LT Col. Fehrenbach's TRO To Prevent DADT Discharge and Memo.

Case 1:10-cv-00402-EJL Document 2 Filed 08/11/10 Page 1 of 3
M. ANDREW WOODMANSEE (CA SBN 201780)

MAWoodmansee@mofo.com
ARAMIDE O. FIELDS (CA SBN 239692)
AFields@mofo.com
JAMES J. CEKOLA (CA SBN 259443)
JCekola@mofo.com
JESSICA A. ROBERTS (CA SBN 265570)
JRoberts@mofo.com
MORRISON & FOERSTER LLP
12531 High Bluff Drive, Suite 100
San Diego, CA 92130-2040
Telephone: 858.720.5100
Facsimile: 858.720.5125
AARON D. TAX (DC SBN 501597)

adt@sldn.org
JOHN GOODMAN (DC SBN 383147)
JGoodman@sldn.org
SERVICEMEMBERS LEGAL DEFENSE NETWORK
P.O. Box 65301
Washington, DC 20035-5301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635
Attorneys for Plaintiff

LIEUTENANT COLONEL VICTOR J. FEHRENBACH
UNITED STATES DISTRICT COURT

DISTRICT OF IDAHO
LIEUTENANT COLONEL VICTOR J. Case No.

FEHRENBACH,
Plaintiff, APPLICATION FOR TEMPORARY

RESTRAINING ORDER AND
v. PRELIMINARY INJUNCTION
DEPARTMENT OF THE AIR FORCE;
ROBERT M. GATES, Secretary of Defense;
MICHAEL B. DONLEY, Secretary,
Department of the Air Force; LT. GENERAL
GLENN SPEARS, Twelfth Air Force
Commander, and COL. RONALD
BUCKLEY, 366th Fighter Wing Commander,
Defendants.
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Plaintiff Lieutenant Colonel Victor J. Fehrenbach (“Lt. Col. Fehrenbach”) hereby applies
to this Court for a temporary restraining order and preliminary injunction to enjoin the
Department of the Air Force; Robert M. Gates, Secretary of Defense; Michael B. Donley,
Secretary, Department of the Air Force; Lt. General Glenn Spears, Twelfth Air Force
Commander, and Col. Ronald Buckley, 366th Fighter Wing Commander (collectively
“defendants”) from discharging Lt. Col. Fehrenbach from the United States Air Force. It is
specifically requested that defendants, their agents, assistants, successors, employees, attorneys,
and all persons acting in concert or cooperation with them or at their direction or under their
control, be enjoined from discharging Lt. Col. Fehrenbach under Air Force Instruction (“AFI”)
36-3206, chapter 3, paragraph 3.6.8, which implements the law commonly referred to as “Don’t
Ask, Don’t Tell” (“DADT”). Lt. Col. Fehrenbach has given notice to defendants regarding this
application and requests that a hearing be held on Friday, August 13, 2010, or as soon thereafter
as this matter may be heard.
This application is made on the grounds that defendants have violated the Administrative
Procedure Act and Lt. Col. Fehrenbach’s rights to substantive and procedural due process under
the Fifth Amendment. Defendants will cause imminent, irreparable harm to Lt. Col. Fehrenbach
if the temporary restraining order and preliminary injunction are not issued. This application is
based upon the Verified Complaint filed in this action, the supporting memorandum of points
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and authorities, accompanying declarations and exhibits, and such further evidence and
arguments as may be presented in this matter.
Dated: ________8/11/2010_______ MORRISON & FOERSTER LLP
By: /s/ M. Andrew Woodmansee

M. ANDREW WOODMANSEE

AFields@mofo.com
JCekola@mofo.com
JRoberts@mofo.com
Telephone: 858.720.5100
Facsimile: 858.720.5125

adt@sldn.org
JGoodman@sldn.org
SERVICEMEMBERS LEGAL DEFENSE
NETWORK
P.O. Box 65301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635

LIEUTENANT COLONEL
VICTOR J. FEHRENBACH
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Case 1:10-cv-00402-EJL Document 2-1 Filed 08/11/10 Page 1 of 26

mawoodmansee@mofo.com
afields@mofo.com
jcekola@mofo.com
jroberts@mofo.com
Telephone: 858.720.5100
Facsimile: 858.720.5125

adt@sldn.org
jgoodman@sldn.org
P.O. Box 65301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635

DISTRICT OF IDAHO

FEHRENBACH,
MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF
APPLICATION FOR TEMPORARY
v. RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
Commander, and COL. RONALD
Defendants.
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TABLE OF CONTENTS
Page
I. INTRODUCTION .......................................................................................................... 1
II. STATEMENT OF FACTS.............................................................................................. 2
A. Lt. Col. Fehrenbach’s Outstanding Record of Service.......................................... 2
B. The Air Force Investigates Lt. Col. Fehrenbach’s Private Life ............................. 3
C. Separation Proceedings by the Board of Inquiry .................................................. 4
D. Recent Changes to the DADT Instruction ............................................................ 4
E. Imminent Discharge of Lt. Col. Fehrenbach ........................................................ 5
III. LEGAL STANDARD..................................................................................................... 5
IV. LT. COL. FEHRENBACH WILL SUCCEED ON THE MERITS .................................. 6
A. Lt. Col. Fehrenbach Will Succeed on the Merits of His Substantive Due Process
Claim .................................................................................................................. 6
1. Although the interest proffered by the government may be important, it
alone cannot satisfy the demands of substantive due process .................... 7
2. The Air Force did not—and cannot—establish that discharging Lt. Col.
Fehrenbach under DADT significantly furthers morale, good order and
discipline, and unit cohesion .................................................................... 7
a. Lt. Col. Fehrenbach’s outstanding service in the Air Force since
September 12, 2008 establishes that his continued service is not
detrimental to morale, good order and discipline, or unit cohesion 7
b. There is no evidence, even in the abstract, that enforcing DADT
significantly furthers morale, good order and discipline, and unit
cohesion in the military ................................................................ 9
3. The Air Force did not—and cannot—establish that discharging Lt. Col.
Fehrenbach is necessary to further morale, good order and discipline, and
unit cohesion in the Air Force ................................................................ 10
B. Lt. Col. Fehrenbach Will Succeed on His APA and Procedural Due Process
Claims Because Defendants Denied Him Multiple Procedural Safeguards
Governing the Air Force.................................................................................... 11
1. Defendants failed to follow the requirements of AFI 36-3206 for initiating
an inquiry under DADT because they lacked credible information that
there was a basis for discharge ............................................................... 12
2. The defendants failed to follow procedures mandated under AFI 36-3206,
10 U.S.C. § 831 and Military Rule of Evidence 305(d), all of which were
required for initiating an inquiry under DADT ....................................... 13
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V. LT. COL. FEHRENBACH WILL SUFFER IRREPARABLE HARM IN THE

ABSENCE OF PRELIMINARY RELIEF..................................................................... 15
A. Lt. Col. Fehrenbach Will Suffer Violations of his Constitutional Rights, Which
Cannot Later Be Remedied, If the Air Force is Not Enjoined............................. 15
B. Due to the Special Privilege of Being Able to Serve the Country and the Nature of
Lt. Col. Fehrenbach’s Role in the United States Air Force, the Harm of Discharge
is Far Greater than the Average Employment Case ............................................ 16
C. Should Lt. Col. Fehrenbach be Discharged, He Will Suffer From a Stigma that
Constitutes Irreparable Harm............................................................................. 17
VI. THE BALANCE OF HARDSHIPS TIPS SHARPLY IN LT. COL. FEHRENBACH’S
FAVOR ........................................................................................................................ 17
VII. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ARE
IN THE PUBLIC INTEREST ....................................................................................... 18
A. Holding the Military Accountable to its Own Regulations and the Constitution
Strengthens the Public’s Trust in the Military .................................................... 19
B. Preventing the Discharge of Lt. Col. Fehrenbach Would Prevent Unnecessary
Costs to the Public............................................................................................. 19
C. Preventing the Discharge of Lt. Col. Fehrenbach Advances National Security
Interests............................................................................................................. 20
VIII. CONCLUSION............................................................................................................. 20
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TABLE OF AUTHORITIES
Page(s)
CASES
Affiliates, Inc. v. Armstrong,

No. CV-09-149-BLW, 2009 U.S. Dist. LEXIS 37136 (D. Idaho Apr. 30, 2009).................... 6
Alcaraz v. INS,
384 F.3d 1150 (9th Cir. 2004)............................................................................................. 11
Chalk v. United States,

840 F.2d 701 (9th Cir. 1988)............................................................................................... 17
Choy v. Barber,
279 F.2d 642 (9th Cir. 1960)............................................................................................... 14
Cooney v. Dalton,
877 F. Supp. 508 (D. Haw. 1995)...................................................................................16, 19
Denton v. Secretary of the Air Force,

483 F.2d 21 (9th Cir. 1973)................................................................................................. 11
Elzie v. Aspin,
841 F. Supp. 439 (D. D.C. 1993)..............................................................................16, 17, 20
Gilder v. PGA Tour, Inc.,

936 F.2d 417 (9th Cir. 1991)............................................................................................... 15
Granny Goose Foods, Inc. v. Brotherhood of Teamsters,

415 U.S. 423 (1974).............................................................................................................. 5
Konn v. Laird,
460 F.2d 1318 (7th Cir. 1972)............................................................................................. 11
L.A. Mem’l Coliseum Comm’n v. Nat’l. Football League,

634 F.2d 1197 (9th Cir. 1980)............................................................................................... 5
Lawrence v. Texas,
539 U.S. 558 (2003).............................................................................................................. 6
May v. Gray,
708 F. Supp. 716 (E.D. N.C. 1988) ................................................................................16, 17
McVeigh v. Cohen,
983 F. Supp. 215 (D.D.C. 1998)......................................................................... 15, 17, 18, 19
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Monterey Mech. Co. v. Wilson,

125 F.3d 702 (9th Cir. 1997)............................................................................................... 15
Moran v. Burbine,
475 U.S. 412 (1986)............................................................................................................ 14
Morton v. Ruiz,
415 U.S. 199 (1974)............................................................................................................ 11
N. Cal. Power Agency v. Grace Geothermal Corp.,

469 U.S. 1306 (1984).......................................................................................................... 15
U.S. v. Kellam,
2 M.J. 338 (1976) ............................................................................................................... 14
United States v. Baird,

851 F.2d 376 (D.C. Cir. 1988) ............................................................................................ 14
Winter v. Natural Res. Def. Council, Inc.,

129 S. Ct. 365 (2008)...................................................................................................... 6, 18
Witt v. Department of the Air Force,

527 F.3d 806 (9th Cir. 2008)........................................................................ 4, 6, 7, 10, 16, 18
STATUTES
5 U.S.C. § 706.......................................................................................................................... 11
10 U.S.C. § 654 ...................................................................................................................... 1, 7
10 U.S.C. § 831 ...........................................................................................................3, 4, 13, 14
MISCELLANEOUS
Federal Rule of Civil Procedure 65......................................................................................... 2, 5
Military Rule of Evidence 305(d) ........................................................................................13, 14
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I. INTRODUCTION
The United States is currently engaged in a multi-front war, simultaneously fighting in
both Iraq and Afghanistan. Plaintiff Lt. Col. Victor J. Fehrenbach is a highly-decorated veteran
of both conflicts, flying as a Weapons Systems Officer in the F-15E “Strike Eagle.” In addition
to his numerous medals and commendations, he is a decorated hero, recognized by the Air Force
for saving advancing coalition troops from enemy ambush while evading constant hostile fire
during the opening days of Operation IRAQI FREEDOM. Throughout his nearly 19-year career
in the Air Force, Lt. Col. Fehrenbach consistently has been praised by his commanders who have
described him as a “Superstar,” the “best I’ve seen,” “My #1 officer/aviator,” and “[ a] War
Hero.” He has been recognized by commanders and peers alike for his superior skill, leadership
and excellence at building morale and cohesion.
Despite those facts, the United States Air Force now seeks to terminate Lt. Col.
Fehrenbach’s distinguished service under Air Force Instruction (AFI) 36-3206, which
implements 10 U.S.C. § 654, or the law commonly referred to as “Don’t Ask, Don’t Tell”
(“DADT”).1 The proceedings that culminated in that recommendation were riddled with
violations of Lt. Col. Fehrenbach’s rights, as well as applicable Air Force and Department of
Defense regulations. The Air Force intends to immediately discharge him for engaging in a
single consensual sexual act with a civilian adult in the privacy of his home—60 miles from
where he is stationed. Unless defendants’ actions are enjoined immediately, Lt. Col. Fehrenbach
1
On August 4, 2010, counsel for Lt. Col. Fehrenbach was informed that the Air Force
Personnel Board (AFPB) had met and made a recommendation to Secretary Donley’s designee,
Mr. Joe Lineberger. (Declaration of M. Andrew Woodmansee in Support of Application for
Temporary Restraining Order and Preliminary Injunction at ¶ 13.) Pursuant to AFI 36-3206
Chapter 6.10, a recommendation by the AFPB that Lt. Col. Victor Fehrenbach should be retained
would not need to go to the Secretary or his designee for further action. Under Air Force
regulations, further action by the Secretary or his designee is required if the AFPB recommended
discharge. Woodmansee Decl. at ¶ 13.
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will suffer irreparable constitutional injury. Lt. Col. Fehrenbach also will experience non-
compensable monetary loss and be denied valuable property rights (including losing his pension
and some insurance benefits) resulting from his inability to complete 20 years of service. And
just as importantly, Lt. Col. Fehrenbach’s involuntary discharge from the military threatens to
taint him with a stigma that will affect nearly every facet of his life, including his quest to secure
future employment.
Lt. Col Fehrenbach therefore requests that this Court enter an order pursuant to Federal
Rule of Civil Procedure 65 temporarily enjoining the Air Force from separating him from active
duty until such time that the Court can hold a hearing on his motion for a preliminary injunction.
II. STATEMENT OF FACTS
A. Lt. Col. Fehrenbach’s Outstanding Record of Service
Lt. Col. Fehrenbach is a highly decorated, active duty Air Force officer assigned to the
366th Fighter Wing at Mountain Home Air Force Base, Idaho. (Declaration of Victor J.
Fehrenbach in Support of Application for Temporary Restraining Order and Preliminary
Injunction (“Fehrenbach Decl.”) ¶¶ 1, 8-9.) He is a trained Fighter Weapons Systems Officer,
flying the F-15E Strike Eagle. (Id. ¶ 3.) Lt. Col. Fehrenbach has received numerous military
awards and decorations for his exemplary service, including nine USAF Air Medals, five USAF
Commendation Medals, one Navy and Marine Corps Commendation Medal, and several other
Meritorious Service and Achievement Medals. (Id. ¶ 8.) He has deployed to major combat
operations six times. (Id. ¶ 6.) His many achievements include earning a USAF Air Medal in
2003 for heroism for destroying enemy ambush targets under heavy enemy fire during Operation
IRAQI FREEDOM. (Id. ¶ 9.)
Lt. Col. Fehrenbach has consistently earned high praise for his exemplary performance in
the Air Force. His annual performance evaluations both before and after the discharge
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proceedings (and as recently as February 2010) are replete with praise for his aptitude for team-
building, proven skills in leadership, instruction and mentoring, as well as his exceptional
performance under pressure. (See id. ¶ 7, Exs. 1-15.) The citations accompanying
Lt. Col. Fehrenbach’s numerous military awards and medals contain similarly high praise for his
outstanding service. (See id., Exs. 16-24.)
B. The Air Force Investigates Lt. Col. Fehrenbach’s Private Life
On May 16, 2008, Lt. Col. Fehrenbach’s commander escorted him to the Air Force
Office of Special Investigations (“AFOSI”) at Mountain Home Air Force Base. (Id. ¶ 10.) The
commander had been told by AFOSI not to divulge to Lt. Col. Fehrenbach the reason he had
been summoned to AFOSI headquarters. (Id., Ex. 26 at 172:12-19.) Unbeknownst to
Lt. Col. Fehrenbach, AFOSI agents had requested that a Boise Police Department (“BPD”)
detective come to AFOSI’s office to interrogate Lt. Col. Fehrenbach. (Id. at 145:15-20.) The
AFOSI and the BPD had earlier initiated an investigation of Lt. Col. Fehrenbach in connection
with a false claim of sexual assault made by a male civilian. (Id. at 118:13-121:22.) Although
Lt. Col. Fehrenbach and the civilian had engaged in consensual sexual relations at Lt. Col.
Fehrenbach’s private residence, the civilian had falsely told the AFOSI and the BPD that the sex
was non-consensual. The civilian was already known by both the AFOSI and the BPD to have
made similar false accusations against others in the past and to be unreliable and untrustworthy.
(Id. at 146:1-7.)
At no time before or during the interrogation did anyone read Lt. Col. Fehrenbach his
rights under Article 31 of the Uniform Code of Military Justice (“Article 31”), or advise him of
the “DoD policy on homosexual conduct”, as required by AFI 36-3206. Although
Lt. Col. Fehrenbach requested to consult an attorney on two separate occasions, his requests
were ignored. (Id. ¶¶ 14-15.) Lt. Col. Fehrenbach never was informed that the interrogation was
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being observed by AFOSI agents, or that the interrogation was being recorded by the BPD
detective and later would be shared with AFOSI investigators. (Id., Ex. 26 at 121:17-122:11.)
The BPD detective interrogated Lt. Col. Fehrenbach about his encounter with the civilian and
questioned him about sexual conduct that was outside the scope of the accusations. (Id.)
Ultimately, the Ada County Prosecutor’s Office declined to pursue criminal charges against
Lt. Col. Fehrenbach. (Id. at 120:12-16.)
C. Separation Proceedings by the Board of Inquiry
On December 8, 2008, the Air Force ordered that Board of Inquiry (“BOI”) be convened
to recommend whether Lt. Col. Fehrenbach should be retained on active duty. (Declaration of
M. Drew Woodmansee in Support of Application for Temporary Restraining Order and
Preliminary Injunction (“Woodmansee Decl.”), Ex. 1 at 1(f).) Lt. Col. Fehrenbach filed a motion
for declaratory judgment with the legal advisor presiding over the BOI proceeding on the ground
that the discharge action violated his substantive due process rights because the discharge was
initiated contrary to the standard established by the Ninth Circuit in Witt v. Department of the Air
Force, 527 F.3d 806 (9th Cir. 2008). (Woodmansee Decl., Ex. 1 at 1(g).) The motion was
denied. On April 15, 2009, the members of the BOI recommended that Lt. Col. Fehrenbach be
discharged.2
D. Recent Changes to the DADT Instruction
On April 2, 2010, the Air Force distributed a Guidance Memorandum announcing
immediate changes to AFI 36-3206 (“Revised Instruction”). The Revised Instruction
implemented changes to the Air Force’s rules implementing DADT “and shall apply to all fact
2
During voir dire of the board members, four out of five of the members responded
affirmatively when asked, “Does any member have any moral or religious convictions that make
you believe homosexual conduct is wrong?” (Fehrenbach Decl., Ex. 26 at 76:9-12.)
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finding inquiries and separation proceedings open on or initiated on or after 25 March 2010.”3
The Revised Instruction includes guidelines for initiating investigations and describes
with greater detail what constitutes “credible information” and a “reliable person” sufficient to
initiate a DADT inquiry. During a press conference announcing the changes, Defendant Gates
explained that the guidelines would place “special scrutiny on third parties who may be
motivated to harm the service member.”4
E. Imminent Discharge of Lt. Col. Fehrenbach
Nearly two years after the Air Force initiated discharge proceedings and more than one
year after the BOI recommended that he be discharged from the Air Force, Lt. Col. Fehrenbach
continues to serve on active duty at Mountain Home Air Force Base. Absent an order of this
Court, the Air Force now intends to discharge Lt. Col. Fehrenbach. (Supra at p. 1, n. 1.)
III. LEGAL STANDARD
The Court may issue a TRO to prevent “immediate and irreparable injury, loss, or
damage [that] will result to the movant before the adverse party can be heard” at a hearing.
Fed. R. Civ. Pro. 65(b); see Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S.
423, 439 (1974) (the purpose of a temporary restraining order is “preserving the status quo”). A
preliminary injunction also acts to preserve the status quo pending a hearing on the merits. L.A.
Mem’l Coliseum Comm’n v. Nat’l. Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). For
both a TRO and a Preliminary Injunction, the movant must establish that: (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary
3
Lt. Col. Fehrenbach’s separation proceedings were still open on March 25, 2010
because the Secretary of the Air Force had not yet ordered his separation.
4
(Woodmansee Decl., Exs. 2-3.) Press Statement, Don’t Ask, Don’t Tell, Remarks
Prepared for Delivery by Secretary of Defense Robert M. Gates, Pentagon (March 25, 2010),
available at http://www.defense.gov/speeches/speech.aspx?speechid=1436.
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relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (reciting legal standard for
preliminary injunctions); see Affiliates, Inc. v. Armstrong, No. CV-09-149-BLW, 2009 U.S. Dist.
LEXIS 37136, at *7-8 (D. Idaho Apr. 30, 2009) (“The standard for issuing a temporary
restraining order is identical to the standard for issuing a preliminary injunction”).
IV. LT. COL. FEHRENBACH WILL SUCCEED ON THE MERITS
A. Lt. Col. Fehrenbach Will Succeed on the Merits of His Substantive Due
Process Claim
In Witt, the Ninth Circuit ruled that, in light of Lawrence v. Texas, 539 U.S. 558 (2003), a
discharge under DADT is constitutional only if it survives a heightened scrutiny analysis as
applied specifically to the particular service member.5 Discharging a service member is thus
unconstitutional unless: (1) the government advances “an important governmental interest;”
(2) the government shows the intrusion “upon the personal and private li[fe]” of that service
member “significantly furthers that interest;” and (3) the government shows the intrusion is
“necessary to further that interest,” i.e. “a less intrusive means must be unlikely to achieve
substantially the government’s interest.” 527 F.3d at 819 (emphasis added). With regard to the
latter two requirements, the government must make its showing “as applied”—that is, “whether
the application of DADT specifically to [the service member] significantly furthers the
government’s interest and whether less intrusive means would achieve substantially the
government’s interest.” Id. (emphasis added). Because defendants are unable to meet their
burden, an injunction is warranted.
5
Witt is controlling case law, and Lt. Col. Fehrenbach can prevail under Witt. Lt. Col.
Fehrenbach asserts, and he does not waive his right to argue, that DADT and the regulations
implementing it are facially unconstitutional and, thus, void in all circumstances; that strict
scrutiny should apply as a matter of substantive due process or equal protection; or that the
interests advanced by the government are never sufficient to meet heightened scrutiny.
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1. Although the interest proffered by the government may be important,

it alone cannot satisfy the demands of substantive due process
Under the first prong of the Witt standard, the government must demonstrate “an
important governmental interest.” Witt, 527 F.3d at 819. The Ninth Circuit in Witt held that
maintaining “military capability” was an important government interest. Id. at 818 n.5, 821.
Witt further suggested that Congress’s finding that maintaining “morale, good order and
discipline, and unit cohesion” was “the essence of military capability,” 10 U.S.C. § 654(a)(14),
was entitled to deference. Witt cautioned, however, that “deference does not mean abdication.”
527 F.3d at 821 (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).6
2. The Air Force did not—and cannot—establish that discharging Lt.

Col. Fehrenbach under DADT significantly furthers morale, good
order and discipline, and unit cohesion
DADT is unconstitutional as applied to Lt. Col. Fehrenbach because the government did
not offer any evidence before the BOI establishing that discharging Lt. Col. Fehrenbach for
engaging in consensual sexual relations with a civilian of the same sex in the privacy of his off-
base home significantly furthers the goal of maintaining discipline, good order, morale and unit
cohesion. Witt, 527 F.3d at 819.
a. Lt. Col. Fehrenbach’s outstanding service in the Air Force

since September 12, 2008 establishes that his continued service
is not detrimental to morale, good order and discipline, or unit
cohesion
Lt. Col. Fehrenbach continues to serve on active duty and has been recognized as a first-
rate and brilliant officer. In a draft promotion recommendation dated September 11, 2008, Lt.
Col. Fehrenbach’s commanders described him as a “Superstar! . . . [the] ‘best I’ve seen’ . . . ‘My
#1 officer/aviator’ . . . [ a] War Hero, leader, 11 on a scale of 10.” (Fehrenbach Decl., Ex. 15.)
6
The House of Representatives and the Senate Armed Services Committee have
approved legislation that lead to the repeal of DADT. These actions significantly undermine the
Witt finding that DADT is related in any way to any important governmental interest.
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Even now that the reason for his pending discharge is widely known in his unit, Lt. Col.
Fehrenbach works without detriment to the Air Force. (Id. ¶ 20.)
The Air Force’s evidence was insufficient to meet its heavy burden of establishing that
Lt. Col. Fehrenbach’s discharge under DADT “significantly furthers” the goal of maintaining
discipline, good order, morale and unit cohesion. The Air Force failed to present any evidence at
the BOI to support its claim that Lt. Col. Fehrenbach’s continued service on active duty would
hinder those goals. On the contrary, the evidence establishes that discharging Lt. Col.
Fehrenbach would, in fact, be detrimental to morale, good order and discipline, and unit
cohesion. (See e.g., id., Exs. 1-14.) His commanders wrote in his 2010 performance
evaluation that he is a “[p]roven leader/warrior; [who] handles every task w[ith] steady,
professional focus,” and a “[d]ynamic [officer]; [who] maintained infallible
professionalism/attitude despite huge personal challenges.” (Id., Ex. 14.) The 2010 performance
evaluation explicitly recognizes that Lt. Col. Fehrenbach “raised morale.” (Id. (emphasis
added).)
The evidence from the BOI establishes that discharging Lt. Col. Fehrenbach would harm
his unit, the Air Force, and this nation’s security. During the hearing a member of Lt. Col.
Fehrenbach’s unit, Major Michael B. Casey, testified “I think it’s a crime on the Air Force that
we are even going through this especially with a war hero. He’s been in for 18 years and is two
years shy of retirement, and is loved by the people in his squadron.” (Id., Ex. 26 at 161:1-3
(emphasis added).) And numerous witnesses testified during the BOI regarding “critically low”
staffing levels of “rated” Air Force personnel (including F-15E Weapons Systems Officers). (Id.
at 171:1-6; 176:4-19; 184:8-185:3.) To date, Lt. Col. Fehrenbach’s colleagues have remained
professional and respectful towards him because he works hard to accomplish the mission at
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hand. (Id. ¶ 20.) To the extent there has been any disruption to Lt. Col. Fehrenbach’s unit, it has
been caused exclusively by Air Force authorities who chose to investigate his private life and
then to discharge him under DADT.
b. There is no evidence, even in the abstract, that enforcing

DADT significantly furthers morale, good order and discipline,
and unit cohesion in the military
The highest leaders in the U.S. military acknowledge that there is no evidence
demonstrating that enforcing DADT furthers morale, good order and discipline, and unit
cohesion. In February 2010, the Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen,
testified before the Senate Armed Services Committee that he was unaware of any evidence
suggesting that repeal of DADT would undermine unit cohesion.7 At the same hearing,
Defendant Secretary of Defense, Robert M. Gates, testified that the assertion that allowing
openly gay or lesbian service members would negatively affect unit cohesion has “no basis in
fact.” (Id. at 59.) Even those who support DADT agree. On March 18, 2010, the former
commander of NATO forces, Gen. John Sheehan, U.S. Marine Corp. (ret.) testified before the
Senate Committee on Armed Services, that he is not aware of any proof that DADT increases
military effectiveness. Department of Defense Hearing to Receive Testimony Relating to the
“Don’t Ask Don’t Tell” Policy, Before the S. Comm. on Armed Services, 111th Cong. 33 (2010).
That enforcing DADT does not further morale, good order and discipline, and unit
cohesion is evidenced also by the experience of U.S. allies which do not ban openly gay and
7
Department of Defense Authorization For Appropriations For Fiscal Year 2011, and to
Receive Testimony Relating to the “Don’t Ask Don’t Tell” Policy, Hearing Before the S. Comm.
on Armed Services, 111th Cong. 69 (2010) [hereinafter Woodmansee Decl., Ex. 4] (testimony of
Adm. Mullen, Chairman of the Joint Chiefs of Staff). In September 2009, Air Force Colonel Om
Prakash published an article—which won the Secretary of Defense National Security Essay
Competition for 2009—concluding that “the stated premise of the law—to protect unit cohesion
and combat effectiveness—is not supported by any scientific studies.” (Woodmansee Decl., Ex.
5, Col. Om Prakash, The Efficacy of “Don't Ask, Don't Tell”, 55 JOINT FORCES Q. 4th Quarter
2009, at 89.)
9
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lesbian individuals from serving in their militaries. Adm. Mullen testified in February 2010 that
he had spoken to his counterparts in countries that allowed openly gay and lesbian individuals to
serve in their militaries and that his counterparts informed him there had been “no impact on
military effectiveness” as a result.8 (Woodmansee Decl., Ex. 4 at 69.) There is no evidence that
enforcing DADT furthers morale, good order and discipline, and unit cohesion, let alone any
evidence that enforcing DADT against Lt. Col. Fehrenbach does so.
3. The Air Force did not—and cannot—establish that discharging

Lt. Col. Fehrenbach is necessary to further morale, good order
and discipline, and unit cohesion in the Air Force
DADT is unconstitutional as applied to Lt. Col. Fehrenbach because the government has
not established that the intrusion he experienced is necessary to further the stated governmental
interest, i.e., a less intrusive means must be unlikely to achieve substantially the government’s
interest. Witt, 527 F.3d at 819. DADT was applied to him for off-base, off-duty conduct with a
civilian. This unlimited intrusion into the private life of Lt. Col. Fehrenbach is not necessary to
further morale, good order and discipline and unit cohesion. Less intrusive means are available
to achieve substantially the government’s asserted interest. Lt. Col. Fehrenbach engaged in
consensual sexual conduct with a civilian who was not otherwise associated with his unit. The
Air Force already has established rules in AFI 36-2909 governing interpersonal relationships that
may “erode good order, discipline, respect for authority, unit cohesion and, ultimately, mission
accomplishment.” (Woodmansee Decl., Ex. 8 at 36-2909 ¶ 1.) Because a less intrusive rule
8
The United States military continues to serve effectively alongside the militaries of its
allies, including those which permit gay and lesbian individuals to serve openly. Similarly, U.S.
service members work closely with personnel from other agencies, such as the United States
Central Intelligence Agency, National Security Agency, and Federal Bureau of Investigation, all
of which prohibit discrimination on the basis of sexual orientation. In a 1993 study
commissioned by the Secretary of Defense, RAND reported that U.S. police and fire departments
(domestic analogs to the military) integrated gays and lesbians and witnessed improved
effectiveness and unit cohesion after doing so. (Woodmansee Decl., Ex. 7 at 121-154.)
10
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(that only punishes a service member for engaging in inappropriate conduct with a person in the
service member’s chain of command or immediate unit) already exists, DADT is not necessary
to meet the government’s asserted interest.
Defendants cannot establish that enforcing DADT against Lt. Col. Fehrenbach is
necessary to further their interest. Because the government has not met its burden, Lt. Col.
Fehrenbach is likely to succeed on the merits of his claims.
B. Lt. Col. Fehrenbach Will Succeed on His APA and Procedural Due
Process Claims Because Defendants Denied Him Multiple Procedural
Safeguards Governing the Air Force
The Administrative Procedure Act provides that a court “shall … hold unlawful and set
aside agency action” made “without observance of procedure required by law” or “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. As
the Supreme Court has explained, “[w]here the rights of individuals are affected, it is incumbent
upon agencies to follow their own procedures. This is so even where the internal procedures are
possibly more rigorous than otherwise would be required.” Morton v. Ruiz, 415 U.S. 199, 235
(1974); accord Alcaraz v. INS, 384 F.3d 1150, 1162 (9th Cir. 2004). Military discharge
decisions “are subject to review, and can be judicially held invalid, on the ground that the
Secretary [of the Air Force] has failed to follow his own valid regulations.” Denton v. Secretary
of the Air Force, 483 F.2d 21, 25 (9th Cir. 1973).
The Air Force’s imminent discharge of Lt. Col. Fehrenbach was made in disregard of
procedural safeguards established by statute, regulation, and binding Air Force Instructions.
Defendants’ failure to follow these safeguards warrants setting aside the decision under the APA
and under the Constitution. See Konn v. Laird, 460 F.2d 1318, 1319 (7th Cir. 1972) (where
Army suspended reservist from active duty without following procedural requirements set forth
in Army’s own administrative rules, Army violated reservist’s due process rights).
11
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1. Defendants failed to follow the requirements of AFI 36-3206 for

initiating an inquiry under DADT because they lacked credible
information that there was a basis for discharge
The Air Force Instruction in effect on September 12, 2008, stated that “a commander will
initiate an inquiry only if he or she has credible information that there is a basis for discharge.”
(Woodmansee Decl., Ex. 9 at A2.3.1.) In determining whether information is “credible,” a
commander is to “consider[] its source and the surrounding circumstances.” (Id.) All examples
of “credible information” set forth in the Instruction included the requirement that the
information be from “a reliable person.” (Id. at A2.3.4.) These requirements were clarified and
strengthened in the recent revision of the Instruction (implemented April 2, 2010) that now
defines a “reliable person” as “someone who would be expected, under the circumstances, to
provide accurate information.” (Id. at A2.3.5.) The revised Instruction further states that an
example of an unreliable person is “[a] person with a prior history of untruthfulness or
unreliability.” (Id. at A2.3.5.1.)
The sole source of information the Air Force used to initiate the investigation into
Lt. Col. Fehrenbach’s private sexual conduct did not come from a “reliable person.” The
information was exclusively derived from the statement of an individual whom AFOSI
previously described as “unreliable” and having “a history of false reporting.”9 The BPD lead
investigator also agreed that the civilian was “not a credible witness.” (Feherenbach Decl.,
Ex. 26 at 146:6-7.) Because the civilian was not a “reliable person,” and because he was known
to the Air Force as having a “history of untruthfulness [and] unreliability,” his statements were
9
After interviewing him in a previous, unrelated matter, AFOSI decided not to use the
civilian as a confidential informant. (See Fehrenbach Decl., Ex. 26 at 115:9-12; Woodmansee
Decl. Ex. 10.) Bruce Rolfsen, They asked, he told, but he might get to stay, Military Times (Oct.
24, 2009) (quoting Linda Card, AFOSI’s chief of public affairs), available at
www.militarytimes.com/news/2009/10/airforce_fehrenbach_102109w/)
12
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barred under both then-existing and current Air Force regulations from serving as the basis to
investigate Lt. Col. Fehrenbach’s private life. Absent those statements, no inquiry would have
been initiated and no discharge would have been ordered.
2. The defendants failed to follow procedures mandated under AFI 36-

3206, 10 U.S.C. § 831 and Military Rule of Evidence 305(d), all of
which were required for initiating an inquiry under DADT
The statements resulting from the interrogation of Lt. Col. Fehrenbach were obtained in
violation of the procedures established by Congress and the Air Force. They therefore could not
serve as the basis to discharge him.
Pursuant to the Air Force Instruction in effect on September 12, 2008 (Woodmansee
Decl., Ex. 9 at A2.4.4), Lt. Col. Fehrenbach was entitled to be advised of his “Article 31” rights
prior to his interrogation. Article 31, 10 U.S.C. § 831(b), provides that no person subject to Title
10 “may interrogate, or request any statement from … a person suspected of an offense without
first informing him of the nature of the accusation and advising him that he does not have to
make any statement regarding the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a trial by court-martial.” At no
time, however, did anyone read Lt. Col. Fehrenbach his Article 31 rights. (Fehrenbach Decl.,
Ex. 26 at 144:12-145:9.) Similarly, Lt. Col. Fehrenbach was not advised of his right to consult
counsel and to have military counsel provided (without cost) during his interrogation, as required
by Military Rule of Evidence 305(d). (See id.) To the contrary, Lt. Col. Fehrenbach requested
an attorney prior to and during the interrogation, yet was not provided with one. (Id. ¶15.)
Although the BPD detective asked the questions, he was doing so at AFOSI’s bidding on
Air Force grounds in a unified investigation. Lt. Col. Fehrenbach’s Commanding Officer
escorted him to the interrogation at AFOSI’s offices. (Id. ¶ 10.) Although Lt. Col. Fehrenbach
repeatedly asked the BPD detective about how his cooperation in the investigation would
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implicate his career and whether it would be shared with Air Force authorities, he was never told
that the AFOSI already was involved in the investigation and was observing the interrogation.
(Id. ¶ 16.) Given the military’s integral involvement in the investigation and interrogation of
Lt. Col. Fehrenbach, the interrogation was subject to the requirements of Article 31 and AFI 36-
3206. See United States v. Baird, 851 F.2d 376, 383 (D.C. Cir. 1988) (civilian investigators must
give Article 31 warning when they act as the military’s instrument).10
Lt. Col. Fehrenbach was not able to make a knowing and voluntary decision to waive his
rights under Article 31 and/or the Fifth Amendment because he was not aware of facts that were
in the sole possession of the detective and the defendants, including that his accuser had a history
of false reporting and that the AFOSI was a moving force in the investigation. And, contrary to
Air Force Instructions, he was not “first …advised of the DoD policy on homosexual conduct”
before being asked if he engaged in homosexual conduct. (Woodmansee Decl., Ex. 9 at A2.4.4
(emphasis added).) This combination of factors made his statements involuntary. See Moran v.
Burbine, 475 U.S. 412, 423-424 (1986) (interrogator simply withholding information is “relevant
to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his
ability to understand the nature of his rights and the consequences of abandoning them”). It was
thus arbitrary, capricious and not in accordance with law for the defendants to rely on the
statements in the discharge proceedings. See Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960)
(due process violated by reliance in civil administrative proceeding on involuntary statement).
Moreover, compelled to exonerate himself from false allegations, Lt. Col. Fehrenbach
10
See also U.S. v. Kellam, 2 M.J. 338 (1976) (holding that civilian law enforcement
authorities acting in furtherance of a military investigation or as an instrument of the military
must advise a service member of his Article 31 rights during an interrogation); accord U.S. v.
Grisham, 4 U.S.C.M.A. 694 (1954).
14
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made statements to a civilian law enforcement officer which the Air Force then used to trigger
his discharge. Honest statements made to civilian law enforcement by a service member—the
type of statements that are in the public interest and are consistent with the Air Force’s core
values—should not serve as the basis for discharge.
The numerous violations of the defendants’ own policies surrounding the initiation and
investigation of Lt. Col. Fehrenbach establish that Lt. Col. Fehrenbach is likely to succeed on the
merits of his APA and procedural due process claims.
V. LT. COL. FEHRENBACH WILL SUFFER IRREPARABLE HARM IN THE

ABSENCE OF PRELIMINARY RELIEF
The harm that Lt. Col. Fehrenbach faces, if allowed to occur, could not be fully redressed
by a later decision of this Court.11 These harms include violations of his Constitutional rights
(including equal protection and due process), losing the privilege of serving his country during a
time of war, and the stigma of being involuntarily separated from the armed forces. These harms
are imminent. Without the intervention of this Court, the AFPB has recommended that he be
discharged. See McVeigh v. Cohen, 983 F. Supp. 215, 221 (D.D.C. 1998).
A. Lt. Col. Fehrenbach Will Suffer Violations of his Constitutional Rights,

Which Cannot Later Be Remedied, If the Air Force is Not Enjoined
Lt. Col. Fehrenbach will suffer irreparable harm—namely, violations of his
Constitutional rights—as a result of his pending discharge. The Ninth Circuit has recognized
that an alleged constitutional infringement, by itself, can constitute irreparable harm. Monterey
Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). District courts across the country have
11
In order to prevail on a request for temporary or preliminary injunctive relief, a movant
must show that he is likely to suffer harm that does not have an adequate remedy at law. N. Cal.
Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306 (1984). Harm that is definite,
but difficult to measure or calculate, is irreparable by its very nature. See Gilder v. PGA Tour,
Inc., 936 F.2d 417, 423 (9th Cir. 1991).
15
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preliminarily enjoined the discharge of service members that would have resulted in violations of
their constitutional rights. See, e.g., Elzie v. Aspin, 841 F. Supp. 439, 443 (D. D.C. 1993)
(issuing injunction after finding that a gay Marine who was being discharged would suffer
irreparable harm); Cooney v. Dalton, 877 F. Supp. 508, 510, 513 (D. Haw. 1995) (entering
injunction and recognizing that military cannot discharge a service member in violation of due
process); May v. Gray, 708 F. Supp. 716, 721-22 (E.D. N.C. 1988) (“due process does require
that if the secretary…prescribes certain regulations under which Army personnel can be
discharged, those regulations must be complied with”).
Lt. Col. Fehrenbach faces imminent dismissal even though the Air Force failed to meet
the substantive requirements of Witt and failed to follow required procedures set forth in military
regulations governing DADT.
B. Due to the Special Privilege of Being Able to Serve the Country and the
Nature of Lt. Col. Fehrenbach’s Role in the United States Air Force, the
Harm of Discharge is Far Greater than the Average Employment Case
Lt. Col. Fehrenbach does not just work for the United States Air Force; he is a proud
service member. Lt. Col. Fehrenbach attended the University of Notre Dame on an Air Force
ROTC scholarship, and realized his life’s dream when he was commissioned as an Air Force
officer. He considers it an honor to have served his country for the past eighteen years.
(Fehrenbach Decl. ¶¶ 1-5.)
While it is true that one does not have a Constitutional right to serve in the armed forces,
courts have recognized that service members have some rights associated with continued
employment. See May, 708 F. Supp. at 724. Discharging Lt. Col. Fehrenbach from his duties
and depriving him of this honor will cause him unquantifiable harm. Monetary damages cannot
adequately compensate Lt. Col. Fehrenbach for losing the privilege of serving his country,
particularly when that privilege is about to be denied him based on violations of his
16
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constitutional rights. Moreover, Lt. Col. Fehrenbach has a highly specialized set of skills as an
F-15E Weapons’ Systems Officer that cannot be fully utilized anywhere in the civilian world.
See Chalk v. United States, 840 F.2d 701, 709 (9th Cir. 1988).
C. Should Lt. Col. Fehrenbach be Discharged, He Will Suffer From a Stigma

that Constitutes Irreparable Harm
Courts have held that the “stigma” of being discharged for violating military policies and
regulations provides sufficient irreparable harm to warrant injunctive relief. See McVeigh, 983
F. Supp. at 221; Elzie, 841 F. Supp. at 443. In May, the court acknowledged the stigma of being
involuntarily discharged from the military and wrote: “The truth of the matter is that military
separation codes are known, understood and available to the part of society that count -- i.e.,
prospective employers…The court concludes that the stigma which will attach to plaintiff's
record if the separation is completed implicates plaintiff's liberty interests.” 708 F. Supp. at 722
(internal citations omitted). This logic applies equally to Lt. Col. Fehrenbach. (See Fehrenbach
Decl. ¶¶ 24-26.) If the Air Force is allowed to discharge Lt. Col. Fehrenbach without regard for
its own regulations and his constitutional rights, the circumstances of his separation will taint
him indefinitely, including in his search for civilian employment. (Id.) Moreover, the McVeigh
court wrote:
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 sought.
Id. The same rationale applies equally to Lt. Col. Fehrenbach.
VI. THE BALANCE OF HARDSHIPS TIPS SHARPLY IN

LT. COL. FEHRENBACH’S FAVOR
When faced with a request for injunctive relief, courts must “balance the competing
claims of injury and must consider the effect on each party of the granting or withholding of the
17
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requested relief.” Winter, 129 S. Ct. at 376 (citation omitted). Lt. Col. Fehrenbach has served
for more than one year since the BOI recommended his discharge, yet there is no evidence that
his continued presence poses any hardship to the Air Force. The cost to Lt. Col. Fehrenbach,
should he be discharged, is far more extreme.
Faced with similar situations, several district courts have recognized that the balance of
hardships tips toward service members who face imminent discharge under DADT. The United
States District Court for the District of Columbia recognized in McVeigh, “the Navy will only be
enhanced by being able to retain the Plaintiff’s seventeen years of service experience.” 983
F. Supp. at 221.
Like anyone who has been fired from his or her job, Lt. Col. Fehrenbach will suffer great
stigma. The degree of that stigma will be enhanced in his case because the basis for his
involuntary discharge involves alleged violations of Air Force regulations. Any claim by the Air
Force of “hardship” is belied by the fact that Lt. Col. Fehrenbach continues to serve on active
duty—nearly two years since discharge proceedings commenced and more than one year since
the BOI recommended that he be discharged—and continues to receive stellar reviews.
Lt. Col. Fehrenbach has raised a number of serious issues regarding the legal
insufficiency of the investigation against him and defendants’ efforts to tread upon his
constitutional rights, including those recognized by the Ninth Circuit in Witt. In light of these
issues, the balance of hardships tips sharply in favor of Lt. Col. Fehrenbach.
VII. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

ARE IN THE PUBLIC INTEREST
The requested TRO serves the public interest in numerous important ways. Preventing
the Air Force from discharging Lt. Col. Fehrenbach until the Court can rule on Lt. Col.
Fehrenbach’s motion for a preliminary injunction would, among other things: (1) strengthen
18
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public confidence in the military and the rule of law, (2) prevent unnecessary costs to the public,
and (3) safeguard national security interests.
A. Holding the Military Accountable to its Own Regulations

and the Constitution Strengthens the Public’s Trust in the Military
The public has “a strong interest in having a military that conducts itself fairly and
according to its stated regulations and policies.” Cooney, 877 F. Supp. at 515
(granting injunction and noting that when “the military misapplies its own rules and unfairly
discharges and stigmatizes a serviceman without giving him the constitutional consideration he is
due, this erodes trust in the military”). The public also has an interest in having a military that
conducts itself in accordance with the Constitution. See, e.g., McVeigh, 983 F. Supp. at 221-22.
The Air Force failed to apply its own regulations by wrongly investigating Lt. Col. Fehrenbach’s
private life based on non-credible information that the Air Force knew was from an unreliable
source, and then discharged him in violation of substantive and procedural due process
constitutional guarantees. Restraining the defendants from discharging Lt. Col. Fehrenbach until
his case can be heard thus supports the public interest by increasing trust in the military.
B. Preventing the Discharge of Lt. Col. Fehrenbach Would Prevent

Unnecessary Costs to the Public
The Air Force has spent millions of dollars to train Lt. Col. Fehrenbach over nearly
nineteen years, and the public is entitled to enjoy its return on that investment. According to
estimates, Navigator and WSO training is valued at $2 million and F-15E FTU training is valued
at $2.5 million. Lt. Col. Fehrenbach has accrued more than 1,200 total flight training hours in
the F-15E (estimated to cost $13,500 per hour) at a cost of more than $15.6 million. (Fehrenbach
Decl., Ex. 26 at 176:20-178:3.) That training alone totals more than $20 million. More
importantly, the value of his actual combat experience cannot be measured, and it can scarcely
be replaced. Lt. Col. Fehrenbach cannot estimate the exact costs because the information
19
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necessary to make this evaluation is exclusively within the knowledge of the Air Force.
Preventing the premature discharge of Lt. Col. Fehrenbach would ensure that the United States
enjoys the benefits of those substantial expenditures.
C. Preventing the Discharge of Lt. Col. Fehrenbach Advances

National Security Interests
The public is harmed by a reduction in military capability whenever the military
separates distinguished officers like Lt. Col. Fehrenbach from its ranks for a reason completely
unrelated to his ability to defend and protect the country. See Elzie, 841 F. Supp. at 443-44 (“to
deprive our armed forces of the intellectual and physical prowess of some extraordinarily
talented individuals strictly because of their sexual orientation would be doing a great disservice
to this nation”). The Commander-in-Chief of the armed forces, President Obama, echoed this
sentiment in remarks at the White House on June 29, 2009 stating, “I believe ‘Don’t Ask, Don’t
Tell’ doesn’t contribute to our national security. In fact, I believe preventing patriotic Americans
from serving their country weakens our national security.” (Woodmansee Decl., Ex. 11 at 2.)
Lt. Col. Fehrenbach is a true war hero, and one of the Air Force’s top Weapons Systems
Officers. The discharge of a skilled and experienced patriot like Lt. Col. Fehrenbach not only
directly harms military capability, but also does so indirectly by contributing to the military’s
current personnel shortage problems related to recruitment and retention. (See Fehrenbach Decl.,
Ex. 26 at 171:1-6; 176:6-19; 184:8-185:3.) Enjoining Lt. Col. Fehrenbach’s imminent discharge
under DADT therefore serves the public interest during our current time of war.
VIII. CONCLUSION
For the reasons above, Lt. Col. Fehrenbach respectfully requests that the Court grant his
Application for a Temporary Restraining Order, and requests that the Court set a briefing
schedule and hearing date for his request for a preliminary injunction.
20
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Dated: _8/11/2010______________ MORRISON & FOERSTER LLP
By: /s/ M. Andrew Woodmansee

M. ANDREW WOODMANSEE

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jroberts@mofo.com
Telephone: 858.720.5100
Facsimile: 858.720.5125

adt@sldn.org
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SERVICEMEMBERS LEGAL DEFENSE
NETWORK
P.O. Box 65301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635

LIEUTENANT COLONEL
21
sd-518610

afields@mofo.com
jcekola@mofo.com
jroberts@mofo.com
Telephone: 858.720.5100
Facsimile: 858.720.5125

adt@sldn.org
jgoodman@sldn.org
P.O. Box 65301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635


DISTRICT OF IDAHO

FEHRENBACH,
Plaintiff, DECLARATION OF M. ANDREW

WOODMANSEE IN SUPPORT OF
v. APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND
DEPARTMENT OF THE AIR FORCE; PRELIMINARY INJUNCTION
Commander, COL. RONALD BUCKLEY,
366th Fighter Wing Commander,
Defendants.
1
sd-522834
I, M. Andrew Woodmansee, declare:
1. I am a member in good standing of the state bar of California and am a partner
with the law firm of Morrison & Foerster LLP, which represents Plaintiff Lieutenant Colonel
Victor J. Fehrenbach in this action. I have personal knowledge of the facts stated herein and, if
called as a witness, I could and would testify competently as to them.
2. Attached hereto as Exhibit 1 is a true and correct copy of the Ruling on Motion
For Declaratory Judgment, dated February 9, 2009 from the matter of the United States v.
Lieutenant Colonel Victor J. Fehrenbach.
3. Attached hereto as Exhibit 2 is a true and correct copy of a news transcript titled,
“DOD News Briefing with Secretary Gates and Adm. Mullen from the Pentagon” dated March
25, 2010.
4. Attached hereto as Exhibit 3 is a true and correct excerpt of the Summary of
Changes Revisions to the “Don’t Ask, Don’t Tell” regulations, prepared by the Office of the
Secretary of Defense.
5. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the
Department of Defense Authorization For Appropriations For Fiscal Year 2011, And To Receive
Testimony Relating To The “Don’t Ask, Don’t Tell” Policy, dated February 2, 2010.
6. Attached hereto as Exhibit 5 is a true and correct copy of an article written by Om
Prakash titled The Efficacy of “Don’t Ask, Don’t Tell”, JFQ, 4th Quarter 2009, issue 55.
7. Attached hereto as Exhibit 6 is a true and correct copy of excerpts from the
Hearing To Receive Testimony Relating To The “Don’t Ask, Don’t Tell” Policy, dated March
18, 2010.
2
sd-522834
8. Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the report
titled Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment,
published by RAND (1993).
9. Attached hereto as Exhibit 8 is a true and correct copy of the Air Force Instruction
36-2909 (“AFI 36-2909”), dated May 1, 1999.
10. Attached hereto as Exhibit 9 is a true and correct copy of the Air Force Instruction
36-3206 (“AFI 36-3206”), dated June 9, 2004.
11. Attached hereto as Exhibit 10 is a true and correct copy of the news article written
by Bruce Rolfsen titled, “They asked, he told, but he might get to stay” MilitaryTimes (Oct. 24,
2009).
12. Attached hereto as Exhibit 11 is a true and correct copy of a transcript titled,
“Remarks By The President At LGBT Pride Month Reception”, dated June 29, 2009.
13. On August 4, 2010, I received an email from the Honorable Charles A.
Blanchard, General Counsel to the Secretary of the Air Force. A true and correct copy of that
email chain is attached hereto as Exhibit 12. In that email, Mr. Blanchard confirmed that the Air
Force Personnel Board had met and made a recommendation to the Secretary’s designated
separation authority in this case (the MRB). Notwithstanding Mr. Blanchard’s statements to the
contrary, Air Force regulations clearly state that, had the AFPB concluded that Lt. Col.
Fehrenbach should be retained, no action by the Secretary or the MRB would be required. AFI
36-3206 Chapter 6.10 (“When the AFPB recommends retaining the respondent, HQ
///
///
///
3
sd-522834
AFPC/DPRS advises the respondent, through the SeA, that the AFPB's determination ends the
action."); and Chapter 6.10.1 ("When the AFPB recommends removal from active duty,
discharge, or other action, the AFPB sends the case to the SAF.")
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct and that this declaration was executed on August 10, 2010, in San
Diego, California.
ODMANSEE

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Telephone: 858.720.5100
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jgoodman@sldn.org
P.O. Box 65301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635


DISTRICT OF IDAHO

FEHRENBACH,
DECLARATION OF LIEUTENANT
Plaintiff, COLONEL VICTOR J. FEHRENBACH IN
SUPPORT OF HIS APPLICATION FOR
v. TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Commander; and COL. RONALD
Defendants.
sd-518235
I, Victor J. Fehrenbach, declare:
1. I am a citizen of the United States and I currently reside in Boise, Idaho. I am
stationed at Mountain Home Air Force Base in Mountain Home, Idaho.
2. I am honored to serve the United States as a Lieutenant Colonel in the United
States Air Force. I am currently an active duty Air Force officer assigned as Assistant Director
of Operations in the 366th Operations Support Squadron.
3. I am trained, and have primarily served, as a Fighter Weapons Systems Officer,
flying the F-15E Strike Eagle, the Air Force’s most advanced ground attack strike fighter which
has played an important role in operations in Iraq and Afghanistan.
4. From an early age, I knew that I wanted to join the United States Air Force. My
father retired as a Lieutenant Colonel in the Air Force. In fact, I was born on a United States Air
Force Base. For me, serving in the Air Force is not just a job. It has been my calling and is my
“way of life.” I attended the University of Notre Dame in South Bend, Indiana on a four-year
Air Force Reserve Officers Training Corps (“ROTC”) scholarship.
5. After graduating from the University of Notre Dame, I entered active duty service
in September 1991. Consequently, this year marks my nineteenth year as an active duty officer
in the United States Air Force.
6. During my nearly 19-year career, I have deployed to major combat operations six
times.
7. My performance as an officer in the United States Air Force has consistently
earned me high praise and stellar reviews. True and correct copies of my performance reviews
during my career and a draft promotion recommendation from 2008 are attached hereto as
Exhibits 1 through 15.
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8. As an Air Force Officer, I have had many distinctions bestowed upon me. My
service has earned me one Meritorious Service Medal, nine Air Medals, five Commendation
Medals, one Navy and Marine Corps Commendation Medal, and several other Combat
Campaign and Achievement Medals. True and correct copies of the citations accompanying
those medals are attached hereto as Exhibits 16 through 23.
9. The United States Air Force awarded me one of my nine Air Medals in 2003 for
heroism while participating in aerial flight and destroying enemy ambush targets under heavy
enemy fire during Operation IRAQI FREEDOM. A true and correct copy of the 2003 USAF Air
Medal for heroism is attached hereto as Exhibit 24.
10. On May 16, 2008, my Commanding Officer ordered me to accompany him to the
Air Force Office of Special Investigations (“AFOSI”) at Mountain Home Air Force Base without
telling me the purpose of the visit. During the trip to the AFOSI headquarters, I asked my
Commander whether I was being accused or investigated for anything, and that if I was, I wanted
to consult a lawyer first and have a lawyer present for questioning. Despite that request, my
Commander declined to state the purpose of the meeting and issued a direct order, requiring me
to accompany him to AFOSI headquarters. He brought me directly to AFOSI headquarters.
11. At that time, I did not know that AFOSI agents had requested that a Boise Police
Department (“BDP”) detective come to AFOSI’s office to interrogate me about my private life. I
later learned that the AFOSI and the BDP had initiated an investigation of me based on a false
claim of sexual assault by a male civilian.
12. No criminal charges were ever pressed against me by the Ada County District
Attorney or AFOSI, but the BDP detective intruded into my private life by asking me questions
about my sexual history that were irrelevant to the alleged encounter with the civilian.
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13. I later found out that the civilian in question had made the false allegations against
me after we engaged in consensual sexual relations at my private off-base residence on May 12,
2008.
14. Neither before, nor during, my interrogation did anyone read to me my rights
Under Article 31 of the Uniform Code of Military Justice (“Article 31”). Prior to being
interrogated, I was not advised of the Department of Defense policy on homosexual conduct, and
I was not told that I was being investigated under “Don’t Ask, Don’t Tell.”
15. Although I requested an attorney at least twice before the actual questioning
commenced, my requests were ignored.
16. I did not know that the interrogation was being observed by AFOSI agents, and I
also did not know that the interrogation was being recorded by the detective and that he later
would provide a copy of the recording to the AFOSI.
17. On September 12, 2008, I received an Air Force Memorandum from Lieutenant
General Norman Seip, (former) Twelfth Air Force Commander, indicating that Lt. Gen. Seip had
initiated administrative discharge proceedings against me for engaging in “homosexual conduct”
at or near Boise, Idaho, on or about May 12, 2008. A true and correct copy of the September 12,
2008 Memorandum from Lt. Gen. Seip is attached hereto as Exhibit 25.
18. Following this Memorandum, Lt. Gen. Seip ordered on December 8, 2008, that a
Board of Inquiry (“BOI”) be convened in order to make recommendations as to whether I should
be retained on active duty.
19. An administrative BOI convened on April 14 and 15, 2009 to consider whether I
should be retained on active duty. During voir dire, four out of the five members of this BOI
acknowledged having “moral or religious convictions” that made them believe that “homosexual
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conduct is wrong.” Nonetheless, those members were seated on the Board hearing my case.
During the Board proceedings, the Air Force did not produce any evidence whatsoever to
support the claim that my continued service would be detrimental to good order and discipline,
morale, and unit cohesion. Despite this lack of evidence and despite the fact that no one in my
squadron or on my base (with the exception of my chain of command, legal, and AFOSI
personnel) knew of the nature of the charges against me, the members of the Board made a
finding that my continued service would be detrimental to good order and discipline, morale, and
unit cohesion. On April 15, 2009, the members of this BOI recommended that I be discharged
from the military. True and correct copies of relevant excerpts from the BOI hearing transcript
are attached hereto as Exhibit 26.
20. Since that time, I have continued to serve on active duty and I report for daily
work at the Mountain Home Air Force Base. My colleagues have remained professional and
respectful towards me, and I have continued to receive high ratings on my performance reviews.
A true and correct copy of my latest performance review is attached hereto as Exhibit 14.
21. However, on August 4, 2010, my counsel was informed that the Air Force
Personnel Board (AFPB) had met and made a recommendation to Secretary Donley’s designee,
Mr. Joe Lineberger. Pursuant to Air Force regulations, a recommendation by the AFPB that I
should be retained would not need to go to the Secretary or his designee.
22. I do not wish to be discharged from the Air Force. I am willing and able to
continue serving with the same high standards at which I have always performed.
23. If I am discharged, I will not earn a retirement pension. In addition to the
financial loss to me, this may negatively affect my ability to obtain future employment. I have
nearly 19 years of military service, but 20 years are required to receive a retirement pension with
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full medical benefits from the Department of Veterans Affairs (VA). Since I will not have these
medical benefits if I am involuntarily discharged short of 20 years, a potential employer might
not consider me for a position knowing that they could hire a retired officer with similar
qualifications who reached his or her 20-year mark. The employer could realize significant cost
savings by hiring another candidate to whom the employer would not need to offer medical
benefits.
24. If I am discharged, I will be stigmatized by what the military writes in my official
discharge papers (Defense Department Form 214, “DD 214”). The military will write a
separation code on my DD 214 indicating the reason for my discharge, thus announcing to
anyone who reads my DD 214 that I am unfit to serve in the military because I allegedly violated
Air Force regulations. The military will also write a negative reenlistment code on my DD 214,
indicating that I am banned from ever again serving in the military in any capacity. Based on my
nearly 19 years in the Air Force, I understand that, among members of the military and former
military personnel, such negative reenlistment codes are often associated with bad conduct.
///
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25. Most potential employers will read my DD 214. The separation and reentry
codes, and the narrative reason for separation on the DD 214, could negatively affect my
employment prospects because after reading my discharge papers an employer may discriminate
against me, falsely believe the military that I am unfit to serve. I also understand that some
employers may have reservations or outright bans about hiring someone with a negative reentry
code. In all cases, I will be forced to explain the reason for my involuntary separation from the
military after nearly 19 years.
26. By discharging me and writing into my DD 214 the negative reentry code and
false label that I am unfit to serve, the military would also inflict a serious personal insult on me
given that I have been an exemplary officer for nearly 19 years and am willing and able to
continue serving in the Air Force with the same high standards at which I have always
performed. That is something I will carry with me for the rest of my life.
I declare under penalty ofperjury under the laws of the United States of America and the
state ofIdaho that the foregoing is true and correct. Executed this 10th day of August, 2010, at
Chicago,Illinois. ~
Vict r J. Fehrenbach
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pi •

AFields@mofo.com
JCekola@mofo.com
JRoberts@mofo.com
Telephone: 858.720.5100
Facsimile: 858.720.5125

adt@sldn.org
JGoodman@sldn.org
P.O. Box 65301
Telephone: 202.328.3244 ext. 10
Facsimile: 202.797.1635


DISTRICT OF IDAHO

FEHRENBACH,
Plaintiff, CERTIFICATE OF SERVICE
v.

Commander, COL. RONALD BUCKLEY,
366th Fighter Wing Commander,
Defendants.
1
sd-527815
CERTIFICATE OF SERVICE
I hereby certify that on August 11, 2010, a copy of the following documents:
APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

INJUNCTION;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION

FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION;
DECLARATION OF LIEUTENANT COLONEL VICTOR J. FEHRENBACH IN

SUPPORT OF HIS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION; and
DECLARATION OF M. ANDREW WOODMANSEE IN SUPPORT OF APPLICATION

FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
which was filed in this matter, was mailed, with first class postage prepaid, certified, return
receipt requested, to all parties listed below or on the attached mailing matrix:
Dr. Robert M. Gates

Secretary of Defense
1000 Defense Pentagon
Washington, D.C. 20301-1000
Honorable Michael B. Donley

Secretary of the Air Force
1660 Air Force Pentagon
Lieutenant General Glenn F. Spears

Commander of the Twelfth Air Force
Davis—Monthan AFB, AZ 85707
Colonel Ronald D. Buckley

Commander of the 366th Fighter Wing
Mountain Home AFB, ID 83648
Department of Air Force

c/o Major General Nolan Skulte — Chief, General Litigation Division
Office of the Judge Advocate General
1660 Air Force Pentagon
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sd-527815
U.S. Attorney
U.S. Department of Justice
District of Idaho
550 West Fort Street, Room 400
Boise, ID 83724
ALSO SERVED VIA HAND-DELIVERY ON 8/11/10
Eric Holder
Attorney General of the United States
Office of the Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
/s/ M. Andrew Woodmansee

M. Andrew Woodmansee

LIEUTENANT COLONEL
3
sd-527815

LT Col. Fehrenbach's TRO To Prevent DADT Discharge and Memo.

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Case 1:10-cv-00402-EJL Document 2 Filed 08/11/10 Page 1 of 3

M. ANDREW WOODMANSEE (CA SBN 201780)

AARON D. TAX (DC SBN 501597)

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

LIEUTENANT COLONEL VICTOR J. Case No.

Plaintiff, APPLICATION FOR TEMPORARY

as this matter may be heard.

arguments as may be presented in this matter.

Dated: ________8/11/2010_______ MORRISON & FOERSTER LLP

By: /s/ M. Andrew Woodmansee

M. ANDREW WOODMANSEE (CA SBN 201780)

AARON D. TAX (DC SBN 501597)

Attorneys for Plaintiff

M. ANDREW WOODMANSEE (CA SBN 201780)

AARON D. TAX (DC SBN 501597)

Attorneys for Plaintiff

LIEUTENANT COLONEL VICTOR J. Case No.

V. LT. COL. FEHRENBACH WILL SUFFER IRREPARABLE HARM IN THE

Affiliates, Inc. v. Armstrong,

Chalk v. United States,

Denton v. Secretary of the Air Force,

Gilder v. PGA Tour, Inc.,

Granny Goose Foods, Inc. v. Brotherhood of Teamsters,

L.A. Mem’l Coliseum Comm’n v. Nat’l. Football League,

Monterey Mech. Co. v. Wilson,

N. Cal. Power Agency v. Grace Geothermal Corp.,

United States v. Baird,

Winter v. Natural Res. Def. Council, Inc.,

Witt v. Department of the Air Force,

10 U.S.C. § 654 ...................................................................................................................... 1, 7

10 U.S.C. § 831 ...........................................................................................................3, 4, 13, 14

Federal Rule of Civil Procedure 65......................................................................................... 2, 5

Military Rule of Evidence 305(d) ........................................................................................13, 14

The United States is currently engaged in a multi-front war, simultaneously fighting in

and excellence at building morale and cohesion.

II. STATEMENT OF FACTS

A. Lt. Col. Fehrenbach’s Outstanding Record of Service

Fehrenbach in Support of Application for Temporary Restraining Order and Preliminary

Injunction (“Fehrenbach Decl.”) ¶¶ 1, 8-9.) He is a trained Fighter Weapons Systems Officer,

IRAQI FREEDOM. (Id. ¶ 9.)

outstanding service. (See id., Exs. 16-24.)

B. The Air Force Investigates Lt. Col. Fehrenbach’s Private Life

been summoned to AFOSI headquarters. (Id., Ex. 26 at 172:12-19.) Unbeknownst to

the “DoD policy on homosexual conduct”, as required by AFI 36-3206. Although

Lt. Col. Fehrenbach. (Id. at 120:12-16.)

C. Separation Proceedings by the Board of Inquiry

M. Drew Woodmansee in Support of Application for Temporary Restraining Order and

D. Recent Changes to the DADT Instruction

On April 2, 2010, the Air Force distributed a Guidance Memorandum announcing

immediate changes to AFI 36-3206 (“Revised Instruction”). The Revised Instruction

motivated to harm the service member.”4

E. Imminent Discharge of Lt. Col. Fehrenbach

III. LEGAL STANDARD

restraining order is identical to the standard for issuing a preliminary injunction”).

IV. LT. COL. FEHRENBACH WILL SUCCEED ON THE MERITS

discharge under DADT is constitutional only if it survives a heightened scrutiny analysis as

burden, an injunction is warranted.

1. Although the interest proffered by the government may be important,

2. The Air Force did not—and cannot—establish that discharging Lt.

cohesion. Witt, 527 F.3d at 819.

a. Lt. Col. Fehrenbach’s outstanding service in the Air Force

Fehrenbach works without detriment to the Air Force. (Id. ¶ 20.)

Dated: __8/11/2010_ MORRISON & FOERSTER LLP