permitting judicial secondguessing in an area of extreme deference to the executive and legislative branches. See Rostker,

453 U.S. at 70; Thomasson, 80 F.3d at 924; see also Adams, 570 F.2d at 954 (vacating district

court’s grant of immediate injunctive relief where so doing would “deeply intrude into the core

concerns of the executive branch”). In that same vein, granting a preliminary injunction would

impede with the military’s ability to make personnel decisions with minimal judicial

interference. See Chilcott, 747 F.2d at 32 (“Interference by the judiciary with the administration

of the military would undermine this nation’s ability to maintain a disciplined and ready fighting

force.”); Parrish v. Brownlee, 335 F. Supp. 2d 671, 675 (E.D.N.C. 2004). 

IV. CONCLUSION

For the foregoing reasons, plaintiff’s action should be dismissed for failure to state a

claim upon which relief may be granted. Moreover, plaintiff’s motion for preliminary injunction

should be denied because plaintiff cannot demonstrate a likelihood of success on the merits, an

irreparable injury, or a benefit to the public interest.

Case 3:06-cv-05195-RBL Document 24 Filed 05/08/06 Page 24 of 26
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(C06-5195-RBL) DEFENDANTS’ MOTION TO DISMISS

AND DEFENDANTS’ OPPOSITION TO PLAINTIFF’S

MOTION FOR PRELIMINARY INJUNCTION - 25

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

Dated: May 8, 2006 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

JOHN MCKAY

United States Attorney

VINCENT M. GARVEY

Deputy Branch Director

MARION J. MITTET

Assistant United States Attorney

Of Counsel: /s/ 

MAJOR TRACEY ROCKENBACH PETER J. PHIPPS

AFLSA/JACL Military Personnel Litigation United States Department of Justice

1501 Wilson Blvd, 7th Floor Civil Division, Federal Programs Branch

Rosslyn, VA 22209-2403 Tel: (202) 616-8482

Fax: (202) 616-8470

E-mail: peter.phipps@usdoj.gov

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

 

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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

(202) 616-8482

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CERTIFICATE OF SERVICE

I hereby certify that on May 8, 2006, I electronically filed the foregoing Defendants’

Motion to Dismiss and Defendants’ Opposition to Plaintiff’s Motion for Preliminary Injunction

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the following person:

James E. Lobsenz Aaron H. Caplan

Carney Badley Spellman, P.S. American Civil Liberties Union of Washington

701 Fifth Avenue, Suite 3600 705 Second Avenue

Seattle, WA 98104 Seattle, WA 98104

Tel: (206) 622-8020 Tel: (206) 624-2184

Fax: (206) 622-8983 E-mail: caplan@aclu-wa.org

E-mail: lobsenz@carneylaw.com

Nicki McCraw

Carney Badley Spellman, P.S.

701 Fifth Avenue, Suite 3600

Seattle, WA 98104

Tel: (206) 622-8020

Fax: (206) 622-8983

E-mail: mccraw@carneylaw.com

 /s/ 

PETER J. PHIPPS

United States Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883, Ben Franklin Station

Washington, DC 20044

Tel: (202) 616-8482

Fax: (202) 616-8470

E-mail: peter.phipps@usdoj.gov

Attorney for Defendants 

Case 3:06-cv-05195-RBL Document 24 Filed 05/08/06 Page 26 of 26