PLTF’S REPLY IN SUPP MTN FOR 

PRELIMINARY INJUNCTION 

NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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The Honorable Ronald B. Leighton 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

MAJOR MARGARET WITT, 

Plaintiff, 

 vs. 

UNITED STATES DEPARTMENT OF 

THE AIR FORCE; et al., 

Defendants. 

NO. C06-5195 RBL 

PLAINTIFF’S REPLY BRIEF IN 

SUPPORT OF MOTION FOR 

PRELIMINARY INJUNCTION 

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CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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 Defendants seek to discharge Major Witt from military service under a policy that 

says, in a nutshell, that gay men and lesbians may serve in the armed forces so long as they 

pretend to be either heterosexual or asexual, refrain from any sexual activity, and make no 

truthful statements about their sexual orientation. Any homosexual conduct by these service 

members is mandatory grounds for discharge with no exceptions. At the same time, 

homosexual conduct is not grounds for mandatory discharge if performed by persons with a 

predominantly heterosexual orientation. See Plaintiff’s Opening Brief at 42-44; 10 U.S.C. 

§ 654. Defendants’ opposition ignores these realities as it ignores the facts of the case. 

Major Witt is entitled to a preliminary injunction on her due process theories. (Other 

arguments related to Defendants’ motion to dismiss will be presented separately.) 

I. Plaintiff Has A Likelihood of Success On Her Substantive Due Process Claim

a. Defendants Misconstrue Lawrence. 

Defendants argue that the majority opinion in Lawrence v. Texas, 539 U.S. 558 

(2003), did not identify a right meriting heightened scrutiny. Defendants’ Brief at 10. The 

Court of Appeals for the Armed Forces disagrees. United States v. Marcum, 60 M.J. 198 

(C.A.A.F. 2004), held that service members retain the right to form intimate sexual 

relationships under Lawrence, and that any military incursion on that right must be justified 

by a strong governmental interest in military readiness, combat effectiveness, or national 

security and that the rule be “narrowly tailored to accomplish these interests.” Id. at 204-05. 

Marcum read Lawrence correctly. 

At virtually every turn, the majority opinion in Lawrence explains that the right to 

form intimate sexual relationships – even with persons of the same sex – is of the highest 

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PLTF’S REPLY IN SUPP MTN FOR 

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NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

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 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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order. The opening paragraph of the opinion explains that the intimate sexual conduct is 

premised on “an autonomy of self that includes freedom of thought, belief, [and] expression.” 

539 U.S. at 562. These freedoms are unquestionably fundamental. The terms used by the 

majority to describe the right to intimate sexual conduct are stirring: it is a “liberty” of 

“transcendent dimensions,” id., and an “integral part of human freedom,” id. at 577, affording 

“substantial protection to adult persons in deciding how to conduct their private lives in 

matters pertaining to sex,” id. at 572. Quoting Planned Parenthood v. Casey, 505 U.S. 833, 

851 (1992), Lawrence described the right as “central to the liberty protected by the [due 

process clauses],” and “at the heart of liberty.” 539 U.S. at 574. 

Throughout, Lawrence relied on reproductive freedom cases like Griswold v. 

Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); and Carey v. 

Population Services International, 431 U.S. 678 (1977), all of which recognize that the right 

to autonomy in forming intimate sexual relationships is afforded heightened scrutiny for 

purposes of substantive due process. Griswold – which Lawrence considered “the most 

pertinent beginning point” for its analysis, id. at 564 – involved a “zone of privacy created by 

several fundamental constitutional guarantees,” 381 U.S. at 485. Justice Goldberg’s 

concurrence in Griswold used the term “fundamental” over thirty times. Roe v. Wade spoke 

of “fundamental rights,” 410 U.S. at 153, 155, as did Carey, 431 U.S. at 686-88. 

To avoid this explicit language and reasoning, Defendants would rely on a word 

game: Lawrence did not use word “fundamental” in precisely the way Defendants would 

have liked, so it is irrelevant that the opinion used equally potent words like “integral”, 

“central”, “transcendent,” and “at the heart of liberty.” Even if this semantic game was the 

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PLTF’S REPLY IN SUPP MTN FOR 

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NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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right inquiry (which it is not), Defendants ignore Lawrence’s statement that the substantive 

due process right to autonomy in forming intimate sexual relationships is a “fundamental 

human right.” 539 U.S. at 565, citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 

b. Lawrence Applies to the Military 

Defendants do not contest the holding of United States v. Marcum, 60 M.J. 198 

(C.A.A.F. 2004), which called for application of Lawrence to military service members on an 

as-applied basis. In reaching this conclusion, Marcum was consistent with the line of Ninth 

Circuit cases protecting the right of gay service members not to be discharged merely because 

of their status as homosexuals. In a series of decisions nowhere discussed by Defendants, the 

Ninth Circuit has repeatedly found as-applied constitutional violations where military 

discharge rules were applied to force out gay service members based solely on their sexual 

orientation. Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991); Meinhold v. United States 

Department of Defense, 34 F.3d 1469 (9th Cir. 1994); Cammermeyer v. Perry, 97 F.3d 1235, 

1237 (9th Cir. 1996). See Plaintiff’s Brief at 37-38. This sensitivity to unconstitutional 

applications of military policy can only be stronger after Lawrence and Marcum. 

c. Major Witt’s Discharge Cannot Survive The Requisite “Searching 

Constitutional Scrutiny” 

Defendants offer no reason to conclude that discharging Major Witt can survive the 

“searching constitutional inquiry,” Marcum, 60 M.J. at 205, that is required under Lawrence. 

There is no attempt to justify the discharge on the theory that homosexual conduct could be 

criminalized. This was the principal argument from Schowengerdt v. United States, 944 F.2d 

483 (9th Cir. 1991) (relying on Bowers v. Hardwick), a subsidiary argument in Beller v. 

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PLTF’S REPLY IN SUPP MTN FOR 

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NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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Middendorf, 632 F.2d 788 (9th Cir. 1980), and one of Congress’s stated reasons for adopting 

the statutory ban on gays in the military, 10 U.S.C. § 654(10). This argument cannot survive 

Lawrence, and defendants do not claim that it does. 

Defendants do not expressly argue that the military may discharge gay service 

members because their (presumed) unpopularity among straight service members interferes 

with unit cohesion. As explained in Plaintiff’s opening brief and not challenged by 

Defendants, this argument was the essence of Beller v. Middendorf, 632 F.2d 788 (9th Cir. 

1980), but it was rejected by Pruitt and Meinhold and made even less tenable by Lawrence. 

Nonetheless, Defendants cling to this argument in a truncated form when they assert that 

homosexual soldiers inhibit “bonds of trust” within the unit. Defendants’ Brief at 12. 

Acquiescence to prejudice is inescapably the government’s leading argument, but this is a 

constitutionally forbidden consideration. 

Defendants next argue that discharging Major Witt relieves “sexual tension” within her 

unit. But it is undisputed that there is no such tension here. Major Witt’s sexual relationship 

was with a civilian woman and occurred entirely off of Air Force premises in Major Witt’s home 

across the state from McChord Air Force Base. The unrebutted evidence is that colleagues who 

have roomed with her felt no sexual tension whatsoever. Decl. Julia Scott, ¶ 9 (shared sleeping 

quarters with Major Witt); Decl. Sue Schindler, ¶ 9 (has shared shower and toilet facilities with 

Major Witt allowing for minimal privacy). Other colleagues state that they would have no 

problems rooming with her in the future, even with knowledge of her sexual orientation. Decl. 

Jill Brinks, ¶ 9; Decl. Ann Thomas, ¶ 10; Decl. Faith Mueller, ¶ 10. 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 5 of 15
PLTF’S REPLY IN SUPP MTN FOR 

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NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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II. Plaintiff Has a Likelihood of Success On Her Procedural Due Process Claim 

Relating to the Irrebuttable Presumption of Unfitness for Service Based Upon 

The Exercise of A Constitutional Right of Bodily Autonomy

Defendants’ arguments in opposition to Major Witt’s first procedural due process 

claim are unpersuasive. First, Defendants argue that she has no liberty interest in avoiding 

discharge. Defendants’ Brief at 18-19. This claim is rebutted below. Second, Defendants 

argue that § 654 does not create an irrebuttable presumption, because its scope does not 

extend to heterosexual service members. Id.at 17. Actually, the exception in § 654(b)(1) for 

heterosexuals does not allow a gay person who engages in homosexual conduct to rebut the 

presumption that she is unfit for service. Plaintiff’s Brief at 42-46.

Third, Defendants argue that the irrebuttable presumption doctrine of Cleveland Board 

of Education v. LaFleur, 414 U.S. 632 (1974) has been limited to its facts. Defendants’ Brief

at 15-16. After diligent Westlaw searches, counsel found no published opinion that says this. 

The case cited by Defendants, Gilbert v. Homar, 520 U.S. 924 (1997), never mentions 

LaFleur and nowhere discusses the validity of statutory presumptions, be they rebuttable or 

irrebuttable.1 Even if LaFleur is limited to its facts, Major Witt has the same facts. Like the 

pregnant teacher in LaFleur, Major Witt is being discharged from her job because of an 

irrebuttable presumption that she is unfit for further employment as a result of intimate sexual 

conduct protected by substantive due process. Defendants must make an individualized 

determination, not rely on an immovable presumption. 

 

1

 Gilbert did, however, note the constitutional necessity of a reasonably prompt post-deprivation hearing, and 

remanded for the lower courts to consider whether a 23-day delay between suspension without pay and a hearing 

violated due process. 520 U.S. at 935-36. This doctrine is discussed more fully below. 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 6 of 15
PLTF’S REPLY IN SUPP MTN FOR 

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NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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Fourth, Burlington Northern Railroad Co. v. Department of Public Services, 763 F.2d 

1106, 1113 (9th Cir. 1985), stated that “a statutorily defined irrebutable presumption ... is not 

unconstitutional in statutes which regulate economic matters.” (emphasis added). In cases 

involving individual rights protected by substantive due process, LaFleur remains good law. 

Lawrence Tribe, Constitutional Law § 16-34 at 1622-24 (2nd Ed. 1988). Lawrence erases any 

doubt that this is such a case. 

III. Plaintiff Has A Likelihood of Success On Her Procedural Due Process 

Claim For Denial of a Reasonably Prompt Post-Suspension Hearing

A. The Air Force Has Offered No Justification for its Unreasonable 

Delay in Providing a Hearing, in violation of Barchi. 

Defendants do not deny that due process requires a reasonably prompt post-deprivation 

hearing if a pre-deprivation hearing is not held. Barry v. Barchi, 443 U.S. 55, 56 (1979). 

Major Witt was informed that she would be deprived of a liberty interest, she was suspended, 

and then she was left to wonder, indefinitely, when or if a hearing would become available to 

contest the threatened loss. Defendants imply that Major Witt is seeking two separate hearings: 

one for the suspension and another for the discharge. The two events cannot be distinguished. 

In November 2004, Defendants announced their plan to discharge Major Witt from all military 

service, and made her removal from service effective immediately. The deprivation began then, 

entitling her to a prompt hearing to determine whether the deprivation would be made 

permanent. None has occurred, and none is scheduled. 

Defendants have made no effort to justify the more than 17 month delay that has elapsed 

so far in this case. AFI 36-3209, § 4.7 states that separation hearings are to be conducted “as 

expeditiously as possible” and “without undue delay.” As in Barchi, 443 U.S. at 66, “once 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 7 of 15
PLTF’S REPLY IN SUPP MTN FOR 

PRELIMINARY INJUNCTION - 7

NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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suspension has been imposed” the plaintiff’s “interest in a speedy resolution of the controversy 

becomes paramount.” “In these circumstances, it [is] necessary that [the suspended person] be 

assured a prompt hearing, one that would proceed without appreciable delay.” Id. Here, as in 

Barchi, there is no such assurance, and no prompt hearing has been forthcoming. At this point, 

the constitutional violation is complete, and no future hearing can “cure” the violation. Fuentes 

v. Shevin, 407 U.S. 67, 82 (1972). Major Witt’s due process interest in a speedy resolution has 

been violated. Here, as in Fuentes, the remedy is to preclude the government from going forward 

with the deprivation at all. 

B. Major Witt Has Cannot Now Appeal to the Air Force Board for 

Correction of Military Records. 

 Major Witt could not have obtained a reasonably prompt post-deprivation from the Air 

Force Board for Corrections of Military Records (“AFBCMR”) immediately upon receiving the 

November 9, 2004 document confirming that administrative separation proceedings would occur 

and that Major Witt “may not participate in any pay or point activity pending resolution of 

separation action.” 

First, relief from a Board for Correction of Military Records is “generally available only 

after discharge.” Correa v. Clayton, 563 F.2d 396, 399 (9th Cir. 1977). The authorities cited by 

Defendants (AFI 36-2603; 32 C.F.R. § 865.3; and Air Force Pamphlet 36-2607) confirm that 

Major Witt cannot appeal to the AFBCMR at this time because she has not yet gone through a 

discharge board hearing (the scheduling of which is wholly controlled by Defendants). AFI 36-

2603, § 4.6 states that the AFBCMR will determine “[w]hether the applicant has exhausted all 

available and effective administrative remedies. If the applicant has not, the application will be 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 8 of 15
PLTF’S REPLY IN SUPP MTN FOR 

PRELIMINARY INJUNCTION - 8

NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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denied on that basis.” See also AFI 36-2603, § 3.3; Air Force Pamphlet 36-2607, § 2.1 Federal 

regulations say the same thing: “Before applying, applicants should . . . [e]xhaust other available 

administrative remedies (otherwise the Board may return the request without considering it).” 

32 C.F.R. § 865.3. AFBCMR jurisdiction cannot be invoked until after Major Witt has a 

discharge hearing, and after the discharge authority makes a final decision based on the 

recommendations of the officers at that hearing. 

 Second, the AFBCMR does not conduct hearings of the sort required by Barchi. As the 

regulations makes clear, the AFBCMR normally functions as an appellate body that considers 

briefs (see AFI 36-2603, § 3.8) and reviews a decision made by some other Air Force decision 

maker by examining the record made below. AFI 36-2603, § 2.3. Accord 32 C.F.R. § 865.2(c). 

In the present case, there has been no administrative discharge board hearing, and thus there is 

no evidentiary record that anyone can review. 

 Defendants may contend that the AFBCMR has the discretion to order a hearing if it 

wishes to do so. However, the regulation and the parallel CFR make clear that Major Witt has 

no right to a hearing before the AFBCMR: “The Board in its sole discretion determines 

whether to grant a hearing. Applicants do not have a right to a hearing before the Board.” 

AFI 36-2603, § 4.4. Accord 32 C.F.R. 865.4. Under the Due Process Clause she is entitled to a 

meaningful hearing. Yet she has no entitlement to such a hearing before the AFBCMR. 

 Finally, even if Major Witt could have appealed to the AFBCMR at some point during 

the last 17 months, and even if she had requested and the AFBCMR had granted her a 

discretionary hearing, there is absolutely nothing to guarantee that such a hearing would be held 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 9 of 15
PLTF’S REPLY IN SUPP MTN FOR 

PRELIMINARY INJUNCTION - 9

NO. C06-5195 RBL 

CARNEY 

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SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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promptly. Absent some assurance that a hearing will in fact be held “without appreciable 

delay,” Barchi, 443 U.S. at 56, there is a procedural due process violation. 

C. Major Witt Has A Protectible Liberty Interest In Avoiding LessThan-Honorable Discharge. 

Major Witt agrees with Defendants that there is no property interest in a position as a 

commissioned reserve officer. However, Major Witt does have a liberty interest in avoiding less 

than Honorable discharge. Under the line of “stigma-plus” cases stemming from Board of 

Regents v. Roth, 408 U.S. 564 (1972), it well established that a party who suffers from public 

disclosure of a stigmatizing statement by government and who suffers the concomitant denial of 

some more tangible interest such as employment, has a liberty interest which the due process 

clause protects. Cox v. Roskelley, 359 F.3d 1105 (9th Cir. 2004); Ulrich v. City and County of 

San Francisco, 308 F.3d 968, 982 (9th Cir. 2002). 

In the present case, the Air Force has given Major Witt notice of its intent to give her a 

General Discharge under Honorable Conditions, which is one level below an Honorable 

Discharge. Decl. Witt, ¶ 26. Moreover, discharge of a reserve officer for homosexual conduct 

falls within the class of discharges for “substandard performance of duty.” AFI 36-3209, 

§ 2.26.1. Defendants stigmatize Major Witt when they proclaim that her service to her country 

has been substandard, and that her presence in the Air Force poses an unacceptable risk to 

military preparedness. Defendants, inadvertently revealing their hostility to gays and lesbians, 

assume that the stigma involved in her discharge is the fact of her sexual orientation. 

Defendants’ Brief at 3, 19. To the contrary, her sexual orientation is not shameful. Instead, the 

government’s message of unfitness for job performance creates the stigma. 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 10 of 15
PLTF’S REPLY IN SUPP MTN FOR 

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NO. C06-5195 RBL 

CARNEY 

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SPELLMAN 

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 SEATTLE, WA 98104-5017

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 TEL (206) 622-8020

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 Three types of discharges may result from administrative proceedings: Honorable, 

General, or Undesirable. A general discharge is appropriate “when a member’s military record is 

not sufficiently meritorious to warrant an Honorable characterization.” 32 C.F.R. § 41.9(a)(2). 

“Because the vast majority of servicemen receive honorable discharges, a general discharge 

severely stigmatizes its recipient and significantly disadvantages him in the job market.” Correa, 

563 F.2d at 397, n.1. 

 The Court of Claims has distinguished between military discharges to which the 

government attaches some stigma, and those to which no stigma attaches: 

[C]ourts have held that an enlisted member has a liberty interest in his 

employment. 

This liberty interest prevents the military from discharging a service member 

without due process – but only in cases where a “stigma” would attach to the 

discharge. [Citations]. In this case, plaintiff was forced to retire based on the 

number of years he served. Because there is no stigma attached to this type of 

mandatory retirement, plaintiff’s due process rights were not implicated.

Canonica v. United States, 41 Fed.Cl. 516, 524 (1998) (bold italics added). “These principles 

also apply to officers.” Golding v. United States, 48 Fed.Cl. 697, 726 (2001). 

 Because anything less than an Honorable discharge is severely stigmatizing, a proceeding 

at which a service member may receive a less than Honorable discharge must satisfy the 

requirements of procedural due process: 

This court . . . has reviewed with scrupulous care cases of less than honorable 

discharges effected by administrative fiat without court martial convictions; we 

have done so because of the stigma thereby inflicted. The military are not 

permitted to return persons to civil life with an unfair and derogatory 

characterization of their military service, attached without strict conformity to 

law, and full due process protection. 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 11 of 15
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NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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Midgett v. United States, 221 Ct. Cl. 171, 603 F.2d 835, 848 (1979) (bold italics added). Accord

Weaver v. United States, 46 Ct. Cl. 69, (2000) (“The court recognizes Mr. Weaver was 

stigmatized by the Other Than Honorable administrative discharge for reasons of sexual 

misconduct and therefore, was entitled to due process,” citing Correa, 563 F.2d at 397, n.1); Cf.

Kidwell v. Department of the Army, 56 F.3d 279, 285 (D.C. Cir. 1995). In fact, if the certificate 

of military discharge lists a stigmatizing reason for the discharge, it triggers due process 

protections even if the discharge is characterized as Honorable. See, e.g., Rogers v. United 

States, 24 Cl. Ct. 676, 684 (1991). 

 In this case the Air Force seeks to give Major Witt a General Discharge. Because such a 

discharge would be severely stigmatizing, and it is accompanied by a concrete change in her 

legal status (inability to earn pay and points or to continue towards promotion or pension), Major 

Witt meets the stigma-plus test and is entitled to “full due process protection.” Midgett, 603 F.2d 

at 848. 

IV. Major Witt Meets The Criteria for Preliminary Injunctive Relief

 Major Witt is suffering irreparable harm, and the balance hardships tips strongly in her 

favor. In McVeigh v. Cohen, 983 F.Supp. 215 (D.D.C. 1998), another case involving an attempt 

to discharge a military officer who had served his country for 17 years on grounds of homosexual 

conduct, the District Court granted a preliminary injunction with these comments: 

Without this Court’s immediate intervention, the plaintiff will lose his job, 

income, pension, health, and life insurance, and all the other benefitd attendant 

with being a naval officer. Having served honorably for the last seventeen years, 

Plaintiff will be separated from a position which is central to his life on the sole 

ground that he has been labeled a “homosexual” and thus by definition unfit for 

service. The stigma that attaches to such an accusation without substantiation is 

significant enough that this Court believes it must grant the injunctive relief 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 12 of 15
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NO. C06-5195 RBL 

CARNEY 

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SPELLMAN 

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 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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sought. In cases nearly identical to this courts have accordingly granted a 

preliminary injunction, [citations]. 

In contrast to the serious injury that Plaintiff immediately faces if discharged, 

there is no appreciable harm to the Navy if Senior Chief McVeigh is permitted to 

remain in active service. Indeed, the Navy will only be enhanced by being able 

to retain the Plaintiff’s seventeen years of service experience. 

McVeigh, 983 F. Supp. at 221. 

 The facts of this case are as strong or stronger than those in McVeigh. Major Witt has 

been repeatedly decorated for her exceptional service, and the Air Force itself made her the 

official “poster child” for recruitment of nurses. Decl. Witt, ¶¶ 5-10. There is a grave shortage 

of flight nurses at the present time. Id. at ¶ 29. The record demonstrates that discharging Major 

Witt will hurt morale and cohesiveness. Plaintiff’s Brief at 10-12. And finally, the Court has 

undisputed evidence that if she were to be discharged, and then later reinstated by a final 

judgment of this Court, the resulting gap in her service record would make it impossible for her 

to ever obtain any future promotion. Id. at ¶ 24. 

 In a similar case the Ninth Circuit affirmed the granting of preliminary injunctive relief 

to a gay sergeant who was resisting discharge. Watkins v. United States Army, 837 F.2d 1428, 

1431 (9th Cir. 1987), aff’d on other grounds 875 F.2d 699 (9th Cir. 1989) (en banc). Here, as in 

Watkins and McVeigh, preliminary injunctive relief should be granted.

III. CONCLUSION

 For the reasons stated above, Major Witt asks this Court to grant her motion and to 

preliminarily enjoin the defendants from continuing her suspension and from discharging her. 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 13 of 15
PLTF’S REPLY IN SUPP MTN FOR 

PRELIMINARY INJUNCTION - 13

NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

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WIT004 plds he124203 5/12/06 

DATED this 12th day of May, 2006. 

CARNEY BADLEY SPELLMAN, P.S. 

By s/James E. Lobsenz______ 

James E. Lobsenz, WSBA #8787 

Nicki D. McCraw, WSBA #20533 

On Behalf of the American Civil Liberties 

Union of Washington 

 CARNEY BADLEY SPELLMAN, P.S. 

 701 Fifth Avenue, Suite 3600 

 Seattle, WA 98104 

 Telephone: (206) 622-8020 

 Facsimile: (206) 622-8983 

 E-Mail: lobsenz@carneylaw.com

 E-Mail: mccraw@carneylaw.com

AMERICAN CIVIL LIBERTIES UNION OF 

WASHINGTON 

By s/ Aaron H. Caplan 

Aaron H. Caplan, WSBA #22525 

American Civil Liberties Union of Washington 

 705 Second Avenue 

 Seattle WA 98104 

 Telephone: (206)624-2184 

E-Mail: caplan@aclu-wa.org

Attorneys for Plaintiff

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 14 of 15
PLTF’S REPLY IN SUPP MTN FOR 

PRELIMINARY INJUNCTION - 14

NO. C06-5195 RBL 

CARNEY 

BADLEY 

SPELLMAN 

 LAW OFFICES

 A PROFESSIONAL SERVICE CORPORATION

 700 FIFTH AVENUE, #5800

 SEATTLE, WA 98104-5017

 FAX (206) 467-8215

 TEL (206) 622-8020

1 

2 

3 

4 

5 

6 

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9 

10 

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WIT004 plds he124203 5/12/06 

 

CERTIFICATE OF SERVICE

I hereby certify that on May 12, 2006, I electronically filed the foregoing with the Clerk of 

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

following: 

Peter J. Phipps peter.phipps@usdoj.gov

Marion J. Mittet Jamie.mittet@usdoj.gov 

James E. Lobsenz Lobsenz@carneylaw.com

Nicki D. McCraw McCraw@carneylaw.com

Aaron Caplan caplan@aclu-wa.org

 _______//s//_______________________________ 

 Aaron H. Caplan 

Case 3:06-cv-05195-RBL Document 25 Filed 05/12/06 Page 15 of 15