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Log Cabin Republicans v. United States

October 12, 2010

LOG CABIN REPUBLICANS, A NON-PROFIT CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND ROBERT M. GATES, SECRETARY OF DEFENSE, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips

FINDINGS OF FACT & CONCLUSIONS OF LAW AFTER COURT TRIAL [Fed. R. Civ. P. 52]

This case was tried to the Court on July 13 through 16 and July 20 through 23, 2010. After conclusion of the evidence and closing arguments on July 23, 2010, both sides timely submitted supplemental post-trial briefing on the admissiblility of a pretrial declaration submitted by Log Cabin Republicans member John Doe,*fn1 and the matter stood submitted.

Having considered all the evidence presented by the parties, as well as the argument and briefing by counsel, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.

FINDINGS OF FACT*fn2

1. Plaintiff Log Cabin Republicans ("Log Cabin," "LCR," or "Plaintiff") is a non-profit corporation founded in 1977 and organized under the laws of the District of Columbia. (Trial Exs. 109 [Bylaws], 110 [Articles of Incorporation].)

2. Plaintiff's mission includes "assist[ing] in the development and enactment of policies affecting the gay and lesbian community... by [the] federal government[]... and advocat[ing] and support[ing]... activities or initiatives which (i) provide equal rights under law to persons who are gay or lesbian, [and] (ii) promote nondiscrimination against or harassment of persons who are gay or lesbian...." (Trial Ex. 109 [Mission Statement, attached as Ex. A to Bylaws].) The relief sought here, i.e., the ability of homosexual servicemembers to serve openly in the United States Armed Forces through repeal of the Don't Ask, Don't Tell Act, relates to both aspects of Log Cabin's mission.

3. Plaintiff filed its Complaint on October 12, 2004. (Doc. No. 1.) It filed a First Amended Complaint ("FAC") on April 28, 2006. (Doc. No. 25.)

4. Plaintiff seeks only declaratory and injunctive relief in its First Amended Complaint; neither its claims nor the relief sought require individualized proof on the part of its members.

John Doe's Standing

5. John Doe serves as a lieutenant colonel in the United States Army Reserve. He joined Log Cabin Republicans in early September 2004 by completing an application form (using a pseudonym) and paying annual dues through Martin Meekins, then a member of Plaintiff's national board of directors. Meekins accepted the application form and dues payment from Doe and forwarded them to LCR's national headquarters. (Trial Ex. 38.)

6. Doe arranged to pay his membership dues in this manner because he feared he would be discharged from the Army Reserve pursuant to the Don't Ask, Don't Tell Act if he joined the organization openly, using his true name. Id.

7. Thus, at the time the Complaint was filed on October 12, 2004, John Doe was a member in good standing of Plaintiff Log Cabin Republicans.

8. To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual orientation a secret from his co-workers, his unit, and his military superiors, and he may not communicate the core of his emotions and identity to others in the same manner as heterosexual members of the military, on pain of discharge from the Army. (Doc. No. 212 ["July 6, 2010, Order"] at 16; Trial Ex. 38.)

9. Doe paid annual membership dues shortly before this action was filed in October 2004, but LCR did not introduce evidence showing Doe paid dues, or otherwise made a financial contribution, to the organization after 2004.

10. The evidence was conflicting regarding the effect of a member's nonpayment of dues. James Ensley testified that when a member failed to renew his or her annual dues payment, Log Cabin Republicans viewed the member as a "former" or "inactive" member, but the name would not be stricken from LCR's membership rolls or electronic database simply because of tardiness in paying annual dues. (Trial Tr. 74:12-75, July 13, 2010.) Terry Hamilton, another member of the national board of directors, testified that a member who failed to renew his or her membership timely no longer would be considered a member, but his testimony did not contradict Ensley's testimony regarding the mailing list or membership rolls. (Trial Tr. 57:5-8, July 13, 2010.)

11. Despite the lack of evidence that Doe had paid annual membership dues to LCR after 2004, he still served in the Army Reserve and still was subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a personal stake in the outcome of the case, and his injury -- his susceptibility to discharge under the Act -- continued to be redressable by favorable resolution of the lawsuit.

John Nicholson's Standing

12. John Alexander Nicholson, III, enlisted in the United States Army in May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As detailed below, he received an honorable discharge from the Army on March 22, 2002, pursuant to the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3, 1185:22-1187:9, July 20, 2010.)

13. In August 2005, Nicholson and others embarked on a nationwide speaking tour sponsored by LCR to raise awareness of the movement to repeal the Don't Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July 21, 2010.)

14. LCR's national and Georgia state chapter leaders asked Nicholson to join the organization formally after he gave a speech at LCR's national convention on April 28, 2006; he did not pay dues or make a cash contribution at that time, but was told his membership was granted in exchange for his services to the organization. (Trial Tr. 1207:22-1208:25, 1211:25-1212:15, July 21, 2010.) Later he was told his was an honorary membership. (Trial Tr. 1211:10-12, 1214:13-15, July 21, 2010.)

15. Nicholson testified credibly that he did not complete a paper membership application form on April 28, 2006, because he gave the necessary information to an LCR administrative assistant who entered it directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.) Plaintiff maintains an electronic database of its membership which lists Nicholson as a member of Log Cabin Republicans as of April 28, 2006. (Trial Tr. 1209:20-22, 1212:16-1213:16, July 21, 2010.) Nicholson testified that he remembered the precise date Log Cabin's Georgia chapter granted him honorary membership because it was the same day he addressed LCR's national convention. (Trial Tr. 1208:11-15, 1210:11-1212:15, July 21, 2010.)

16. The testimony of James Ensley, President of LCR's Georgia chapter since 2006 and a member of its national board of directors since 2008, corroborated Nicholson's testimony regarding the date he became a member of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) The Georgia chapter conferred honorary membership on Nicholson at the 2006 Log Cabin Republicans national convention, in recognition of his "remarkable" efforts on the nationwide speaking tour and on college campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-16, July 13, 2010.)

17. Ensley specifically recalled the date the Georgia chapter conferred honorary membership on Nicholson because Ensley's congressman had arranged a private tour of the White House for Ensley on the morning of April 28, 2006, which was the same day Nicholson addressed the convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The Court found Ensley to be a candid and credible witness.

18. Terry Hamilton is a 25-year member of Log Cabin Republicans and now serves as chairman of its national board of directors. (Trial Tr. 33:11-35:22, July 13, 2010.) He verified that the organization's membership records reflected Nicholson's membership status since April 28, 2006, and also that Nicholson regularly attended and spoke at the organization's annual conventions. (Trial Tr. 43:14-45:1, July 13, 2010.) Based on these indicia, Hamilton understood Nicholson to be a member of the organization since that date. (Trial Tr. 38:8-39:3, July 13, 2010.) The Court found Hamilton a credible and reliable witness.

19. Thus, Nicholson officially joined Log Cabin Republicans on April 28, 2006, and has been a member continuously since then. (Trial Tr. 1208:11-15, 1214:24-1215:17, July 21, 2010.)

20. At the time Nicholson was conferred honorary membership, he satisfied the requirements for membership under section 2.02 of the Log Cabin Republican Bylaws, which states: Honorary and Special Members: The Board of Directors may establish other criteria for granting an Honorary Membership to Log Cabin Republicans for individuals who have exhibited a unique or noteworthy contribution to the Mission of the Corporation or a Special Membership to Log Cabin Republicans for individuals or entities that have provided assistance to the Corporation.*fn3 (Trial Ex. 109.)

21. Nicholson's membership in Log Cabin Republicans has been uninterrupted and continuous since April 28, 2006, the date Plaintiff's Georgia chapter conferred honorary membership upon him and also the date Plaintiff filed its First Amended Complaint. In light of the Court's May 27, 2010, Order, this is sufficient.

22. Martin Meekins testified credibly that the initiative for filing this lawsuit came from the rank and file of the organization; Meekins then interviewed members regarding the viability of a lawsuit and to determine if the members met the requirements to confer standing on the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19, 705:11-707:12, July 16, 2010.)

Testimony from Former Servicemembers

Michael Almy 23. Michael Almy served for thirteen years as a commissioned officer in the United States Air Force, finishing his service as a major. (Trial Tr. 726:21-727:11, 728:11-12, July 16, 2010.) His family has a heritage of military service; his father retired as a colonel in the Air Force, and two uncles served as career military officers as well. (Trial Tr. 728:13-22, July 16, 2010.)

24. Almy entered active duty in 1993, after obtaining an undergraduate degree in Information Technology while serving in the Army ROTC program. He did not self-identify as a gay man until a few years later. (Trial Tr. 726:23-727:2, 819:3-12, July 16, 2010.) After that, he testified, the Don't Ask, Don't Tell Act created a natural barrier between himself and his colleagues, as he could not reveal or discuss his personal life with others. (Trial Tr. 820:6-821:4, 821:19-822:9, July 16, 2010.) While it was common for the officers to socialize when off duty, he could not join them. (Trial Tr. 821:19-822:9, July 16, 2010.) All of this may have contributed to creating an aura of suspicion about him, and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.)

25. The Court found Almy a forthright and credible witness whose modest demeanor and matter-of-fact recitation of his service record did not disguise his impressive career in the Air Force. Almy was deployed to Saudi Arabia three times and helped enforce the southern "no fly" zone over Iraq. Almy set up new communications bases throughout military theaters in Jordan, Saudi Arabia, and Iraq, and was deployed in Saudi Arabia, serving in the Communications Directorate, during the 2003 invasion of Iraq. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 2010.)

26. In 2003, after returning from his third deployment to Saudi Arabia, Almy was promoted to the rank of major and accepted a position as the Chief of Maintenance for the 606th Air Control Squadron in Spangdahlem, Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy commanded approximately 180 men in the Maintenance Directorate.

(Trial Tr. 751:21-22, 753:7-11, July 16, 2010.) The three flights*fn4 in the Maintenance Directorate under his command in the 606th Air Control Squadron deployed to Iraq in September 2004. His squadron was responsible for maintaining and controlling the airspace during the invasion of Fallujah, Iraq, and he was responsible for maintaining control over the vast majority of Iraqi airspace, including Kirkuk, as well as maintaining all satellite links and voice and data communications. (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at Balad Air Base, his flight experienced frequent mortar attacks "usually several times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.)

27. After Almy completed his third deployment to Iraq in January 2005, someone began using the same computer Almy had used while deployed; that person searched Major Almy's private electronic mail message ("e-mail") files without his knowledge or permission. The search included a folder of Major Almy's personal e-mail messages,*fn5 sent to his friends and family members, and read messages, including at least one message to a man discussing homosexual conduct. (Trial Tr. 764:23-766:6-767:2, July 16, 2010.)

28. Almy thought the privacy of his messages was protected; he was very knowledgeable about the military's policy regarding the privacy of e-mail accounts because of his responsibility for information systems. (Trial Tr. 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He knew, for example, that according to Air Force policy, e-mail accounts could not be searched unless authorized by proper legal authority or a squadron commander or higher in the military chain of command. (Trial Tr. 772:20-773:4, July 16, 2010.)

29. Almy only learned his private e-mail had been searched when he returned to Germany and his commanding officer confronted Almy with the messages, read him the Don't Ask, Don't Tell Act, and pressured him to admit he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20, July 16, 2010.) At the end of the meeting, Almy was relieved of his duties, and his commanding officer informed the other officers in the squadron of this. (Trial Tr. 774:7-15, July 16, 2010.)

30. Almy had attained one of the highest level security clearances available for military personnel, "top secret SCI*fn6 clearance;" approximately three months after Almy was relieved of his duties, his security clearance was suspended. (Trial Tr. 775:8-15, July 16, 2010.)

31. Initially, Almy contested his discharge, as he felt he had not violated the terms of the Don't Ask, Don't Tell Act: he had never told anyone in the military he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather, Almy's understanding was that his discharge was based solely on the e-mail discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16, 2010.)

32. Accordingly, Almy invoked his right to an administrative hearing and solicited letters of support from those who had worked with him in the Air Force. (Trial Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone he asked to write such a letter agreed to do so. (Trial Tr. 777:17-25, July 16, 2010.)

33. Colonel Paul Trahan, U.S. Army (Ret.), wrote: "My view is that Major Almy has been, and will continue to be an excellent officer. As a former Commander and Inspector General I am well aware of the specifics of the Homosexual Conduct Policy. To my knowledge, Major Almy is not in violation of any of the provisions of the policy. To the contrary, it appears that in prosecuting the case against Major Almy, the USAF may have violated the 'Don't Ask, Don't Tell Policy,' the Electronic Privacy Act and Presidential directives regarding the suspension of security clearances." (Trial Ex. 113 [Character Reference Letter from Col. Paul Trahan, U.S. Army (Ret.)].)

34. Captain Timothy Higgins wrote: "Of the four maintenance directorate chiefs I have worked with at the 606th, Major Almy is by far the finest. During his tenure as the [director of logistics], he had maintenance training at the highest levels seen to date.... His troops respected him because they believed he had their best interests at heart." (Trial Ex. 117 [Character Reference Letter from Timothy J. Higgins, Capt. USAF].)

35. Those who served under Almy wrote equally strong praise: "I can say without reservation that Maj. Almy was the best supervisor I have ever had." (Trial Ex. 120 [Character Reference Letter from Rahsul J. Freeman, 1st Lt., USAF].) "I was deployed with him during the NATO Exercise CLEAN HUNTER 2004. His leadership was key to our successful completion of the mission. He was well liked and respected by the enlisted personnel in the unit." (Trial Ex. 122 [Character Reference Letter from Leslie D. McElya, SMSgt. USAF (Ret.)].)

36. Almy's commanding officer while his discharge proceedings were pending, Lt. Col. Jeffrey B. Kromer, wrote that he was convinced "the Air Force, its personnel, mission and tradition remains unchanged and unharmed despite [Almy's] alleged [violations of the Don't Ask, Don't Tell Act]." (Trial Ex. 114.)

37. During the course of Almy's discharge proceedings, he was relieved of his command, but remained at Spangdahlem Air Base performing "ad hoc" duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy testified he observed the effect his abrupt removal from his duties had on his former unit: the maintenance, availability, and readiness of the equipment to meet the mission declined. (Trial Tr. 813:19-24, 815:2-18, July 16, 2010.)

38. One officer in the 606th Air Control Squadron observed that the squadron "fell apart" after Major Almy was relieved of his duties, illustrating "how important Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex. 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt. USAF, 606th Air Control Squadron].) 39. After sixteen months, Almy agreed to drop his request for an administrative hearing and to accept an honorable discharge. He testified he did so because of his own exhausted emotional state and the risk that a less-than-honorable discharge would affect his ability to obtain a civilian job or receive his retirement benefits. (Trial Tr. 798:8-799:13, July 16, 2010.) Almy refused to sign his official discharge papers, however, because they listed the reason for discharge as admitted homosexuality. (See Trial Ex. 112; Trial Tr. 800:1-801:20, July 16, 2010.)

40. Major Almy received many awards and honors during his service in the Air Force. For example, while serving at Tinker Air Force Base in the late 1990s with the Third Combat Communications Group, he was selected as "Officer of the Year," chosen as the top performer among his peers for "exemplary leadership, dedication to the mission, and going above and beyond the call of duty." (Trial Tr. 741:1-11, July 16, 2010.) In 2001, he was one of six Air Force officers chosen to attend the residential training program for officers at the Marine Corps Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005, he was awarded the Lt. General Leo Marquez Award, given to the top Air Force communications officer serving in Europe. (Trial Tr. 760:8-761:1, July 16, 2010.) Although Almy had been relieved of command during the pendency of the discharge proceedings, Almy's wing commander, Colonel Goldfein, recommended that Almy be promoted to lieutenant colonel. (Trial Tr. 816:19-818:1, July 16, 2010.)

41. Almy testified that if the Act were no longer in effect, he "wouldn't hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.)

Joseph Rocha

42. Joseph Rocha enlisted in the United States Navy on April 27, 2004, his eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family, like Major Almy's, had a tradition of military service, and the September 11, 2001, attacks also motivated him to enlist. (Trial Tr. 474:5-24, July 15, 2010.) He wanted to be an officer in the United States Marine Corps, but was not admitted to the Naval Academy directly out of high school; so he hoped to enter Officer Training School through diligence as an enlisted man. (Trial Tr. 473:24-474:24, July 15, 2010.)

43. After successfully completing basic training, Rocha was promoted to seaman apprentice and received further training in counter-terrorism and force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then volunteered for deployment on a military mission to Bahrain. (Trial Tr. 476:6-12, July 15, 2010.)

44. Once he arrived at the Naval Support base in Bahrain, Rocha sought out the base's canine handler position because he wanted to specialize in becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15, 2010.)

45. The canine group is an elite and competitive unit, for which qualification is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha volunteered his off-duty time to earn the qualifications to interview and be tested for a kennel-support assignment; during this time, his interactions with members of the canine unit were limited to one or two handlers on the night shift when he volunteered. (Trial Tr. 478:20-479:13, July 15, 2010.)

46. Eventually, Rocha took and passed oral and written examinations with Chief Petty Officer Toussaint, the canine group's commanding officer; Rocha met the other qualifications and received an assignment in kennel support. (Trial Tr. 480:11-19, 481:4-9, July 15, 2010.) His duties were to ensure the dogs -- that were trained to sniff and detect explosives and explosive devices -- were clean, fed, medicated, and exercised. (Trial Tr. 481:10-17, July 15, 2010.)

47. At the same time, Rocha voluntarily participated in additional physical training exercises with members of the Marine Corps, such as martial arts and combat operations training, in the belief this eventually would improve his chances for admission to the Naval Academy. (Trial Tr. 482:16-483:6, July 15, 2010.)

48. As Rocha aspired to become a Marine officer, after receiving permission through the Marine chain of command, he began "more formal training," eventually earning martial arts, combat, and swimming qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)

49. Once assigned as kennel support to the canine unit and under Chief Petty Officer Toussaint's command, Rocha was hazed and harassed constantly, to an unconscionable degree and in shocking fashion. When the eighteen-year-old Rocha declined to participate in the unit's practice of visiting prostitutes, he was taunted, asked if he was a "faggot," and told he needed to prove his heterosexuality by consorting with prostitutes. (Trial Tr. 486:18-487:2, 488:3-7, July 15, 2010.) Toussaint freely referred to him as "gay" to the others in the unit, who then began to use derogatory language towards Rocha. (Trial Tr. 486:11-17, July 15, 2010.)

50. When Rocha refused to answer questions about his sexual orientation from Toussaint and others in the unit, "it became a frenzy," in Rocha's words, and his superiors in the canine unit would gather around him, simulate sexual positions, and ask if U.S. Marine Corps soldiers performed various sexual acts on him. (Trial Tr. 487:20-488:7, 488:8-19, July 15, 2010.) Toussaint ordered all of the other men in the unit to beat Rocha on the his nineteenth birthday. (Trial Tr. 485:16-486:3, July 15, 2010.)

51. On one occasion that Rocha testified was especially dehumanizing, Toussaint brought a dozen dogs to the Department of Defense Dependents School for a bomb threat training exercise. For the "training exercise" he instructed Rocha to simulate performing oral sex on another enlisted man, Martinez, while Toussaint called out commands about how Rocha should make the scenario appear more "queer." (Trial Tr. 490:13-492:19, July 15, 2010.)

52. On another occasion, Toussaint had Rocha leashed like a dog, paraded around the grounds in front of other soldiers, tied to a chair, force-fed dog food, and left in a dog kennel covered with feces. (Trial Tr. 521:11-522:1, July 15, 2010.)

53. Rocha testified that during this deployment in Bahrain, he never told anyone he was gay because he wanted to comply with the Don't Ask, Don't Tell Act. (Trial Tr. 487:20-488:2, July 15, 2010.) He did not report any of the mistreatment he suffered, although he believed it violated Navy regulations. (Trial Tr. 488:20-489:14, July 15, 2010.) Toussaint was his commanding officer to whom he normally would direct such a report yet was either responsible for the mistreatment or present when others engaged in it. (Id.)

54. Rocha's only other choice was to report the misconduct to the Inspector General, which he did not believe was feasible. (Trial Tr. 499:6-16, 533:2-19, July 15, 2010.) He was eighteen to nineteen years old at the time, far from home, and all of the perpetrators were senior to him in rank and led in the misconduct by his commanding officer. (Trial Tr. 488:20-489:14, July 15, 2010.)

55. Eventually Rocha received the assignment he had hoped for, returning to the United States and reporting to Lackland Air Force Base for Military Working Dog Training School. (Trial Tr. 499:20-500:1, July 15, 2010.)

56. Once he completed the training at Lackland successfully, he returned to Bahrain, where he found that although he was now a military dog handler himself, the same atmosphere prevailed. (Trial Tr. 500:2-6, 16-18, July 15, 2010.)

57. A new petty officer had joined the unit, Petty Officer Wilburn, who declared openly that Rocha was "everything he hated: liberal, [Roman] Catholic, and gay." (Trial Tr. 501:19-502:11, July 15, 2010.) Wilburn trailed Rocha regularly as Rocha tried to carry out his duties, taunting and harassing him. Rocha wrote Wilburn a letter complaining about his conduct; in response, Wilburn left an image of two men engaging in homosexual activity on Rocha's computer with the message that if Rocha complained, "no one will care." (Trial Tr. 502:12-504:5, July 15, 2010.)

58. When the Navy undertook an investigation of Toussaint's command (apparently unmotivated by anything Rocha said or did), Rocha was questioned by a captain but at first refused to answer any questions about the mistreatment he was subjected to because he was afraid the investigation might lead to questions about his sexual orientation and an investigation on that subject. (Trial Tr. 519:16-520:10, July 15, 2010.)

59. So great was Rocha's fear of retaliation that he responded to an investigating officer's questions regarding Toussaint only after he was threatened with a court martial if he continued to refuse to respond. (Trial Tr. 520:11-15, July 15, 2010.)

60. The Navy recognized Rocha with several awards during his service, including the Navy and Marine Corps Achievement Medal for professional achievement that exceeds expectations; the Global War on Terrorism Expeditionary Medal; the National Defense Service Medal; and the Navy Expert Rifleman Medal. (Trial Tr. 517:23-24, 518:7-8, 14-16, 519:4-7, July 15, 2010.)

61. Rocha received consistently excellent performance evaluations and reviews while he served in the Navy. (See Trial Exs. 144, 145.) In Rocha's review covering February 18, 2005, through July 15, 2005, his supervisors -- including Toussaint -- described Rocha as "highly motivated" and a "dedicated, extremely reliable performer who approaches every task with enthusiasm." (Trial Ex. 145; Trial Tr. 494:23-497:13, July 15, 2010.) Rocha's review also stated that he was a "proven performer" who was "highly recommended for advancement." (Trial Tr. 496:16-497:3, July 15, 2010.) Rocha's review recommended him for early promotion, which he received shortly thereafter. (Trial Tr. 497:7-22, July 15, 2010.) Toussaint signed the review as Rocha's senior reviewing military officer. (Trial Tr. 495:19-23, 498:4-6, July 15, 2010.)

62. Despite the ongoing harassment, Rocha continued to receive exemplary reviews from his supervisors in the canine handling unit, including Toussaint. In a review covering July 16, 2005, through June 16, 2006, then-Petty Officer Rocha is described as an "exceptionally outstanding young sailor whose performance, initiative, and immeasurable energy make[ ] him a model Master-At-Arms." (Trial Ex. 144; Trial Tr. 504:23-506,19, July 15, 2010.) The review also noted that as a military working dog handler, Rocha "flawlessly inspected [over 300 items of military equipment,] increasing the force protection of NSA Bahrain." (Trial Ex. 144; Trial Tr. 506:10-13, July 15, 2010.)

63. As a result of his performance as a military working dog handler, Rocha received the Navy and Marine Corps Achievement Medal, which is given when an enlisted member exceeds expectations. (Trial Tr. 517:15-518:6 July 15, 2010.)

64. In 2006, Rocha was chosen to receive the sole nomination from his congressman for entrance into the U.S. Naval Academy, and Rocha chose to apply to the Naval Academy's preparatory school in the event he was not accepted directly into the Naval Academy.*fn7 (Trial Tr. 506:1-4; 507:4-23, July 15, 2010.)

65. Rocha received the required nomination of everyone in his chain of command for his entry into the Naval Academy and was accepted into its preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) Hearing of acceptance to the Academy was "the most significant moment of [his] life..., [because acceptance into the Naval Academy] was the biggest dream [he'd] ever had." (Trial Tr. 519:8-15, July 15, 2010.)

66. Once he enrolled at the preparatory academy, Rocha had the opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:12-24, July 15, 2010.) His instructors at the preparatory scbool stressed the nature of the fifteen- to twenty-year commitment expected of the officer candidates. (Id.) Rocha understood he was gay when he enlisted in the Navy at age eighteen, and had complied fully with the Don't Ask, Don't Tell Act during his service, which he had thought would protect him. (Id.)

67. After reflecting on his experiences in the military working dog unit in Bahrain, however, he decided it would be impossible for him to serve under the restraints of the Act and fulfill the commitment expected of him. He then decided to inform the Navy of his sexual orientation. (Trial Tr. 522:12-523:15, July 15, 2010.)

68. He first sought permission from his immediate supervisor, Ensign Reingelstein, to speak to the division commander; Ensign Reingelstein unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr. 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with his commanding officer, Lt. Bonnieuto, who listened and told him to return to his unit. (Trial Tr. 525:2-19, July 15, 2010.)

69. Eventually, he received an honorable discharge (see Trial Ex. 144), although before accepting Rocha's statement, Lt. Bonnieuto tried to dissuade him, telling him he was being considered for various honors and leadership positions at the preparatory school, including "battalion leadership." (Trial Tr. 525:21-526:6, 527:13-528:22, 530:4-25, July 15, 2010.)

70. After his discharge, Rocha was diagnosed with service-related disorders including "post-traumatic stress disorder with major depression." (Trial Tr. 532:11-19, July 15, 2010.)

71. Rocha testified he would rejoin the Navy if the Don't Ask, Don't Tell Act was repealed. (Trial Tr. 533:24-534:2, July 15, 2010.)

72. Even when recounting the mistreatment endured under Toussaint's command, Rocha testified in an understated and sincere manner. The Court found him a forthright and credible witness.

Jenny Kopfstein

73. Jenny Kopfstein joined the United States Navy in 1995 when she entered the United States Naval Academy; after graduation and further training, she began serving on the combatant ship USS Shiloh on March 15, 2000. (Trial Tr. 919:12-14, 926:11-927:3, 927:12-19, July 16, 2010.)

74. Kopfstein was assigned as the ship's ordnance officer, which means she "was in charge of two weapon systems and a division of [fifteen] sailors." (Trial Tr. 928:22-929:6, July 16, 2010.) When assigned as "officer of the deck," Kopfstein was "in charge of whatever the ship happened to be doing at that time," and coordinating the ship's training exercises of as many as twenty to thirty sailors. (Trial Tr. 929:7-930:4, July 16, 2010.)

75. Once assigned to the USS Shiloh, Kopfstein discovered the Act made it impossible for her to answer candidly her shipmates' everyday questions about such matters as how she spent weekends or leave time; to do so would place her in violation of the Act as she would necessarily be revealing the existence of her lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.) Having to conceal information that typically was shared made her feel as though other officers might distrust her, and that trust is critical, especially in emergencies or crises. (Trial Tr. 957:6-22, July 20, 2010.)

76. The Don't Ask, Don't Tell Act's prohibition on gay and lesbian servicemembers revealing their sexual orientation affects trust among shipmates, as Kopfstein testified, because it causes people to "hide significant parts of themselves," making it harder to establish the necessary sense of teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.) When she overheard homophobic comments and name-calling by her shipmates, she felt she could neither report them nor confront the offenders, because to do either might call unwanted suspicion upon her. (Trial Tr. 932:18-933:6, July 16, 2010.)

77. After serving for four months on the USS Shiloh, Kopfstein wrote a letter to Captain Liggett, her commanding officer, stating she was a lesbian; she wanted Captain Liggett to learn this from her rather than hear it from another source. (Trial Tr. 933:7-13, 935:8-23, July 16, 2010; Trial Ex. 140 ["Memorandum of Record" from Kopfstein to Liggett, July 17, 2000].)

78. Captain Liggett did not begin any discharge proceedings after Kopfstein wrote this letter; he told her this was because he did not know her well and thought she might have written the letter not because she was a lesbian, but rather as an attempt to avoid deployment to the Arabian Gulf. (Trial Tr. 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.)

79. Kopfstein continued to serve and perform her duties in the same manner she had before writing, but no longer lying or evading her shipmates' questions about her personal life when asked. (Trial Tr. 950:25-951:11, July 20, 2010.)

80. When leaving the USS Shiloh, to be replaced by Captain Dewes, Captain Liggett not only invited Kopfstein to the farewell party at his house for the officers and their spouses, but made a point of telling her she was welcome to bring "any guest she chose" with her. (Trial Tr. 955:12-956:8, July 20, 2010.) Kopfstein and her partner attended the party, and Kopfstein testified that Captain Liggett and ...


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