1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 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.

 

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

No. C06-5195 RBL

OPPOSITION TO PLAINTIFF’S

MOTION IN LIMINE TO EXCLUDE

EVIDENCE

ORAL ARGUMENT REQUESTED

The Court should deny plaintiff’s motion in limine to exclude evidence and testimony

regarding her admitted (see Pl.’s Mot. in Limine to Exclude Evidence at 1) commission of

adulterous acts in 2003. Having insisted at every turn that she is entitled to an as-applied

analysis of the application of 10 U.S.C. § 654 to her specific circumstances, plaintiff cannot now

plausibly argue that the Court should ignore evidence of the very conduct that triggered her

discharge. Evidence of plaintiff’s conduct is directly relevant to what the Court of Appeals

identified as the material questions at issue in this matter: “whether the application of [10 U.S.C.

§ 654] specifically to Major Witt significantly furthers the government’s interest and whether

less intrusive means would achieve substantially the government’ s interest.” Witt v. Dep’t of the

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

(C06-5195) OPP’N TO PL.’S MOT. IN LIMINE

TO EXCLUDE EVIDENCE - 1

Case 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Air Force, 527 F.3d 806, 821 (9th Cir. 2008).

BACKGROUND

According to plaintiff, she was separated from the Air Force Reserve because the Air

Force learned of allegations that plaintiff had “engaged in homosexual acts with a civilian

woman” and that this “civilian woman stated that she was a lesbian” with whom plaintiff “had

engaged in a committed and loving relationship from July 1997 through October 2003.” Compl.

¶ 27. This portrayal of the events leading to plaintiff’s discharge, which was repeated

substantially to the Ninth Circuit in 2007, see Br. of Appellant, Witt v. Dep’t of the Air Force,

No. 06-35644 at 6-8 (9th Cir. Oct. 12, 2006), is incomplete at best.

Plaintiff’s conduct in violation of 10 U.S.C. § 654 first rose to the attention of the Air

Force on June 14, 2004. The conduct that drew attention was not, in fact, plaintiff’s “committed

and loving relationship [with a civilian woman] from July 1997 through October 2003.” Instead,

it was plaintiff’s relationship, beginning in November 2003, with a different civilian woman. 

This particular civilian woman was married at the time plaintiff began a relationship with her. 

The woman’s husband brought the relationship to the Air Force’s attention. See E-Mail from

Patrick McChesney to Gen. John Jumper, AF000122-23 (Ex. A).

After receiving the husband’s complaint, the Air Force appointed an investigator who

concluded that it was “more likely than not that” plaintiff had engaged in a romantic relationship

with this married woman. See Report of Commander Directed Investigation, Oct. 20, 2004,

AF000113-119 at AF000117-18 (Ex. B). Following this investigation, plaintiff’s unit

commander recommended that she be separated from service. Among the reasons for this

recommendation: plaintiff “engaged in homosexual acts with . . . a married woman, on divers

occasions from on or about November 2003 to on or about January 2004 . . . .” Mem. from Mary

Walker, Nov. 6, 2004 (Ex. C). At plaintiff’s discharge board hearing, the Air Force presented

evidence about this relationship. See, e.g., Administrative R. at AF000528 [Docket # 119].

Nevertheless, plaintiff has attempted to avoid making the conduct that triggered her

discharge part of the record at any level, trial or appellate, in this proceeding. Indeed, the Ninth

Circuit, accepting as true plaintiff’s complaint allegations, assumed the following facts about this

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

(C06-5195) OPP’N TO PL.’S MOT. IN LIMINE

TO EXCLUDE EVIDENCE - 2

Case 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

case:

Major Witt was in a committed and long-term relationship with another woman

from July 1997 through August 2003. Major Witt’s partner was never a member

nor a civilian employee of any branch of the armed forces, and Major Witt states

that she never had sexual relations while on duty or while on the grounds of any

Air Force base. During their relationship, Major Witt and her partner shared a

home in Spokane, Washington, about 250 miles away from McChord Air Force

Base.

Witt, 527 F.3d at 809-10. In returning Witt’s substantive due process claim to the District Court,

the Ninth Circuit instructed that “[r]emand . . . is required to develop the record on Major Witt’s

substantive due process claim.” Id. at 821. The record has been developed and it shows that the

facts are substantially different than those assumed by the Ninth Circuit in ways that are relevant

to the proper disposition of plaintiff’s claim.

ARGUMENT

These additional facts—which include the fact that the conduct initially giving rise to the

investigation into plaintiff’s behavior included adultery and that the investigation was initiated in

response to a husband’s complaint about that adultery—should be admitted into evidence. Not

only are they relevant to the inquiry required by the Ninth Circuit on remand, but they are so

intertwined with the documentary record of plaintiff’s discharge that their exclusion would be

impractical.

1. Evidence of Plaintiff’s Adulterous Conduct is Directly Relevant to the Inquiry 

Required by the Ninth Circuit.

Relevant evidence is “that which tends to make the existence of a fact of consequence

more or less probable than it would be without the evidence.” Campbell v. Wood, 18 F.3d 662,

685 (9th Cir. 1994). The facts of consequence in this action, according to the Ninth Circuit’s

test, are whether (a) whether the application of [10 U.S.C. § 654] specifically to Major Witt

significantly furthers the government’s interest,” and (b) “whether less intrusive means would

achieve substantially the government’ s interest.” Witt, 527 F.3d at 821. Thus, any evidence

showing that the application of 10 U.S.C. § 654 to plaintiff significantly furthers the

government’s interest in morale, cohesion, good order and discipline is, by definition, relevant. 

See Fed. R. Evid. 402. That at least part of the conduct for which plaintiff was discharged

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

(C06-5195) OPP’N TO PL.’S MOT. IN LIMINE

TO EXCLUDE EVIDENCE - 3

Case 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

includes an adulterous affair is a fact that makes it more likely that her specific discharge

significantly furthered government interests.

“Adultery is clearly unacceptable conduct” in the military, Manual for Courts-Martial,

United States (2008 ed.), Part IV, ¶ 62c(1). It “reflects adversely on the service record of the

service member,” id., and “[d]isciplinary action and courts-martial for criminal adultery are not

infrequent,” United States v. Green, 39 M.J. 606, 609 (A. Ct. Crim. App. 1994). Plaintiff’s

relationship with a married woman is thus relevant here for two reasons. First, her willingness to

engage in conduct that she acknowledged to be inconsistent with the standards of conduct

required of Air Force officers, see Margaret Witt Dep. at 46:8-13 (Ex. D), and that frequently

leads to disciplinary action and courts-martial, Green, 39 M.J. at 609, further evidences a

willingness to engage in the type of conduct that Congress could have rationally concluded could

give rise to distractions within her unit. Second, regardless of the sexual orientation of those

involved, adulterous behavior, especially by an officer, is likely to be prejudicial to good order

and discipline. As the military court in Green explained, the risk that other service members will

find out about an officer’s adultery can harm good order and discipline in two ways:

First, [such] conduct would tend to reduce the other soldiers’ confidence in his

integrity, leadership, and respect for law and authority. Second, the example he

provided would tend to cause the other soldiers to be less likely to conform their

conduct to the rigors of military discipline.

39 M.J. at 610. Further, an officer who engages in adultery risks compromising her stature as an

officer. See Dennis Laich Dep. at 62:19-63:9 (Ex. E) (explaining that an extramarital affair

“compromises integrity”). The risks of such behavior were enunciated long ago by Congress in

Articles 133 and 134 of the Uniform Code of Military Justice, which subjects officers regardless

of sexual orientation to punishment for adultery in certain circumstances. By reducing those

risks, plaintiff’s discharge furthers unit cohesion, morale, and good order and discipline.

Plaintiff’s attempt to blunt this argument fails. Plaintiff claims that she was discharged

for homosexual conduct and homosexual conduct alone and that the fact that she could

hypothetically also have been discharged for adultery is beside the point. See Pl.’s Mot. in

Limine to Exclude Evidence at 2-3. But that is both untrue and not the question the Ninth

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

(C06-5195) OPP’N TO PL.’S MOT. IN LIMINE

TO EXCLUDE EVIDENCE - 4

Case 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Circuit asked the parties to answer. The conduct for which the plaintiff was discharged included

her adulterous affair; indeed, it was this conduct that triggered the Air Force’s inquiry into

plaintiff’s activities. The Ninth Circuit, in asking for an as-applied analysis of the situation,

indicated that the nature of plaintiff’s conduct was relevant to the disposition of the matter. The

Ninth Circuit thus adopted a rule of specific application, requiring review of the specific

circumstances of the intimate relationship being regulated. See Witt, 527 F.3d at 814. Under this

test, the Ninth Circuit certainly could conclude ultimately that a homosexual relationship of a

certain nature could be legitimately regulated for military reasons. See id.

2. Exclusion of Evidence Regarding Plaintiff’s Adulterous Conduct is Impractical.

Indeed, plaintiff’s suggestion that the Court simply exclude all documents and testimony

regarding her adulterous conduct blinks at reality. Plaintiff’s counsel claims that “the only time

adultery was ever mentioned was when the appointed investigator confirmed that no one was

interested in taking any disciplinary action on these grounds.” See Pl.’s Mot. in Limine to

Exclude Evidence at 3. This statement is inaccurate. For instance, the email that prompted the

investigation into plaintiff’s conduct was a husband’s complaint of adultery by an Air Force

officer. See Ex. A. In addition, plaintiff’s squadron commander recommended plaintiff’s

separation in part “because” plaintiff engaged in homosexual acts with “a married woman.” See

Admin. R. at AF000678 [Docket # 119].1

 Furthermore, before the Air Force discharge board

recommended plaintiff’s discharge, it was presented with evidence about plaintiff’s relationship

with a married woman. See, e.g., id. at AF001289-90; id. at AF001291-93. 

To exclude such documents from evidence would distort the record of what actually

happened with respect to plaintiff’s discharge, which is part and parcel of the inquiry required on

remand by the Ninth Circuit. The purpose of this remand is to develop the complete record of

plaintiff’s substantive due process claim. The Court should permit the parties to accomplish that

purpose.

 1 That same memorandum explains why plaintiff was not court-martialed or otherwise disciplined

for her adulterous conduct, by stating “I have taken no disciplinary action because this case is

proceeding directly to discharge.” Id. 

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

(C06-5195) OPP’N TO PL.’S MOT. IN LIMINE

TO EXCLUDE EVIDENCE - 5

Case 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CONCLUSION

For the foregoing reasons the Court should deny plaintiff’s motion in limine.

Dated: August 23, 2010 Respectfully submitted,

TONY WEST

Assistant Attorney General

VINCENT M. GARVEY

Deputy Branch Director

/s/ Bryan R. Diederich

PETER J. PHIPPS

BRYAN R. DIEDERICH

Of Counsel: STEPHEN J. BUCKINGHAM

LT. COL. TODI CARNES United States Department of Justice

1777 N. Kent Street, Suite 11400 Civil Division, Federal Programs Branch

Rosslyn, VA 22209-2133 Tel: (202) 305-0198

(703) 588-8428 Fax: (202) 616-8470

E-mail: bryan.diederich@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

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. BOX 883, BEN FRANKLIN STATION 

WASHINGTON, D.C. 20044

(202) 616-8482

(C06-5195) OPP’N TO PL.’S MOT. IN LIMINE

TO EXCLUDE EVIDENCE - 6

Case 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CERTIFICATE OF SERVICE

I hereby certify that on August 23, 2010, I electronically filed the foregoing Defendants’

Reply Memorandum in Support of Summary Judgment, with the Clerk of the Court using the

CM/ECF system which will send notification of such filing to the following persons:

James E. Lobsenz, Esq. Sarah A. Dunne, Esq.

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

701 Fifth Avenue, Suite 3600 901 Fifth Avenue, Suite 630

Seattle, WA 98104 Seattle, WA 98164

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

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

E-mail: lobsenz@carneylaw.com

Sher S. Kung, Esq.

American Civil Liberties Union of Washington

901 Fifth Avenue, Suite 630

Seattle, WA 98164

Tel: (206) 624-2184

E-mail: skung@aclu-wa.org 

 /s/ Bryan R. Diederich BRYAN R. DIEDERICH

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 

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 3:06-cv-05195-RBL Document 136 Filed 08/23/10 Page 7 of 7