Petition for Writ of Certiorari — McSally v. Rumsfeld

Supreme Court of the Write Sitertes ;

MARTHA MCSALLY, LT. COL.,

et babe tic Petitioner,

—_—_ Y.—_—_

DONALD H. RUMSFELD,

SECRETARY OF DEFENSE,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Thomas S. Neuberger Randall M. Shaheen

Stephen J. Neuberger ARNOLD & PORTER

THE NEUBERGER FIRM 555 Twelfth Street, N.W.

Two East Seventh Street Washington, DC 20004

Suite 302 (202) 942-5734

Wilmington, DE 19801

(302) 655-0582 John W. Whitehead

THE RUTHERFORD INSTITUTE

Cousel of Record for 1440 Sachem Place

Petitioner Charlottesville, VA 22906

~~ (434) 978-3888

Co-Counsel for Petitioner

pe seein eee rere ee al

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTION PRESENTED

May a plaintiff in a §1983 civil rights action challenging a

military policy that required servicewomen to wear an

abaya, an Islamic religious head covering, as a violation of

servicewomen’s religious freedom, recover reasonable

attorneys’ fees and costs pursuant to 42 U.S.C. §1988, where,

as a direct result of plaintiff's lawsuit, Congress enacted

legislation forcing an otherwise unyielding executive agency

to involuntarily revoke an illegal policy?

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PARTIES TO THE PROCEEDINGS

All parties to the proceedings before the United

States Court of Appeals for the District of Columbia Circuit

and the United States District Court for the District of

Columbia are listed in the caption to this Petition.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS

STATEMENT OF JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

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APPENDIX

TABLE OF AUTHORITIES

- CASES

Barrios v. Cal. Interscholastic Federation,

277 F.3d 1128 (9th Cir. 2002)

Buckhannon Board and Care Home, Inc. v. West Virginia

Department of Health and Human Resources,

932 U.S. 598 (2001)

Hanrahan v. Hampton, 446 U.S. 754 (1980)

McSally v. Rumsfeld,

_ 2005 U.S. App. LEXIS 5679 (D.C. Cir. April 8, 2005)

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968)

Oil, Chemical and Atomic Workers Union v.

Department of Energy, 288 F.3d 452 (D.C. Cir. 2002)

Palmetto Properties, Inc. v. County of Dupage,

375 F.3d 542 (7th Cir. 2004)

Roberson v. Giuliani, 346 F.3d 75 (2nd Cir. 2003)

Smalbein v. City of Daytona Beach,

353 F.3d 901 (11th Cir. 2003)

Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002)

Truesdell v. Philadelphia Housing Authonity,

290 F.3d 159 (3d Cir. 2002)

Tyler v. O'Neil, 2004 WL. 2297148 (3rd Cir. 2004)

42 U.S.C. §1988

28 U.S.C. § 1254(1)

HR 4714

H. R. Rep. 94-1558

Joint Defense Authorization Bill, H.R. 4546

S. Rep. 94-1011 (1976)

The National Defense Authorization Act for Fiscal

Year 2003, Pub. L. No. 107-314, § 563

(Dec. 2, 2002) 2, 20, 23, 29

OPINIONS BELOW

The judgment for which review is sought is reported

in electronic form as McSally v. Rumsfeld, 2005 U.S. App.

LEXIS 5679 (D.C. Cir. April 8, 2005), and is set forth in the

Apperidix beginning at A-1. The judgment of the United

States District Court for the District of Columbia is not

reported and is set forth in the Appendix beginning at A-3.

STATEMENT OF JURISDICTION

The judgment and opinion of the United States

District Court for the District of Columbia, which is the

subject of the instant Petition, was entered on April 8, 2005.

This Court has jurisdiction to review that judgment

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. § 1988 (1976) provides in its relevant part:

(b) ATTORNEY'S FEES- In any action or

proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and

1986 of this title, title IX of Public Law 92-

318 [20 US.C.A. § 1681 et seq], the

Religious Freedom Restoration Act of 1993

[42 US.C.A. § 2000bb et seq.], the Religious

Land Use and Institutionalized Persons Act

of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI

of the Civil Rights Act of 1964 [42 U.S.C.A. §

2000d et seq.], or section 13981 of this title,

the court, in its discretion, may allow the

prevailing party, other than the United

States, a reasonable attorney's fee as part of

the costs, except that in any action brought

against a judicial officer for an act or

omission taken in such officer's judicial

capacity such officer shall not be held liable

for any costs, including attorney's fees,

unless such action was clearly in excess of

such officer's jurisdiction.

The National Defense Authorization Act for Fiscal

Year 2003, Pub.L. No. 107-314, § 563 (Dec. 2, 2002) provides:

WEAR OF ABAYAS BY FEMALE

MEMBERS OF THE ARMED FORCES IN

SAUDI ARABIA

(a) PROHIBITION RELATING TO WEAR

OF ABAYAS- No member of the Armed

Forces having authority over a member of

the Armed Forces and no officer or

employee of the United States having

authority over a member of the Armed

Forces may require or encourage that

member to wear the abaya garment or any

part of the abaya garment while the

member is in the Kingdom of Saudi Arabia

pursuant to a permanent change of station

or orders for temporary duty.

(b) INSTRUCTION- (1) The Secretary of

Defense shall provide each female member

of the Armed Forces ordered to a

permanent change of station or temporary

_ duty in the Kingdom of Saudi Arabia with

instruction regarding the prohibition in

subsection (a). Such instruction shall be

provided immediately upon or not more

than 48 hours prior to the arrival of the

member at a United States military

installation within the Kingdom of Saudi

Arabia. The instruction shall be presented

orally and in writing. The written

instruction shall include the full text of this

section. (2) In carrying out paragraph (1),

the Secretary shall act through the

Commander in Chief, United States Central

Command and Joint Task Force Southwest

Asia, and the commanders of the Army,

Navy, Air Force, and Marine Corps

components of the United States Central

Command and Joint Task Force Southwest

Asia.

(c) PROHIBITION ON USE OF FUNDS

FOR PROCUREMENT OF ABAYAS- Funds

appropriated or otherwise made available ~

to the Department of Defense may not be

used to procure abayas for regular or

routine issuance to members of the Armed

Forces serving in the Kingdom of Saudi

Arabia or for any personnel of contractors

accompanying the Armed Forces in the

Kingdom of Saudi Arabia in the

performance of contracts entered into by the

United States with such contractors

STATEMENT OF THE CASE

This petition presents a novel question of exceptional

importance arising from the Supreme Court's holding in

Buckhannon Board and Care Home, Inc. v. West Virginia

Department of Health and Human Resources, 532 US. 598

(2001): whether a plaintiff in a §1983 civil rights action can

recover reasonable attorney's fees and costs pursuant to 42

U.S.C. §1988, where as a direct result of plaintiff's lawsuit,

Congress drafted and passed legislation, forcing an

otherwise unyielding executive agency to involuntarily

revoke an illegal policy?

The District Court reluctantly answered no and

professed itself bound by this Court's ruling in Buckhannon

(A-4). The United States Court of Appeais for the District of

Columbia Circuit summarily affirmed that decision (A-1),

and in io doing disregarded the purpose and overarching

aims of Buckhannon. The Court of Appeals instead applied

an interpretation of Buckhannon of unprecedented breadth,

imposing a rule born of a factually specific circumstance to

the case at bar which is wholly distinguishable on the facts.

As a result, the Court of Appeals inappropriately applied

Buckhannon’s bar on the award of attorney’s fees to plaintiffs

whose claims for fees arise under the “catalyst theory”! to a

plaintiff whose claim does not.

' The “catalyst theory” has historically been used to provide relief under

The Civil Rights Attorney's Fees Award Act of 1976 and is based on the

argument that the plaintiff is a “prevailing party” if it achieves a

voluntary change in the defendant's behavior. See Buckhannon, 532 US. at

601. This theory was contemplated by Congress during the drafting of

the Act, but has since been overruled by the Supreme Court. See H.R

Rep. 94-1558, at 7 (stating:

A ‘prevailing’ party should not be penalized for seeking

an out-of-court settlement, thus helping to lessen

docket congestion. Similarly, after a complaint is filed,

a defendant might voluntarily cease the unlawful

practice. A court should still award fees even though it

might conclude, as a matter of equity, that no formal

relief; such as an injunction, is needed.

(emphasis added) (citations omitted)); but see Buckhannon, 532

US. at 600 (holding that a plaintiff who has not secured

Lt. Col. McSally’s claim is distinguishable from the

claim in Buckhannon for a number of reasons. First, the

Department of Defense (“DoD”) did not change its own

policy. On the contrary, the DoD fought for seven years to

maintain the policy, despite the policy’s obvious

infringement on First Amendment free speech and blatant

gender discrimination. Second, Lt. Col. McSally’s case was

rendered moot by a third party, not by the defendant.

Third, whereas in Buckhannon the change in defendant's

behavior was voluntary (i.e., the West Virginia legislature

willingly altered its own flawed law), in this case, the

United States Congress intervened to bring an end to the

DoD’s unconstitutional policies, a full seven years after the

DoD first ignored Lt. Col. McSally’s pleas. These

distinguishing facts, inter alia, clearly remove McSally v.

Rumsfeld from the narrow confines of Buckhannon.

The D.C. Circuit Court of Appeals has not been alone

in its misinterpretation of Buckiannon. There is discord

among the circuits regarding the appropriate interpretation

and application of Buckhannon. See Palmetto Props., Inc. v.

County of Dupage, 375 F.3d 542, 551 (7% Cir. 2004) (plaintiff

was entitled to attorney’s fees where no final judgment

entered because county involuntarily changed its policy

after adverse ruling on a summary judgment motion); Tyler

v. O'Neil, 2004 WL 2297148 (3rd Cir. 2004) (defining

“prevailing party” to apply to a plaintiff when “some of the

benefit sought” by the litigation is achieved whether

judicially obtained or not); Smalbein v. City of Daytona Beach,

353 F.3d 901, 907 (11th Cir. 2003) (holding that a final

judgment or consent decree is not an exhaustive list of

possibilities that could satisfy the prevailing party

judgment on the merits, but has caused a voluntary change in

defendant's behavior, is not a prevailing party (emphasis

added)).

standard); Truesdell v. Philadelphia Hous. Auth. 290 F.3d 159,

164 (3d Cir. 2002); but see Smyth v. Rivero, 282 F.3d 268, 284

(4th Cir. 2002) (holding an injunction granted to plaintiff did

not suffice to meet prevailing party standard under

Buckhannon). The holding of Buckhannon has been used in

various and often contradictory manners.

Review by this Court is required to resolve the

uncertainty created by these conflicting decisions. The

federal courts are divided over the appropriate

interpretation and application of a case of great importance.

The practical implications for civil rights plaintiffs

nationwide are grave should the reading of Buckhannon by

the D.C. Circuit be allowed to stand. The D.C. Circuit's

decision fundamentally misconstrues Buckhannon and

threatens to abrogate The Civil Rights Attorney’s Fees

Awards Act of 1976 as Congress intended it. See H.R. Rep.

94-1558 (1976); see also S. Rep. 94-1011 (1976).

1. The Abaya Policy. Female military personnel

stationed in the Kingdom of Saudi Arabia have been subject

to certain dress and conduct regulations since as early as

1995. These regulations were issued under the authority of

the Commander of the 363rd Air Expeditionary Wing-and

designated as 363 AEW INSTRUCTION 36-103 and were

punishable under Article 92 of the Uniform Code of Military

Justice. AEW Instruction 36-103. This policy applied solely

to female members of the United States military stationed in

the Kingdom of Saudi Arabia and governed, inter alia, their

off-base conduct and attire. See 363 Air Expeditionary Wing

Instruction 36-103, Colonel R.H. Haseloff, United States Air

Force, at 3.12.31 (Aug. 7, 2001) [hereinafter, AEW

Instruction 36-103]. The policy was published as a formal

Air Force instruction and ordered in paragraphs 3.12.3 and

3.12.3.1: “[w]omen will... Wear an abaya. The head cover

or scarf will be carried at all times and immediately worn if

host nation people request it. Units should purchase abayas

through contracting using AF Form 9 procedures.” Id. at

3.12.3, 3.12.3.1. The regulations specifically required that all

female supervisors wear an abaya when traveling off-base.

Moreover, the Instruction instituted a policy

requiring that each woman have at least one male escort

when traveling off-base, without consideration of rank or

the order’s adverse impact on her ability to perform her

duties, and dictated that no servicewoman drive a vehicle.

Id. at 3.12.3.5, 4.4. Women were likewise required to, “[r]ide

in the rear seat when there were more than two people

traveling in the vehicle.” Id. at 3.12.3.4. The Abaya Policy

and the various discriminatory instructions set forth in

AEW Instruction 36-103 were implemented without regard

to the religious beliefs of the servicewomen, their impact on

the ability of the women to perform their jobs, comfort in

the oppressive Saudi heat, the denigrating effect on women

in general, and without sound rationale.

An abaya is a religious garment characteristically

worn by Muslim women in obedience to the Prophet's reply

to A’isha as recorded in the Koran. The Prophet ordained:

“When a woman reaches puberty no part of her body

should remain uncovered except her face and the hand to

the wrist joint.” (A-12). The abaya is religious in nature and

was unconstitutionally forced upon the women of the U. S.

military by the DoD. Wearing the abaya is an outward

expression of belief in the Muslim faith. It is symbolic

speech and was forced upon the women of the United States

military by the DoD.

The Abaya Policy applied only to female members of

the United States armed services in the Kingdom of Saudi

Arabia (A-13). No other woman employed by the United

States government was required to wear the abaya while in

Saudi Arabia, on or off of a military base. For example,

female employees of the U.S. State Department were not

required to wear the abaya, nor were civilian contractors or

women working in Saudi Arabia for any of the United

States’ various agencies and departments. The Abaya Policy

was in effect in no other Islamic country. Likewise, the

instructions prohibiting females from both leaving base

unescorted and driving a vehicle applied only to

servicewomen in the Kingdom of Saudi Arabia. The Abaya

Policy was unique to the Kingdom of Saudi Arabia, despite

the fact that Saudi law did not require foreign women to

wear the abaya.

2. Factual Background. Lt. Col. Martha McSally is the

highest ranking female fighter pilot in the United States Air

Force. She is 38 years old and a graduate of the United

States Air Force Academy, where she ranked 25th in a class

of 1050 (A-10). Upon graduation, Lt. Col. McSally began a

stellar career serving her nation and was promoted to the

rank of Major two years ahead of her class, an honor

reserved for the top three percent of eligible officers. In

1994, Lt. Col. McSally was awarded a fighter assignment to

Kuwait and earned the distinguished honor of becoming the

first American woman to fly a combat mission when she

flew a sortie into Iraq in an effort to enforce the no-fly zone.

Lt. Col. McSally impressively has flown more than 100

combat hours in Iraq on two separate deployments to

Kuwait. (A-11). Lt. Col. McSally is a devout Christian (A-

15). She is a member of her military base’s non-

denominational Chapel and has led the women’s Bible

study, choir, most Chapel religious services and base prayer —

breakfasts.

It was in 1995 that Lt. Col. McSally first encountered

the DoD’s Abaya Policy. While in a Kuwaiti theater, she

noticed a small poster geared toward enlisted women,

which depicted the appropriate manner of dress while off-

base in Saudi Arabia. Intrigued, she obtained a formal copy ~

of the policy from the Joint Task Force-Southwest Asia

Headquarters (A-13). It was only then that Lt. Col. McSally

learned that while the policy prescribed the abaya as off-

base attire for women, military men were forbidden from

wearing any type of local customary clothing. See AEW

Instruction. Spurred by the gender inequities inherent in

the Abaya Policy, as well as by her own discomfort as a

Christian woman with being made to wear a symbol of the

Muslim faith and publicly veil her true identity as a

Christian, Lt. Col. McSally began her seven-year crusade to

change the policy (A-14).

Sometime after Lt. Col. McSally’s first encounter

with the Abaya Policy, then-Secretary of Defense William

Perry visited Lt. Col. McSally’s base in Kuwait. Lt. Col.

McSally approached the Secretary and inquired about the

policy. She asked him, “Sir, you just came from Saudi

Arabia. In your discussions, I was wondering if there was

any consideration to treating female American soldiers

serving in that country with a little more dignity?” (A-14)

During the following year, Lt. Col. McSally followed up the

chain of command to ascertain whether any action had

come of her raising the issue. None had.

In 1997, Lt. Col. McSally addressed the Defense

Advisory Committee on Women -in~ the Services

(DACOWITS). She was asked about her experiences as a

fighter pilot, and she mentioned the Abaya Policy.

DACOWITS was completely unaware of the policy's

existence. Over the next several years, Lt. Col. McSally

performed an increasing amount of research into the Abaya

Policy and, in 1999, assumed a position on Capitol Hill as a

legislative fellow. During this time, and until her departure

in 2000, Lt. Col. McSally discussed the policy with

congressional staffers, resulting in an inquiry into the policy

by a Congressman on the International Affairs Committee.

He informed Lt. Col. McSally that the policy was not one of

the United States State Department, as she had been led to

believe, but was rather the sole creation of the DoD. In

actuality, the State Department prohibited female

employees from wearing the abaya while on duty because

doing so was contrary to their role as representatives of the

United States government (A-14, 15).

Lt. Col. McSally immediately called the office of the

Secretary of Defense and described the findings of the

Congressman’s inquiry. The DoD responded by defending

the policy, stating that it was an important part of respecting

the host nation. In 2000, Major General Victor Renuart,

Commander of the Joint Task Force South West Asia (JTF-

SWA Commander), approached Lt. Col. McSally about his

consideration of her for assignment in Saudi Arabia. She

expressed her displeasure with the way servicewomen were

treated in Saudi Arabia and informed the Major General

that, if chosen for the position, as a Christian her personal

religious conviction would prevent her from wearing the

Muslim abaya and that she would continue to oppose the

policy. She stated that she would never put on the garment

and described her efforts over the previous five years to

change the policy. Major General Renuart initially told her

that there was little he could do with regard to the policy.

But upon Lt. Col. McSally informing him that the only place

the policy appeared in writing was in a local regulation

signed by him, he led her to believe that if assigned to Saudi

Arabia she could work from within to change the policy (A-

16).

Over the following year, Lt. Col. McSally continued

her efforts to change the Muslim Abaya Policy. She had

lunch with Secretary Whit Peters, then-Secretary of the Air

Force, and discussed the policy with him (A-16).

Additionally, upon receiving information notifying her that

the Abaya Policy was readily being enforced in Saudi

Arabia, Lt. Col. McSally wrote the JTF-SWA Commander in

anticipation of her deployment to Saudi Arabia and

reminded him of their earlier conversation and her personal

conviction. In response, Lt. Col. McSally received two

emails, one from the colonel chief of staff and another from

the judge advocate, instructing her that wearing the abaya

was an order which she would follow or suffer the

consequences of disobedience (A-17).

Upon her arrival in Saudi Arabia, Lt. Col. McSally

was met at the airport with an abaya and was forced to wear

it in compliance with the order. She then set about to

change the policy from within as planned. Approximately

one year into her tour of duty, Lt. Col. McSally met with her

new commander, Major General Renuart, as well as his

colonel judge advocate general and colonel chief of staff.

During the meeting, she was criticized for her stance against

the policy and was informed that the policy would not

change (A-18).

In 2001, Lt. Col. McSally was ordered to the United

States to attend a conference. While in the United States, she

met with her previous commander to again discuss the

Abaya Policy. The meeting yielded no change in the Abaya

Policy, and Lt. Col. McSally returned to Saudi Arabia.

During her final months there, she delegated the majority of

her off-base duties to her male deputy so that she would not

have to leave the base and be subjected to the Abaya Policy

and AEW Instruction. Despite voicing her desire to not

“take a negative hit” in her leadership evaluation as a result

of her convictions, she was again chastised for her view and

efforts (A-18). In March of the same year, Lt. Col. McSally

consented to an interview with USA Today. The interview

was quickly published in the national newspaper, which

further angered her commanding General. Upon returning

to Saudi Arabia after the interview, she was again forced to

put on an abaya in the airport to wear during the car ride to

the base (A-18, 19). At the base, she was faced with a hostile

work environment. In April of 2001, Lt. Col. McSally met

with Major General Dylewski, the new JIF-SWA

Commander, and he informed her that he was conducting a

_ review of the policy (A-19).

In Saudi Arabia, Lt. Col. McSally was responsible for

Combat Search and Rescue. Lt. Col. McSally was a major

participant in a novel exercise the United States completed

with the Bahrainis, and this exercise sparked interest in the

Saudis in completing a similar exercise with United States

command in Saudi Arabia. Lt. Col. McSally’s colonel,

however, refused to allow her to brief the Saudis in

preparation for the exercise, stating that she would probably

offend them (A-19). It was also during this time that Lt. Col.

McSally began to receive negative oral and written

feedback. She was denied the opportunity to perform other

briefings, and her officer performance report was sub par.

In addition, her supervisor refused to recommend her for

squadron command. The absence of the command

recommendation in the report of an officer of Lt. Col.

McSally’s caliber was highly conspicuous and was certain to

negatively impact her promotion potential (A-20).

In August of 2001, the Air Operations Center was

moved from Eskan Village, Saudi Arabia to the Prince

Sultan Air Base in the same country. Lt. Col. McSally was

not able to lead the move of her cell to the new location

because, pursuant to the DoD’s policy regarding the

conduct of female military personnel, she was not allowed

to drive. She was instead forced to rely on her deputy to

maneuver the vehicle. Her inability to appropriately

perform her job was the final straw for Lt. Col. McSally. As

a result of the DoD’s discriminatory policy hindering her

ability to perform her duties and the six years of fruitlessly

rallying for change from within the military, Lt. Col.

McSally decided that litigation was the only viable means of

achieving a material change in the DoD’s policy (A-20).

3. Litigation and the Congressional Response. After

seven years of attempting to protect her religious freedom

and end blatant gender discrimination in the U.S. military

while attempting to shield herself from any career

damaging recourse, Lt. Col. McSally filed a complaint

December 3, 2001 alleging violation of her religious liberty

under the First Amendment and the Religious Freedom

Restoration Act and gender discrimination under the Due

Process Clause of the Fifth Amendment. In her prayer for

relief, Lt. Col. McSally sought an injunction restraining the

Secretary, and others under his chain of command, from

enforcing Instruction 1.12.3.1, a declaration that the

regulation was illegal, and an award of costs and reasonable

attorneys’ fees. She sought to effect through litigation the

policy change that the DoD had evaded for over half a

decade.

On February 27, 2002, the Secretary filed the

declaration of Major Gen. Gary R. Dylewski, the

Commander of the Joint-Task Force-Southwest Asia (JTF-

SWA). Major Gen. Dylewski stated that the Abaya Policy

had been modified after the start of Lt. Col. McSally’s

lawsuit. Under the new policy, females were no longer

required to wear the Muslim abaya or carry the abaya head

scarf when traveling off-base, but it was strongly

encouraged. Finally, Lt. Col. McSally had secured

conscientious objector status for herself as a religious

objector to the wearing of the abaya. With the subtle change

in military policy, she could now, under the Uniform Code

of Military Justice, legally refuse to wear the abaya.

However, this change in the conscientious objector status of

Lt. Col. McSally marked the full range of benefit derived

from the alteration of the military’s policy. The new policy

no longer required servicewomen tc wear the abaya but,

rather, “strongly encouraged” it. Yet, in the military

tradition, there was no practical difference between the new

and old policy. A required order and a “strongly

encouraged” directive, for a subordinate in the United States

armed forces, are identical in purpose and effect.

The following day, February 28, 2002, the Secretary

of Defense filed a Motion to Dismiss the Complaint, arguing

that the revised policy “strongly encourag[ing],” but not

mandating the wearing of the abaya when traveling off-

base, mooted Lt. Col. McSally’s claims. This question was

fully briefed by the parties and argued before the Court on

Apmil 24, 2002.

Lt. Col. McSally then filed an Amended Complaint

on May 3, 2002, claiming that the technical change in the

language of the Abaya Policy did not constitute a practical

change in the policy. Lt Col. McSally contended that in the

military, “strongly encourag{ing]” denoted an effective

requirement. She argued that “[t]he new regulation is the

same policy as before in its purpose and effect.”

Finally, on May 14, 2002, after seven years of

dedicated effort on the part of Lt. Col. McSally, the United

States House of Representatives unanimously approved HR

4714, which amended the pending Joint Defense

Authorization Bill, HR 4546. The amendment specifically

addressed the DoD’s Abaya Policy. The bill prohibited the

DoD from requiring or formally urging female military

personnel to wear the Muslim abaya and head scarf while

stationed in the Kingdom of Saudi Arabia. The bill also

proscribed the use of funds appropriated by Congress to the

DoD for the purchase of abayas to be issued to

servicewomen in Saudi Arabia. Three days later, the

Secretary of Defense renewed his motion to dismiss Lt. Col.

McSally’s Complaint. He again argued that the new policy,

which only “strongly encourag{ed]” the wearing of the

abaya, rendered Lt. Col. McSally’s claim moot. The motion

was again fully briefed and argued by both parties.

On June 24, 2002, the United States Senate approved

amendment S.S. 3969 by a vote of 93-0. The amendment

changed the Department of Defense Authorization Bill by

prohibiting the DoD from requiring or formally urging

servicewomen serving in Saudi Arabia to wear the abaya.

The amendment’s language tracked that of legislation

drafted by counsel for Lt. Col. McSally as part of their effort

to obtain relief from the Abaya Policy for her.

While the renewed Motion to Dismiss was pending,

the parties jointly filed a Rule 16.3 Joint Report to the Court

on July 31, 2002, stating that both houses of the United

States Congress had unanimously passed an amendment to

the pending Joint Defense Authorization Bill eliminating the

Abaya Policy. :

Then, on September 27, 2002, the district court

denied the Secretary’s Motion to Dismiss Lt. Col. McSally’s

claim, holding that although Congress had approved

language in the Department of Defense appropriation bill

which would prohibit the Abaya Policy, that legislation had

not yet been enacted. The district court determined that

until the legislation was enacted, Lt. Col. McSally’s claim

under the Religious Freedom Restoration Act could not be

dismissed because there was evidence on the record that the

DoD’s policy of. “strongly encourag[ing]” women to wear

the abaya when off-base in the Kingdom of Saudi Arabia

would still restrain the free exercise of religion. The court

also called upon the Secretary to brief his position on

attorney's fees once the RFRA claim was resolved (A-6).

On October 15, 2002, the Secretary of Defense filed

an Answer to the Amended Complaint. Soon thereafter, Lt.

Col. McSally was transferred back to Saudi Arabia in

preparation of the April 2003 war in Iraq, despite the

Secretary’s representations in an earlier mootness briefing

that she was not subject to ever being returned to the

Middle East.

On December 2, 2002, President Bush signed into

law the amended National Defense Authorization Act for

Fiscal Year 2003, which, in one of its most fought for

components, forbade the DoD requiring or urging United

States servicewomen to wear the Muslim abaya while off-

base in Saudi Arabia.

4. The Dismissal of McSally v. Rumsfeld and the

Petition for Fees. Beginning in the spring of 2003, Lt. Col.

McSally was in Saudi Arabia fighting the war on terror and

was unable to assist with her lawsuit. On July 31, 2003, she

submitted to the district court her response to an order to

show cause. In her response, she stated that the amendment

of the prior general order requiring that female service

members wear the Muslim abaya and the unanimous

enactment of the amended National Defense Authorization

Act for Fiscal Year 2003, both of which directly resulted

from her seven-year effort to convince the DoD to change its

policy and from the litigation, had resolved her claims.

Therefore, she affirmed that she was prepared to dismiss all

claims regarding the Abaya Policy, and both her counsel

and counsel for the Secretary filed a joint stipulation of

dismissal on April 24, 2004 (A-7).

Due to unforeseen health problems and confusion as

to whether a final order of judgment was entered, counsel

for Petitioner filed their petition for fees pursuant to 42

U.S.C. §1988 on June 21, 2004, 58 days after filing the joint

. Stipulation. The district court deemed the motion to be

timely and pointed out that Lt. Col. McSally was the reason

for “Congressional action that trumped the military’s half-

baked response to her suit.” (A-4). However, the district

court declined to grant the request for attorneys’ fees,

writing that the situation was indistinguishable from that in

Buckhannon (A-4). On April 8, 2005, the District of Columbia

Court of Appeals entered a per curiam order affirming the

District Court's judgment. It held that “the term ‘prevailing

party’ does not authorize an award of attorneys’ fees when

the plaintiff achieves the desired result through legislative -

not judicial - action.” (A-2).

REASONS FOR GRANTING THE WRIT

This Court should grant review to resolve the

conflict among the courts of appeals over the definition of

“prevailing party” under the Civil Rights Attorney's Fees

Awards Act of 1976 and to make clear that Congress

intended that a plaintiff who secures a material and legally

enforceable change in the legal relationship between

plaintiff and defendant resulting from an involuntary

change in the defendant's behavior may recover reasonable

costs and attorney's fees under the Act. Resolution of these

fundamental issues is crucial to the administration of justice

and the fulfillment and furtherance of the purpose of the

1976 Act. See The Civil Rights Attorney’s Fees Award Act of

1976, 42 US.C. § 1988 (2005); see also H.R. Rep. 94-1558

(1976); S. Rep. 94-1011 (1976).

LT. COL. MCSALLY IS A “PREVAILING

PARTY” UNDER THE CIVIL RIGHTS

ATTORNEY'S FEES AWARDS ACT OF

1976 AND IS ENTITLED TO

REASONABLE ATTORNEYS’ FEES AND

COSTS.

The Court of Appeals erred when it declared that Lt.

Col. Martha McSally was not a “prevailing party” for the

purposes of 42 U.S.C. § 1988 which authorizes, in the court's

discretion, fee-shifting in civil rights actions. The legislative

history of the Civil Rights Attorney's Fees Awards Act of

17

1976 demonstrates that Congress intended the phrase

“prevailing party” to encompass more than the clear victor

at the end of litigation or a party that had obtained a

favorable “final judgment following a full trial on the

merits.” See H.R. Rep. No. 94-1558, p. 7. Specifically,

“parties may be considered to have prevailed when they

vindicate rights. .. without formally obtaining relief.” Id.

Congress plainly intended a plaintiff such as Lt. Col.

McSally to be deemed a “prevailing party” because she took

on the role of a “private attorney general”? when she

challenged the DoD’s unconstitutional and discriminatory

* The theory of the “private attorney general” was considered by

Congress in the enactment of The Civil Rights Attorney's Fees Awards

Act of 1976. See S. Rep. 94-1101, at 3 (1976); H.R. Rep. 94-1558, at 6

(1976). The theory is not novel and is best articulated in Newman vy.

Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). The Senaie

Report utilizes the theory in its statement on the 1976 Act:

When a plaintiff brings an action under [Title II] he

cannot recover damages. If he obtains an injunction,

he does so not for himself alone, but also as a ‘private

attorney general,’ vindicating a policy that Congress

considered of the highest priority. If successful

plaintiffs were routinely forced to bear their own

attorneys’ fees, few aggrieved parties would be in a

position to advance the public interest by invoking the

injunctive powers of the Federal courts. Congress

therefore enacted the provision for counsel fees--* *

*(sic) to encourage individuals injured by racial

discrimination to seek judicial relief under Title II.

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402 (1968).

S. Rep. 94-1101, at 3. The Report further states, “[t}he idea of

the ‘private attorney general’ is not a new one, nor are

attorneys’ fees a new remedy. Congress has commonly

authorized attorneys’ fees in laws under which ‘private attorney

general(sic]’ play a significant role in enforcing our policies.”

Id

Abaya Policy. Lt. Col. McSally “play[ed] a significant role in

enforcing [the] policies” of the United States and is,

therefore, well within the class of plaintiffs contemplated by

Congress when it scripted the 1976 Act. S. Rep. 94-1101, at

3. Her lawsuit resulted in landmark legislation in which

Congress forced an unwilling executive department to end

nearly a decade of illegal activity. Lt. Col. McSally satisfied

the requirements of the Act when her litigation caused a

legally enforceable involuntary change in the DoD policy

and resulted in a material change of the position of both Lt.

Col. McSally and the DoD. The Court of Appeals was in

error when it relied on Bucklannon, a _ factually

distinguishable case concerning a voluntary change in the

behavior of a defendant, to restrict the award of attorneys’

fees to Lt. Col. McSally.

A. Buckhannon is Factually

Distinguishable from the Instant

Action and Does Not Bar Lt. Co.

McSally from Recovering

Reasonable Attorneys’ Fees.

In Buckhannon, the Supreme Court determined that a

plaintiff who has failed to secure a judgment on the merits

or by a court-ordered consent decree, but has nonetheless

achieved the result desired by the lawsuit due to a voluntary

change in the defendant's behavior, is not a “prevailing

party.” See Bucklannon, 532 U.S. at 600. There, the plaintiffs

alleged that a requirement of a West Virginia statute

violated both the Fair Housing Amendments Act of 1988

(FHAA) and the Americans with Disabilities Act of 1990

(ADA). Apparently agreeing, the state legislature took steps

to remedy the challenged legislation. As a result of the

litigation, the West Virginia legislature enacted two bills

eliminating the offensive requirement. The West Virginia

legislature was motivated to act by the pending lawsuit and,

without instruction from the judiciary or state executive

branch, voluntarily changed the requirement. .

The Buckhannon Court held:

A defendant's voluntary change in conduct,

although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit,

lacks the necessary judicial imprimatur on

the change. Our precedents thus counsel

against holding that the term “prevailing

party” authorizes an award of attorney's

fees without corresponding alteration in the

legal relationship of parties.

Id. at 605 (first emphasis added). In so holding, this Court

specifically determined that a voluntary change did not rise to

the standard of conferring “prevailing party” status on a

plaintiff, but the decision is conspicuously silent regarding

involuntary changes in the behavior of the defendant. The

facts of Buckhannon did not present this issue, and this Court

did not address it.

Buckhannon is altogether distinguishable from the

case of Lt. Col. McSally, who had worked to no avail for

seven years to effectuate a change in the DoD’s Abaya

Policy. She protested the Abaya Policy and petitioned the

DoD for its formal revocation. Finally, after almost a full

decade of infringed constitutional rights, Congress enacted

legislation forcing the DoD to end its unconstitutional

practices. See Pub. L. No. 107-314, §563.

The facts of Buckhannon are simply not analogous to —

this action, and its holding is therefore inapplicable. Lt. Col.

McSally’s crusade to end a policy of religious and gender

discrimination in the United States Air Force came to a

successful close when the U.S. Congress, motivated to action

by her seven-year effort and ensuing litigation, forced an

unwilling DoD to abandon its denigrating policy. The DoD

did not voluntarily change the Muslim Abaya Policy--

Congress enacted legislation prohibiting it from continuing

the discriminatory imperative. Lt. Col. McSally’s lawsuit

was mooted when the legislative branch of the USS.

government, in an exercise of its lawmaking power, dictated

a policy change in an agency of the executive branch. The

policy change was not voluntary, but an example of

constitutional checks and balances. This situation is far

outside the scope of Buckhannon and cannot be judged by its

standard.

Understanding that Bucklannon _ specifically

overruled the “catalyst theory”--which “posits that a

plaintiff is a ‘prevailing party’ if it achieves the desired

result because the lawsuit brought about a voluntary change

in the defendant's conduct,” Buckliannon, 532 U.S. at 601

(emphasis added) --Petitioner does not assert the “catalyst

theory” in this case. Instead, Petitioner maintains that her

litigation was resolved when a third party, the US.

Congress, prohibited the DoD from further denigrating

female service members by way of its Abaya Policy. The

DoD did not voluntarily discontinue use of the policy as

would be necessary for an argument based on the “catalyst

theory”. Instead, Lt. Col McSally’s lawsuit caused an

intervening party to act with legal authority to force the

DoD to end its illegal activity.

The facts of this case present a novel question to the

Court, and the U.S. Court of Appeals for the District of

Columbia Circuit erred in affirming the dismissal of Lt. Col.

McSally’s fee petition based upon the decision of this Court

in Buckhannon.

Congress Intended that Plaintiffs

Situated Such as Lt. Col. McSally be

Awarded Attorneys’ Fees.

This Court held in Hanrahan v. Hampton, 446 U.S.

794, 756-57 (1980), that “[t]he legislative history cf the Civil

Rights Attorney’s Fees Awards Act of 1976 indicates that a

person may in some circumstances be a ‘prevailing party’

without having obtained a favorable ‘final judgment

following a full trial on the merits.” Hanrahan, 446 USS. at

796-57 (citing H.R. Rep. No. 94-1558, at 7; S. Rep. No. 94-

1011, at 5). Similarly, the U.S. House of Representatives

made clear its intent regarding the class of plaintiffs able to

be deemed a “prevailing party.” Representative Drinan, a

member of the House Judiciary Committee, wrote:

The phrase “prevailing party” is not intended

to be limited to the victor only after entry of a

final judgment following a full trial on the

merits. It would also include a litigant who

succeeds even if the case is concluded prior

to a full evidentiary hearing before a judge or

jury.

H.R. Rep. 94-1558, at 7. The Senate articulated an even

broader approach. It chose not to employ the language

“prevailing party” at all and required only that a plaintiff

succeed in the enforcement of his infringed rights. See S.

Rep. 94-1101, at 4. Senator Tunney of the Senate Judiciary

Committee wrote, “[a] party seeking to enforce the rights

protected by the statutes covered by S. 2278, if successful,

‘should ordinarily recover an attorney's fee unless special

circumstances would render such an award unjust.’” S.

Rep. 94-1101, at 4 (emphasis added) (quoting Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)).

Moreover, Senator Tunney cited the “private attorney

general” theory as the motivating factor for the legislation

and argued for a broad class of “prevailing” plaintiffs. See

id. He even authorized the award of fees pendite lite in the

appropriate circumstances. Id. at 5.

Lt. Col. McSally is clearly a plaintiff contemplated by

both houses in the drafting of The Civil Rights Attorney’s

Fees Awards Act of 1976. See H. R. Rep. 94-1558; S. Rep. 94-

1101. The House explicitly announced that in order to be

deemed a “prevailing party,” the litigant need not have

emerged victorious after a “full trial on the merits.” See H.R.

Rep. 94-1558, at 7. The report’s author further asserted that

the plaintiff could “prevail” for the purposes of the Act even

if the case was concluded before a “full evidentiary hearing

before a judge or jury.” Id. The instant action fits squarely

within the original intent of the Act.

Lt. Col. McSally’s litigation concluded successfully

when the United States Congress, acting under Article I of

the Constitution, enacted legislation prohibiting the DoD

from exercising the Abaya Policy and terminating its ability

to use congressionally delegated funds to purchase abayas

for female service members. See Pub. L. No. 107-314, §563.

Through her seven-year effort, including the instant

litigation, Lt. Col. McSally’s First and Fifth Amendment

rights were fully vindicated, as were her rights under the

Religious Freedom Restoration Act. The trial judge wrote,

[i]t cannot be doubted or gainsaid that her

courageous action in challenging dress and

conduct regulations applicable only to

women serving in the military in Saudi

Arabia resulted first in a modification of

those regulations by the military and then

in Congressional action ferbidding-the DoD

from requiring or even formally urging

servicewomen stationed in Saudi Arabia to

wear the abaya.

(A-3). Due to Congress’ intervention as a direct result of her

efforts, Lt. Col. McSally was able to successfully conclude

her lawsuit, despite the absence of a full evidentiary hearing

_ before judge or jury. Notwithstanding the early termination

of her suit, the rights she fought for seven years to vindicate

were finally protected under legal imprimatur. Thus, she is

clearly a “prevailing party” within the terms of the Act.

Finally, it was the original intent of the Act's drafters

that it be read to secure fees for a broad group of plaintiffs.

The Senate Report focuses largely on making it easier for

plaintiffs to be awarded attorneys’ fees under the Act, not

harder.

THE COURT OF APPEALS MISCONSTRUED

BUCKHANNON,

In its summary affirmance of the dismissal of Lt. Col.

McSally’s petition, the Circuit Court paid special attention to

this Court's notation in Buckhannon that the term “prevailing

party” was a legal term of art used in numerous fee-shifting

statutes. (A-2). The Circuit Court specifically stated, “it is

clear here that appellant is not a ‘prevailing party’ as that

term has been construed. under the law of this circuit. In

particular, the term ‘prevailing party’ does not authorize an

award of attorney’s fees when the plaintiff achieves the

desired result through legislative—not judicial action.” (A-

2). However, in summarily affirming the decision of the

District Court, the Court of Appeals misconstrued and

broadly overstated this Court's holding in Buckhannon.

The Buckhannon Court invalidated the “catalyst

theory” because it determined that a voluntary change in

defendant's behavior does not carry with it a corresponding

alteration in the legal relationship of the parties.

Buckhannon, 532 U.S. at 605. Upon referring to the long line

of cases defining the boundaries of the fee-shifting statutes,

this Court wrote,

[t]hese decisions, taken together, establish

that enforceable judgments on the merits and

court-ordered decrees created the “material

alteration of the legal relationship of the

parties” necessary to permit an award of

attorney’s fees.

Buckhannon, 532 U.S. at 604. The focus in Buckhannon was

not on the type of action concluding the case, but on the

presence of a “material alteration of the legal relationship of

the parties.” Id. The Court supplied a non-exhaustive list of

examples including, but not limited to, a final judgment or

consent decree which would allow a plaintiff to be

considered the “prevailing party.” But the situations

enumerated by the Court were by way of example, and not

meant to provide an exhaustive list of circumstances under

which a plaintiff may recover attorney’s fees. The heart of

the Buckiannon holding is to require a legally enforceable

and material alteration in the position of the parties in order

for attorney’s fees to be recoverable. There are instances

other than those listed in Buckhannon that might satisfy this

requirement.

The Buckhannon Court did not attempt to, nor did it

profess to, render judgment on every possible situation that

might arise. Additionally, the non-exhaustive list the

Bucklunnon Court provided has been interpreted in various

ways. Instances other than a consent decree or an

enforceable judgment on the merits have been recognized as

sufficient by several other Circuit Courts. In Palmetto Props.,

Inc. v. County of DuPage, 375 F.3d 542 (7 Cir. 2004), the

court held that a county’s repeal of an adult use ordinance

was not voluntary for purposes of the Buckhannon case

where the repeal occurred after the court had ruled in favor

of the plaintiff on a summary judgment motion, although no

final judgment or order was entered on that ruling. The

Seventh Circuit held that a final judgment or order was not

required to make the plaintiff a prevailing party for

purposes of § 1988; the summary judgment ruling had

changed the legal relationship of the parties, and to

conclude that the plaintiff was not a prevailing party would

exalt form over substance. Id. at 551.

A legally enforceable settlement agreement was

deemed sufficient by the Third and Ninth Circuits.

Statements by both the Eleventh and Second Circuits

express the view that other possibilities beyond a final

judgment or consent decree could satisfy the prevailing

party standard. See Truesdell v. Philadelphia Housing Auth.,

290 F.3d 159, 164 (3rd Cir. 2002) (determining an enforceable

settlement agreement sufficient to entitle plaintiff to

“prevailing party” status); Barrios v. Cal. Interscholastic Fed’n,

277 F.3d 1128, 1137 (9th Cir. 2002) (differentiating between a

plaintiff serving as a “catalyst of policy change” and a party

to a legally enforceable settlement agreement who could sue

if the contract was breached); Smalbein v. City of Daytona

Beach, 353 F.3d 901, 907 (11th Cir. 2003) (holding that a final

judgment and consent decree did not exhaust the list of

occasions satisfying the “prevailing party” standard);

Roberson v. Giuliani, 346 F.3d 75, 83 (2nd Cir. 2003) (holding

same). Because of this, the D.C. Court of Appeals

fundamentally erred whe: it determined that, despite a

material and legally enforceable alteration in policy of the

DoD, Buckhannon barred the award of attorneys’ fees to Lt.

Col. McSally because the conclusion of her litigation did not

neatly fit into one of the two examples listed by the Court.3

> The dissent in Oil, Chemical and Atomic Workers Union v. Department

of Energy, 288 F.3d 452, 460 (D.C. Cir. 2002) fully addressed the facts

before the Buckhannon Court and the resultant holding of limited

The central holding of Buckhannon is that in order

for a plaintiff to meet the “prevailing party” standard

without a full trial on the merits, she must succeed in

achieving a legally enforceable and “material alteration of

the relationship of the parties.” Buckhannon, 532 U.S. at 604.

Lt. Col. McSally has met this standard.

Under Buckhannon, a voluntary change in

defendant's behavior does not make the plaintiff a

“prevailing party” because such a change, without judicial

or legislative ratification, is unenforceable. It has no legal

weight, and the defendant can easily reverse its position at

the dismissal of litigation. The plaintiff is no more legally

empowered at the end of the litigation than at its start.

However, an involuntary change forced upon the defendant

by an authority with legal power to do so clearly satisfies

the prevailing party standard.

The legislation passed by Congress has clearly

provided Lt. Col. McSally with legally enforceable recourse

should the DoD revert to its illegal policy. The material

alteration in the legal relationship between Lt. Col. McSally

and the DoD bears the mark of legislative imprimatur and

empowers her to judicially defend her victory should the

defendant once again implement the Abaya Policy.

The Court of Appeals thus erred in its construction

of Buckhannon. The change in DoD policy forced by the

legislation arising out of Lt. Col. McSally’s litigation

possesses the requisite legal imprimatur to confer on her the

application. See Oil Chemical and Atomic Workers Int'l Union, 288 F.3d

at 460 (dissenting on grounds that Buckhannon “makes clear that the

Court did not have the occasion to provide an exhaustive list of the

various forms of judicia! relief that the plaintiff must obtain in order to be

a ‘prevailing party.’ .. .") (Rogers, C.J., dissenting).

status of “prevailing party.” Whether the change is

legislative or judicial in nature is of little consequence under

the original intent of the 1976 Act. In both instances, there

would exist a “corresponding alteration in the legal

relationship” between Lt. Col McSally and the DoD. This is

all that is required by the Buckhannon decision. See

Buckhannon, 532 US. at 604 (stating that the reason

enforceable judgments on the merits and ordered consent

decrees confer “prevailing party” status on the plaintiff is

because they “create the ‘material alteration of the legal

relationship of the parties’ necessary to permit an award of

attorney’s fees” and that “precedents thus counsel against

holding that the term ‘prevailing party’ authorizes an award

of attorney’s fees without a corresponding alteration in the

legal relationship of the parties”).

If Lt. Col. McSally’s litigation had ended with the

DoD voluntarily agreeing to cease its illegal practices,

perhaps then the Court of Appeals’ decision would be an

accurate interpretation of Buckhannon and that case might

apply to the facts of this case. However, the termination of

the Abaya Policy was forced upon the DoD by Congress and

was thus not a voluntary action undertaken by the DoD. As

a result, the requisite alteration in the legal position of the

parties which can be enforced through legal means is

present. The Court of Appeals’ refusal to find that Lt. Col.

McSally is a prevailing party eligible for attorneys’ fees

under the Act is in error.

CONCLUSION

Buckhannon presented the question “whether [the

term ‘prevailing party’} includes a party that has failed to

secure a judgment on the merits or a court-ordered consent

decree, but has nonetheless achieved the desired result

because the lawsuit brought about a voluntary change in the

defendant's conduct.” /d. at 600 (emphasis added). There,

this Court specifically addressed and overturned the

“catalyst theory” which argues that a plaintiff is a

“prevailing party” for the purposes of the Civil Rights

Attorney's Fees Awards Act of 1976 if the plaintiff's lawsuit

brought about a voluntary change in the defendant's

conduct. /d. at 601. Bucklannon is factually dissimilar to the

instant action and did not address whether attorney’s fees

may be awarded by a court when the plaintiff's litigation

resulted in an involuntary change in the defendant's conduct

and a material alteration in the position of the parties.

As such, Buckhannon does not bar an award of

attorneys’ fees to Lt. Col. Martha McSally. Over the

objections of the Secretary of Defense, and in response to Lt.

Col. McSally’s seven-year efforts, the U.S. Congress

unanimously acted to vindicate Lt. Col. McSally’s rights by

enacting a law prohibiting the DoD’s illegal and

discriminatory Abaya Policy. See Pub. L. No. 107-314, §563.

In doing so, Congress forced the DoD to involuntarily

change its policy. This in turn provided Lt. Col. McSally

with an enforceable legal decree and materially changed her

legal relationship with the DoD. All requirements for an

award of attorneys’ fees under 42 U.S.C. § 1988, therefore,

have been satisfied.

For the foregoing reasons, petitioner prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the District of Columbia Circuit.

Respectfully submitted,

Thomas S. Neuberger

Stephen J. Neuberger

THE NEUBERGER FIRM

Two East Seventh Street

Suite 302

Wilmington, DE 19801

(302) 655-0582

Counsel of Record for Petitioner

Randal M. Shaheen

ARNOLD & PORTER

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5734

John W. Whitehead

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, VA 22906

(434) 978-3888

Co-Counsel for Petitioner

Supreme Court of the Anited States

MARTHA MCSALLY, LT. COL.,

Petitioner,

DONALD H. RUMSFELD,

SECRETARY OF DEFENSE,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

APPENDIX

Thomas S. Neuberger

Stephen J. Neuberger

THE NEUBERGER FIRM

Two East Seventh Street

Suite 302

Wilmington, DE 19801

(302) 655-0582

Cousel of Record for

Petitioner

Randall M. Shaheen

ARNOLD & PORTER

555 Twelfth Street, N.W.

Washington, DC 20004

(202) 942-5734

John W. Whitehead

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, VA 22906

(434) 978-3888

Co-Counsel for Petitioner

LANTACNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond. Virginia 23219 (800) 847-0477

APPENDIX TO THE WRIT OF CERTIORARI

TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the District of Columbia, filed April 8, 2004,

No. 04-5303

Memorandum Order of the United States

District Court for the District of Columbia,

entered July 23, 2004

Memorandum Order of the United States

District Court for the District of Columbia,

entered July 27, 2002

Stipulation of Dismissal entered April 20, 2004

Affidavit of Martha E. McSally filed March 26, 2002....

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 8, 2005

No. 04-5303

Martha McSally, Lt. Col.,

Appellant

V.-

Donald H. Rumsfeld, Secretary of Defense,

Appellee

Before: EDWARDS, HENDERSON, and RANDOLPH,

Circuit Judges.

ORDER

Upon consideration of the motion for summary

affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion be granted and the District

Court's judgment filed July 23, 2004, denying appellant's

request for an award of attorneys’ fees and costs, be

affirmed. The merits of the parties' positions are so clear as

to warrant summary action. See Taxpayers Watchdog, Inc. v.

Stanley, 260 U.S. App. D.C. 334, 819 F.2d 294, 297 (D.C. Cir.

1987) (per curiam).

The issue in this case is whether appellant is entitled to

an award of attorneys’ fees under the Civil Rights Attorney's

Fees Awards Act, 42 U.S.C. § 1988, which authorizes a fee

award to the "prevailing party." We hold that she is not.

In Buckhannon Board & Care Home, Inc. v. West Virginia

Dep't of Health & Human Resources, 532 U.S. 598, 149 L. Ed. 2d

855, 121 S. Ct. 1835 (2001), which involved the fee-shifting

provisions of the Fair Housing Amendments Act and the

Americans with Disabilities Act, the Supreme Court noted that

the term "prevailing party" is a "legal term of art" used in

numerous [*2] federal statutes, including § 1988, and the

Court has "interpreted these fee-shifting provisions

consistently." 532 U.S. at 603 & n.4. Joining several other

circuits that have considered the question, we hold that

Buckhannon applies to the definition of "prevailing party"

under the Civil Rights Attorney's Fees Awards Act. See, e.g.,

Richardson v. Miller, 279 F.3d 1, 4-5 (1st Cir. 2002); N.Y. State

Fed'n of Taxi Drivers, Inc. v. Westchester County Taxi &

Limousine Comm'n, 272 F.3d 154, 158 (2d Cir. 2001) (per

curiam).

On the record here, it is clear that appellant is not a

“prevailing party" as that term has been construed under the

law of this circuit. See Thomas v. Nat'l Sci. Found., 356 U.S.

App. D.C. 222, 330 F.3d 486, 492-94 (D.C. Cir. 2003). In

particular, the term "prevailing party" does not authorize an

award of attorneys' fees when the plaintiff achieves the

desired result through legislative - not judicial - action. See

Buckhannon, 532 U.S. at 601, 604-06.

The Clerk is directed to publish this order pursuant to

D.C. Circuit Rule 36. The Clerk is further directed to

withhold issuance [*3] of the mandate herein until seven

days after resolution of any timely petition for rehearing or

petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C.

Cir. Rule 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARTHA MCSALLY,

Plaintiff,

Vv. : Civil Action No.

: 01-2481 (JR)

DONALD RUMSFELD, Secretary of :

Defense, :

Defendant.

MEMORANDUM ORDER

Plaintiff, Lt. Col. Martha McSally, moves pursuant to

Rule 54(d)(2)(C) for an order granting her an award of

reasonable attorneys’ fees and costs as a “prevailing party”

pursuant to 42 US.C. § 1988. It cannot be doubted or

gainsaid that her courageous action in challenging dress and

conduct regulations applicable only to women serving in the

military in Saudi Arabia resulted first in a modification of

those regulations by the military and then in Congressional

action forbidding the Defense Department from requiring or

even formally urging servicewomen stationed in Saudi

Arabia to wear the abaya.

These things happened in late 2002, and this case has

languished since then because of stalled negotiations over

whether and to what extent plaintiff's counsel should be

compensated for their efforts in prosecuting this case.

Apparently those discussions came to naught. On April 20,

2004, the parties stipulated that the case would be dismissed

pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil

Procedure, and plaintiff thereafter filed the instant motion

for attorneys’ fees.

The defendant. resists the motion on the ground,

first, that it is untimely. That objection is overruled. The

deadline imposed by Rule 54(d)(2)(B) is “[fourteen] days

after entry of udgment,” but no “judgment” was ever

entered in this case. Even if the fourteen days runs from the

date of voluntary dismissal, the rule provides adjustment of

the deadline by “order of the court,” which this

memorandum shall be deemed to be.

Defendant's second ground for opposing the motion

for attorneys’ fees, unfortunately for plaintiff’s counsel, is

dispositive. It relies upon Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep't of Health & Res., 532 U.S. 598 (2001),

which, as defendant correctly points out, instructs that a

party must obtain a judicially ordered “material alteration of

the legal relationship of the parties” before it may be

considered a prevailing party under a statute that permits

an award of attorneys fees to a prevailing party. Id. at 604

(quoting Tex. State Teachers Ass’n v. Garland Indep. Sch.

Dist, 489 U.S. 782, 792-93 (1989)). Plaintiff was

unquestionably the “catalyst” for defendant's adjustment of

the regulations and then for Congressional action that

trumped the military’s half-baked response to her suit. It

would be correct, indeed, to say that she was not only the

catalyst, but also the most active ingredient. Nevertheless,

plaintiff has not shown a way to distinguish or circumvent

the rule of Buckhannon, and none occurs to this Court. The

motion [40] must be, and it hereby is, denied.

JAMES ROBERTSON

United States District Judge

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARTHA MCSALLY,

Plaintiff,

: Civil Action No.

: 01-2481 (UR)

DONALD H. RUMSFELD, Secretary :

Of Defense, :

Defendant.

MEMORANDUM ORDER

After reviewing the parties’ briefs on defendant's

renewed motion to dismiss, and after considering matters

presented to the Court in a telephone conference on July 30,

2002, it appears that only three issues remain in dispute. The

first is whether the defendant's new policy of encouraging

(but not requiring) women to wear the abaya in Saudi Arabia

moots the plaintiff's claim under the Religious Freedom

Restoration Act. The second is whether plaintiff should be

permitted to pursue her retaliation claim. The third is

attorneys’ fees.

The first question appears poised for resolution by

Congress, in that the latest version of the National Defense

Authorization Act for fiscal year 2003, S. 2514, would

prohibit the Armed Forces from requiring and from

encouraging the wearing of the abaya, and would prohibit

any adverse action, formal or informal, against any member

of the Armed Forces for choosing not to wear it in Saudi

Arabia. § 554. It does not appear that that has been finally

enacted into law, however, and the presence in the record of

the affidavit of a general officer - - to the effect that

“strongly encourage” may not be the equivalent of

“require” but nevertheless restrains the free exercise of

religion - - makes it impossible for me to dismiss plaintiff's

RFRA claim as a matter of law.

The second question, relating to plaintiff's

retaliation claim, is one that the parties say would be easily

resolved if this case could be settled. Unfortunately, it

appears that the third question, attorneys’ fees, has made

settlement impossible. The government's attorneys fee

position, based on Buckhannon Board & Care Home, Inc. v.

West Virginia Dep't. of Health Res., 532 U.S. 598 (2001),

needs to be briefed and argued. As long as plaintiff's RFRA

claim is unresolved, however, the attorneys’ fee question is

premature. It is accordingly

ORDERED that defendant's motion to dismiss [17]

is denied.

JAMES ROBERTSON

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARTHA MCSALLY

Plaintiff,

)

)

)

) Civil Action No.

Vv. ) 01-2481 (JR)

)

)

)

)

)

DONALD H. RUMSFELD,

Defendant.

STIPULATION OF DISMISSAL

Pursuant to Fed. R. Civ. P. 41 (a)(1)(ii), the parties

hereby stipulate to dismissal of this action with prejudice,

except as to attorney fees and costs.

1. Plaintiff further states that although not yet official

she understands that she is about to receive a prestigious

assignment and therefore no longer desires to pursue her

retaliation claim.

ys Defendant further states that dismissal is otherwise

warranted.

Respectfully Submitted,

/s/Randal M. Shaheen by CLW

Randal M. Shaheen, Esq.

D.C. Bar No. 409292

ARNOLD & PORTER LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Thomas Stephen Neuberger, Esq.

Delaware Bar No. 243

Thomas S. Neuberger, P.A.

Attorney and Counsellor at Law

Two East Seventh Street, Suite 302

Wilmington, Delaware 19801-3707

Tel: 302-655-0582

(Cooperating Attorney for the Rutherford

Institute)

Counsel for Plaintiff

Lt. Col. Martha McSally

/s/Caroline Lewis Wolverton

PETER D. KEISLER

Assistant Attorney General

ROSCOE C. HOWARD, JR.

United States Attorney for the District of

Columbia

VINCENT M. GARVEY

Deputy Branch Director

Caroline Lewis Wolverton, Esq.

Ronald Wiltsie, Esq.

United States Department of Justice

Civil Division

P.O. Box 883

Washington, D.C. 20044

Counsel for Defendant Donald H. Rumsfeld

Dated: April 20, 2004

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARTHA MCSALLY

Plaintiff,

Vv.

DONALD H. RUMSFELD

Secretary of Defense

Defendant.

AFFIDAVIT OF MARTHA E. MCSALLY

Martha e. McSally, being duly sworn, deposes and states:

1. My name is Martha E. McSally. I am an active duty

United States Air Force Officer serving in the grade of

lieutenant colonel. 1 am currently assigned to the 612%

Combat Operations Squadron at Davis Monthan Air Force

Base, Arizona. I am the flight commander for the Air

Operations Center (AOC) Flight within that squadron.

2. I was commissioned in 1988 after completing four

years at the United States Air Force Academy. I graduated

25'" in my class of 1050, earning Distinguished Graduate

honors and a full scholarship to Harvard University’s John

F. Kennedy School of Government. I attended Harvard full

time for two years as a lieutenant, and was awarded a

masters of public policy with a concentration in

international security in 1990. While studying at Harvard, |

served as an intern at NATO politica! Headquarters in

Brussels, Belgium for two summers, where | earned an Air

Force Achievement Medal for my contributions to NATO

nuclear and conventional arms control issues and future

NATO strategy in the post Cold War era. During my

second year at Harvard, I served seven to ten days a month

as the youngest action officer in the Joint Staff of the

Pentagon. There I contributed to work on the United States

positions for the Conventional Forces in Europe Treaty

negotiations between NATO and the Warsaw Pact.

3. I attended pilot training in 1990-1991, and chose an

assignment as a T-37 instructor pilot upon graduation.

4. In 1994, I earned a fighter assignment and became a

combat ready A-10 pilot. I deployed to Kuwait and was the

first woman in America to fly a combat mission when I flew

my fist sortie into Iraq to support the no-fly zone

enforcement. I flew one hundred combat hours in Iraq on

two separate deployments to Kuwait.

~ 3 In 1997, I was handpicked to become an A-10

instructor pilot. Also in that year, I was selected for

promotion to major two years before my peers, a distinction

given to fewer than three percent eligible.

6. In 1999, I was selected as one of only fourteen active

duty Air Force personnel for a legislative fellowship on

Capitol Hill. I served as a defense and foreign affairs

advisor to a United States senator for one year.

Fe During 1999, I was promoted to the rank of

lieutenant colonel two years early, putting me four years

ahead of my peers, a rare endorsement reserved for future

leaders.

8. In 2000, I was assigned on a remote tour to Saudi

Arabia to become the Director of the Joint Search and

Rescue Center (JRSC), which resides in the Air Operations

Center (AOC). The AOC is the large command control

center used to run all air operations in the Middle East. I

was responsible for planning, training, preparing, and

directing execution of missions to rescue downed airman or

injured ground personnel in the Middle Eastern theater.

This responsibility initially focused on Iraq, but expanded to

Afghanistan after September 11, 2001. Although the normal

remote tour ends at twelve months, I volunteered to stay in

Saudi Arabia an extra month for the mission in Afghanistan.

I have over 1900 hours of flying time and a senior pilot

rating.

9. I am currently challenging four military regulations

in this case, all set forth in 363 AEW Instruction 36-103,

entitled Off-Base Travel Program:

Paragraph 1.12.3.1: all servicewomen to wear an

abaya and carry an abaya headscarf, putting it on when

requested by local nationals;

Paragraph 1.12.3.4: all servicewomen to ride in the

back seat of vehicles;

Paragraph 1.12.3.5: all servicewomen to be

accompanied by a male companion; and

Paragraph 4.4: no servicewomen permitted to

operate a vehicle except in an emergency.

10. The wearing of the abaya by women is a tenet of the

Islamic faith. The abaya is a mode of dress imposed upon

Saudi women solely for religious reasons under provisions

of the Koran which, by text and tradition, requires women

to wear a head covering and an overgarment. It is based, at

least in part, upon the Prophet's reply to A’isha: “When a

woman reaches puberty no part of her body should remain

uncovered except her face and the hand up w the wrist

joint.” Other customs addressed in the challenged

regulations are similarly dictated by principles of the

Islamic faith.

11. These regulations apply only to female military

personnel. They do not apply to the wives of military

personnel stationed in Saudi Arabia. They do not apply to

non-military females who visit military installations in

Saudi Arabia. They do not apply to other federal

employees, such as diplomats or other employees stationed

at the United States embassy. Nor do the restrictions on

dress apply to servicemen stationed in Saudi Arabia. In

fact, males are specifically prohibited from wearing Islamic

dress.

12. In 1995, on my initial deployment to Kuwait, I first

learned of the policy that required servicewomen to wear

the abaya and abaya headscarf when off the installation in

Riyadh. I saw a picture in a theater newspaper of a young

enlisted woman wearing the abaya and a caption stating

this modeled the proper wear of the religious clothing when

off base.

13. I obtained a copy of the policy from the Joint Task

Force-Southwest Asia Headquarters. The policy was a part

of a regulation proscribing dress and personal appearance.

It was then that I learned that while women are ordered to

wear the Muslim clothing, men were forbidden from

wearing local customary clothing. I was told by the Joint

Task Force-Southwest Asia Headquarters that the policy

had been in effect for a long time, for host nation

sensitivities, and that is was a State Department issue that

the military could do nothing about. In this and other

conversations, no one ever used the term “force protection”

or mentioned safety from assault or prevention of terrorist

attacks as a reasoning for the policy. Its purpose was to

respect the culture of the host nation.

14. I have made many attempts over the past seven

years to bring about a change to these policies. My attempts

to address the abaya policy began in 1995, five years before

I was transferred to Saudi Arabia.

15. I first raised the issue with then Secretary of Defense,

William Perry. Secretary Perry visited our base in Kuwait.

I told my commander I would like to bring the issue up. |

asked Secretary Perry this question: “Sir, you just came

from Saudi Arabia. In your discussions, | was wondering if

there was any consideration to treating female American

soldiers serving in that country with a little bit more

dignity?” I followed up the chain of command in the next

year to see if anyone was taking a serious look at the issue.

I was told they were not, and were simply trying to make

the controversy go away.

16. In 1997, I addressed the issue with the Defense

Advisory Committee on Women in the Services

(DACOWTTS) when I was asked to talk to them about my

experiences as one of the first female fighter pilots. 1

informed them of the abaya policy. They were unaware

that our female troops were forced to wear the Muslim

clothing.

17. Over the next few years, I did more research on the

policy. I discovered that the abaya was not mandatory for

our troops during Desert Storm. Servicewomen were

driving, sitting in the front seat, and wearing American

clothes or uniform. So the policy came into being sometime

between 1992 and 1994.

18. From November of 1999 to November of 2000, I

served on Capitol Hill as a legislative fellow. I talked to

many congressional staffers about the policy. All of them

were unaware of these policies. A congressman on the

International Affairs Committee did an inquiry to the State

Department on the policy. They informed him that it was

not their policy, but a Department of Defense policy.

Additionally, they informed him that they forbid women

from the State Department from wearing the abaya whileon

official duty, since they are representing the United States

government.

19. With this new information, I called the Office of the

Secretary of Defense and eventually talked to Alina

Romanowski, a Deputy Assistant Secretary of Defense for

the Middle East. I asked her about the policy.- She

defended it as being an important part of respecting the

host nation. Her explanation of the policy offered no

discussion about terrorist attack prevention or force

protection. | asked if she was forced to wear an abaya when

she traveled there. She said no, but she chose to put one on

a few times when she went shopping. I expressed how

humiliating it was for our female troops to be ordered to

wear it amongst their male peers, superiors, and

subordinates in western clothes or military uniform. She

told me that perhaps she would feel different about it if she

was stationed over there instead of just visiting, and

suggested a need to review the policy.

20. In the summer of 2000, I discussed my research and

conviction with the Joint Task Force-Southwest Asia

Commander (JTF-SWA Commander), Major General Victor

Renuart, as he was considering me for assignment to Saudi

Arabia. Over ninety-percent of the 5000 people serving in

Saudi Arabia have ninety-day deployments. Key leadership

positions are filled with people assigned on a remote one-

year tour. Although a great job opportunity, I was

immediately concerned about the way servicewomen are

treated in Saudi Arabia. As a Christiar, it was my personal

conviction that I could never put on the Muslim garment. |

told JTF-SWA Commander and informed him of my five

plus year attempt to influence a change in the abaya policy.

21. Major General Victor Renuart initially told me there

was little he could do about the abaya and related policies. |

informed him that the only place that the policy appears in

writing is a local regulation signed by him. I informed him

that the State Department did not mandate the abaya. |

informed him that military spouses were not required to

wear it. I told him I thought it was wrong and it needed to

be changed. I told him if he chose me for the job, it was my

personal conviction for religious reasons to never wear the

outfit. I told him | would continue to urge him to change

the policy, and would not leave the base for leisure until it

changed.

22. Major General Victor Renuart brought me to the

assignment and led me to believe I could possibly influence

a change to the policy from the inside. I was unaware of

whether my job would require me to leave the base, or how

extensively the policy was applied, but I asked him to

respect my conviction. He said, “Yes, come on over, I like

your straightforward nature, and maybe we can get this

policy changed.” I was relieved that I would not have to

wear the abaya to do my job, and believing I could finally

impact a change to the policy from the inside.

23. Shortly thereafter, I asked then Secretary of the Air

Force, Whit Peters, about the policy at a lunch. He was

unaware that the State Department and military policies

were inconsistent. I followed up with a three-page

memorandum sent to him through my chain of command.

We had subsequent discussions where he said he was doing

what he could to address the issue. This attempt to change

the policy was also unsuccessful.

24. Three day prior to my departure to Saudi Arabia, I

received an e-mail from a chaplain friend deployed to

Prince Sultan Air Base. (The Air Operations Center was

initially located at Eskan Village. In August of 2001, we

moved to Prince Sultan Air Base.) Eskan Village does not

have .a runway, so all troops stationed there fly into Prince

Sultan Air Base, and travel by car to Eskan Village. My

friend was very aware of my long-standing conviction on

this issue and was troubled by it himself. He warned me

that I was required to wear the abaya and sit in the back

seat of the car as soon as J got off the plane for the ride to

Eskan Village. I e-mailed over to the Chief of Staff for the

JTF-SWA Commander, reminding him of my earlier

conversation with the General and my personal conviction I

asked him to respect.

25. Two day prior to my departure, I received a

response from the colonel chief of staff and a separate

response from the judge advocate. Both e-mails stated that

wearing the abaya was an order, and that I would follow it

or suffer the punishment for disobeying an ord..r. The USS

Cole attack had just occurred, and for the /sst time, the

abaya policy was connected to safety in their defense of it.

They told me I would not want to endanger the lives of the

enlisted troops driving me over my “crusade.”

26. I landed at Prince Sultan Air Base in the middle of

the night. We were briefed that, due to Saudi customs,

women needed to sit in the back seat of the vehicle and

wear the abaya. I followed the order.

27. Subsequently, I sent Major General Renuart a point

paper recommending an immediate modification of the

policy. Now that I had practical data, I recommended he

make the abaya not mandatory while traveling in a vehicle

between Prince Sultan Air Base and Eskan Village, traveling

to and from the international airport, and traveling to the

Saudi Air Force Headquarters for official business. In that

case, women were forced to wear the abaya over their

military uniform.

28. In December 2000, one month into my twelve-month

tour, | met with my new commander, Major General

Renuart. Major General Renuart brought his colonel judge

advocate general and colonel chief of staff in the room. In

that meeting, I_was criticized about my feelings on this

policy. I was told that the policy would not change. The

general said he thought the cost outweighed the gain and

that he could not change the policy without higher-level

government support.

29. In January 2001, the general ordered me to go back

to the United States for a conference. While in the United

States, I met with my previous commander who had

encouraged me to wear the abaya and try to change the

policy from within the military chain of command. He gave

no indication that he had done anything since our last

meeting, and made general comments about continuing to

pursue it. {[ went back to Saudi, and wore the abaya

through the airport and in the back seat of the car again.

30. I spent another two months in Saudi with no hope

for change. My supervisor began challenging me on my

decisions to delegate off-base duties to my male deputy. He

told me it was a “leadership” issue for me to not go. I

explained it was not right to put me in a position to take a

negative hit on my leadership because of my conviction. He

refused to see the merits of my argument. He criticized me

for my views on the issue. He stated that the issue was not

about American values; the issue was about following an

order.

a1. In March 2001, while in the United States, I was

interviewed by a reporter for USA Today. The reporter

heard about my story on this issue form people on Capitol

Hill. After this interview, | was informed by the colonel

that the general was very angry with me. I responded that I

informed my chain of command as required. The article

came out on the front page of USA Today three weeks later,

the day I was flying back to Saudi.

ae. I was greeted at the airport by my supervisor and

another lieutenant colonel. He handed me a bag with abaya

and abaya headscarf in it and ordered me to put it on. I did

so. From that point on, my work environment was hostile.

The next morning, I was severely criticized by the colonel

for the interview and my stand against the policies at issue.

33. On April 26, 2001, I met with Major General Gary

Dylewski, the new JTF-SWA Commander. He stated he

was conducting a review of the policy.

34. In Saudi Arabia, I was responsible for Combat

Search and Rescue. After we conducted an unprecedented

exercise with the Bahrainis, the Saudis became interested in

exercising with us for the first time. The colonel refused to

let me give the briefing, stating that I would probably

offend them.

35. I was then scheduled for my periodic formal

feedback session with my supervisor. This session was the

first time I had received negative oral and written feedback.

My loyalty was questioned and my professionalism and

leadership were severely criticized.

36. Soon thereafter, Saudi officers were scheduled to

tour the Air Operations Center. Each division director was

responsible for standing in their area and briefing their

responsibilities. I was told by my supervisor that I could

not do the briefing. Instead, my male deputy was told to

give the briefing. I challenged this decision. On the

outside, the military spokespeople were saying I was not

being punished since I did nothing wrong. Ultimately, the

decision was reversed and | was allowed to conduct the

briefing.

a: In August 2001, my. official officer performance

report was due. The Air Force has certain unwritten rules

for the language that must appear in these reports to

advance to higher ranks. For example, in the case of a

lieutenant colonel, the last line of a superior’s comments

must recommend the individual for squadron command. If

that command recommendation is missing, it will have a

negative impact on advancement, especially for an officer

promoted four years ahead of her peers. My supervisor

refused to use the word command anywhere in his

comments. He told me via e-mail that he left it out

specifically because of my choices about the abaya policy

addressed in my feedback session.

38. Also that August, the Air Operations Center was

moved from Eskan Village to Prince Sultan Air Base. All

other directors in similar positions led the effort for their

people in the move by driving on several trips at night to

move equipment while conducting combat operations in the

day. !.c:ld not lead my cell in this move since I could not

drive, and had to rely on my deputy. Moreover, I declined

the option of making several tips with my troops while

riding in the back wearing an abaya. As a result of this

move, I decided that litigation was the only viable means of

changing the policy after six-and-a-half years of trying other

means. | told my chain of command I would file a lawsuit

two weeks later to give fair notice.

39. Two weeks later was the week of September 11,

2001. 1 delayed filing due to the nation’s tragedy. I focused

on my mission for the war the next four months, never

leaving the base. We freed the Afghan people from the

oppression of the Taliban. We watched the women

shedding their abaya-like burqa as a symbol of their new

freedom. It was ironic that the female American troops that

freed them were still subjected to similar oppression while

serving in Saudi.

40. As a practical matter, the tour of duty in Saudi

Arabia is a ninety-day deployment. Over ninety-percent of

the people assigned in Saudi Arabia are temporary duty,

while fewer than ten-percent are there on a permanent

change of station. In the military, two different phrases are

used to characterize the type of duty in different locations.

A move to a new base is referred to using the term

“permanent change of station.” A move involving a short

duty to another base is called a “temporary duty.”

Temporary duty is usually 179 days or less, while a

permanent change of station can be for 180 days or more.

However, a permanent change of station does not

necessarily mean a permanent reassignment to the new

base. Service people are generally stationed in Saudi for a

fixed twelve month tour as a permanent change of station.

41. I am now stationed in Tucson, Arizona as a

permanent change of station. However, I will have another

permanent change of station in the next one-to-three years.

I expect that I will go on several temporary duty

assignments during my Tucson tour.

42. It is highly likely that I will be sent on a temporary

duty back to the Air Operations Center (AOC) in Saudi

Arabia during this assignment. I am in a squadron where

war time tasking is to be a deployable AOC. Therefore, our

personnel are rotating over to the AOC at Prince Sultan Air

Base, due to the unique skills and training we possess to fill

AOC positions. Recently, a short-notice tasking came to our

squadron for a lieutenant colonel with fighter experience. |

was one of three people eligible. I could have volunteered

to return to Saudi Arabia. However, another person

volunteered to go. Due to the fact that all air operations in

the Middle East are run from the AOC, we are told to “have

our bags packed” and be ready for similar taskings in the

near future.

43. In January of 2002, the Department of Defense

decided to change the abaya policy from mandatory to

“strongly encouraged.” The back seat and male escort

“policies were changed from mandatory to “recommended.”

These changes are superficial wording changes instead of a

substantive change that truly treats our people equally and

does not coerce women to wear the abaya. The military is a

unique culture where lines of authority must be respected

and guidance must be unambiguous. Commanders tell the

troops what to do and what not to do in very clear

language. -Four-star generals do not “encourage;” they

order. If they do “strongly encourage,” it is simply an order

using different terminology. This wording change allows

them to attempt to avoid legal oversight, while still coercing

female troops to wear the abaya. | have asked hundreds of

people of all ranks in uniform what they interpret “strongly

encouraged” to mean. Every single person said that it is a

veiled order. Even if a person disagrees with the wearing of

the abaya, they are disobeying the commander’s guidance if

they do not do what is “strongly encouraged.”

44. Loyalty up the chain of command is a tenet of the

military. If a policy is communicated by your superiors,

you are responsible for supporting that policy to your

subordinates. If I go back over to Saudi, I have the

obligation to “strongly encourage” those women below me

in the chain of command to wear the abaya. If I do not wear

it and encourage it, I will be vulnerable to further

retaliation.

I signed this affidavit on 23__day of March, 2002.

Martha E. McSally