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 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’ ANSWER TO

PLAINTIFF’S COMPLAINT

Defendants the Department of the Air Force (the “Air Force”), Robert M. Gates, the

Secretary of Defense, Michael B. Donley the Secretary of the Air Force, and Colonel Janette

Moore-Harbert, the commander of the 446th Aeromedical Evacuation Squadron, McChord Air

Force Base, hereby answer plaintiff’s Complaint (Docket #1) in the following numbered

paragraphs, which correspond to the Complaint’s numbered paragraphs.1

1. This paragraph contains plaintiff’s characterization of this action, not factual

allegations requiring a response.

2. This paragraph contains a legal conclusion, the basis for the Court’s subject

 In this official-capacity action, the present office holders have been automatically substituted for 1

their predecessors as defendants. See Fed. R. Civ. P. 25(d).

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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 1

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 1 of 8
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matter jurisdiction, to which no factual response is required. 

3. This paragraph contains a legal conclusion, the basis for the Court’s subject

matter jurisdiction, to which no factual response is required. To the extent that a factual response

is required, defendants deny that 28 U.S.C. § 1346 provides a basis for the Court’s subject matter

jurisdiction. 

4. Defendants deny the allegations in the first sentence of this paragraph. The

second sentence of this paragraph contains plaintiff’s characterization of this action, not factual

allegations requiring a response.

5. Defendants deny the allegations in this paragraph, except to admit that the United

States Department of the Air Force is a military department of the United States of America. 

6. Defendants deny the allegations in this paragraph. 

7. Defendants deny the allegations in this paragraph. In this official-capacity action,

Robert M. Gates has been automatically substituted for Donald H. Rumsfeld in the office of

Secretary of Defense. 

8. Defendants deny the allegations in this paragraph. In this official-capacity action,

Michael B. Donley has been automatically substituted for Michael W. Wynne in the office of

Secretary of the Air Force. 

9. Defendants deny that Colonel Mary L. Walker is a defendant in this officialcapacity action; rather Colonel Janette Moore-Harbert has been automatically substituted for

Colonel Walker in the office of Commander, 446th Aeromedical Evacuation Squadron,

McChord, Air Force Base. Defendants deny the remaining allegations in this paragraph except to

admit that Colonel Walker was the Commander, 446th Aeromedical Evacuation Squadron,

McChord, Air Force Base, in November 2004, when administrative discharge proceedings

against plaintiff were initiated. 

10. This paragraph contains a legal conclusion to which no factual response is

required.

11. This paragraph contains a legal conclusion to which no factual response is

required.

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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 2

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 2 of 8
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12. This paragraph contains a legal conclusion to which no factual response is

required. To the extent that a factual response is required, defendants deny that the selection

cited constitutes the only pertinent part of 10 U.S.C. § 654.

13. The first sentence of this paragraph contains a legal conclusion to which no

factual response is required. To the extent that a factual response is required, defendants deny

that the selection cited constitutes the complete text of Air Force Instruction (“AFI”) 36-3209 and

that the quoted text fully and accurately reflects the contents of AFI 36-3209 §§ 2.30-33. 

Defendants deny the allegations contained in the second sentence of this paragraph.

14. This paragraph contains a legal conclusion to which no factual response is

required. To the extent that a factual response is required, defendants deny that the quoted text

fully and accurately reflects the contents of AFI 36-3209 § 4.17.5.

15. Defendants are without knowledge or information sufficient to form a belief as to

the allegations in this paragraph.

16. As to the allegations in the first sentence of this paragraph, defendants deny that

plaintiff entered the Air Force on March 27, 1987, but defendants admit that plaintiff attended

Military Indoctrination Medical Service Officers and that plaintiff was commissioned a Second

Lieutenant on April 11, 1989. Defendants admit the allegations in the second sentence of this

paragraph. Defendants deny the allegations in the third sentence of this paragraph.

17. Defendants admit that plaintiff’s initial duty assignment included the

responsibilities identified in this paragraph, but defendants deny that plaintiff held each of those

responsibilities simultaneously and for the entire duration of her first assignment.

18. Defendants admit the allegations in the first sentence of this paragraph. 

Defendants deny the allegations in the second sentence of this paragraph except that defendants

(i) admit that plaintiff was transferred to Scott Air Force Base and that plaintiff served, at various

times and not necessarily simultaneously, as a flight nurse, nurse scheduler, flight nurse examiner

in either the 57th Aeromedical Evacuation Squadron or the 375th Aeromedical Evacuation

Squadron, and (ii) are without knowledge or information sufficient to form a belief as to whether

plaintiff actually served as a medical aircrew training officer. As to the allegations in the third

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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 3

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 3 of 8
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sentence of this paragraph, defendants admit that some Aeromedical Evacuation Squadron

personnel are responsible for in-flight management and care of ill and injured patients

transported by military aircraft, but deny that all Aeromedical Evacuation Squadron personnel

have those responsibilities.

19. Defendants deny the allegations in the first sentence of this paragraph except to

admit that plaintiff was discharged from active duty on December 15, 1995; that plaintiff

transferred into ready reserve status on December 16, 1995; and that plaintiff was reassigned to

the 446th Aeromedical Evacuation Squadron on March 18, 1996. Defendants deny the

allegations in the second sentence of this paragraph except that defendants admit that plaintiff

served, at various times and not necessarily simultaneously, as a flight nurse, flight nurse

examiner, officer in charge of weight management and physical fitness, officer in charge of

ground training, and the standards and evaluation flight commander. Defendants deny the

allegations in the third sentence of this paragraph.

20. Defendants deny the allegations in this paragraph except to admit that plaintiff

received the awards indicated (with the exception of the Air Force Training Medal). 

21. Defendants admit the allegations in this paragraph except to deny the implication

that President George W. Bush personally presented an Air Medal to plaintiff.

22. Defendants admit that plaintiff received the award referenced in the first sentence

of this paragraph, but they deny that plaintiff fully and accurately characterized the basis for the

award, and instead defendants refer to the copy of the award for its full and accurate contents. 

Defendants are without knowledge or information sufficient to form a belief as to the allegations

in the second sentence of this paragraph. 

23. Defendants deny the allegations contained in the first sentence of this paragraph. 

As to the allegations in the remainder of the paragraph, defendants admit that plaintiff’s annual

review contained that identified language (except for the word “crated” in line 9).

24. Defendants are without knowledge or information sufficient to form a belief as to

the allegations in this paragraph except that defendants deny that Colonel Mary Walker remains a

defendant in this action.

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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 4

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 4 of 8
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25. Defendants are without knowledge or information sufficient to form a belief as to

the allegations in this paragraph.

26. Defendants are without knowledge or information sufficient to form a belief as to

the allegations in this paragraph.

27. Defendants admit the allegations contained in the first sentence of this paragraph. 

Defendants deny the allegations in the second sentence of this paragraph to the extent that the

sentence suggests or implies that the civilian woman referenced in this second sentence is the

same civilian woman who is referenced in the first sentence of this paragraph; to the extent that

the civilian woman referenced in the second sentence of this paragraph is separate and distinct

from the civilian woman referenced in the first sentence of this paragraph, defendants admit the

allegations in the second sentence of this paragraph.

28. Defendants deny the allegations contained in the first three sentences of this

paragraph except to admit that plaintiff was informed that an administrative separation action

was being initiated against plaintiff for homosexual conduct under the provisions of AFI 36-

3209. Defendants admit the allegations contained in the fourth sentence of this paragraph.

29. As to the allegations in the first sentence of this paragraph, defendants deny that

plaintiff received the referenced certified mail on November 9, 2004, and defendants deny that

plaintiff’s characterization of the memorandum fully and accurately reflects its contents and

instead refer to the copy of the letter for its full and accurate contents. Defendants admit the

allegations contained in the second sentence of this paragraph. Defendants deny the allegations

in the third sentence of this paragraph except to admit that plaintiff has not participated in any

pay or points activity for the Air Force Reserves after November 5, 2004.

30. Defendants deny that this paragraph fully and accurately reflects the contents of

the letter and instead refer to the copy of the letter for its full and accurate contents. 

31. Defendants deny that the first sentence of this paragraph fully and accurately

reflects the contents of the document and instead refer to the copy of the document for its full and

accurate contents. Defendants admit the allegations in the second sentence of this paragraph. 

Defendants deny the allegations in the third sentence of this paragraph and instead admit that

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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 5

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 5 of 8
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plaintiff’s discharge hearing has been held at Robins Air Force Base in Georgia.

32. Defendants deny the allegations in this paragraph.

33. Defendants deny the allegations in this paragraph.

Defendants further deny that plaintiff is entitled to any relief whatsoever and deny any

and all allegations not specifically responded to herein.

AFFIRMATIVE DEFENSE

1. Plaintiff has waived and/or forfeited her ability to seek reinstatement based on

10 U.S.C. § 654(b)(1).

PRAYER FOR RELIEF

WHEREFORE, defendants pray that the Court dismiss plaintiff’s suit with prejudice,

render judgment that plaintiff take nothing, assess costs against plaintiff, and award defendants

all other relief to which they are entitled.

Dated: October 23, 2009 Respectfully submitted,

TONY WEST

Assistant Attorney General

JENNY A. DURKAN

United States Attorney

VINCENT M. GARVEY

Deputy Branch Director

MARION J. MITTET

Assistant United States Attorney

Of Counsel: /s/ Peter J. Phipps 

MAJOR LINELL LETENDRE PETER J. PHIPPS

AFLOA/JACL Military Personnel Litigation Senior Counsel

1501 Wilson Blvd, 7th Floor United States Department of Justice

Rosslyn, VA 22209-2403 Civil Division, Federal Programs Branch

Tel: (202) 616-8482

Fax: (202) 616-8470

E-mail: peter.phipps@usdoj.gov

Mailing Address:

Post Office Box 883, Ben Franklin Station

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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 6

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 6 of 8
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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-RBL) DEFENDANTS’ ANSWER

TO PLAINTIFF’S COMPLAINT - 7

Case 3:06-cv-05195-RBL Document 60 Filed 10/23/2009 Page 7 of 8
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CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2009, I electronically filed the foregoing Defendants’

Answer to Plaintiff’s Complaint, with the Clerk of the Court using the CM/ECF system that I

understand will send notification of such filing to the following persons:

James E. Lobsenz Sarah A. Dunne

Carney Badley Spellman, P.S. ACLU of Washington Foundation

701 Fifth Avenue, Suite 3600 705 Second Avenue, Suite 300

Seattle, WA 98104 Seattle, WA 98104

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

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

E-mail: lobsenz@carneylaw.com

Aaron H. Caplan 

Associate Professor

Loyola Law School Los Angeles

919 Albany Street

Los Angeles, CA 90015

Tel: (213) 736-8110

E-mail: Aaron.caplan@lls.edu

 /s/ Peter J. Phipps 

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 

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 60 Filed 10/23/2009 Page 8 of 8