Following preliminary motions, Plaintiff Lohrenz filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit on April 11, 2003. Represented this time by Richmond Law School Professor Rodney Smolla, Lohrenz challenged the District Court’s dismissal of her case on CMR’s Motion for Summary Judgment. Among other things, her appeal claims that:

• CMR’s extensive factual recitation of Donnelly’s diligent attempts to verify the truth of the matter prior to publication are “largely irrelevant” to the Plaintiff’s appeal.
• Since Lohrenz had the “sheer bad luck” to be ordered by the Navy to become one of the first two women to fly the F-14, she should not be assigned the status of “public figure.” [The unlikely phrase derives from Dameron v. Washington, one of several precedents on which Judge Lamberth based his opinion.]
• Evidence regarding all issues involved in the case, including Lohrenz’s complaint of “actual malice,” should rightly be presented before a jury.

In response, CMR attorneys Kent Masterson Brown and Frank Northamsubmitted concise arguments supporting the Lamberth opinion, and refuting the baseless complaints of Plaintiff Lohrenz. To summarize: a) Facts cited in CMR’s July 21 Final Brief overwhelmingly support the District Court’s ruling that Lohrenz is a “limited purpose public figure;” b) Donnelly had a First Amendment right to comment on major issues surrounding Lohrenz; and c) The plaintiff cannot present facts supporting her charge that Donnelly wrote untruthfully or did anything with “actual malice.”

Why Lohrenz is a “Limited-Purpose Public Figure”

Prof. Smolla, who seems to be pursuing his own academic agenda, is trying to argue an esoteric point of law without any facts to support his contention. He is asking the Court of Appeals to reverse its own 1986 precedent, Dameron v. Washington, which involved an air traffic controller who was designated a “limited-purpose public figure” when he had the “sheer bad luck” to be on the scene when a commercial aircraft crashed. Now Prof. Smolla is asking the Court to equate Lohrenz with Dameron, even though scores of documents and admissions in her own testimony belie the contention that she was a purely private figure who did nothing to invite notoriety. For example:

• Lohrenz admitted that in 1993 she had listed the F-14 as a desired career goal on her future assignment “dream sheet,” and refused to let her family and colleagues talk her out of it. She also stated in sworn testimony that she was well aware that she was entering the limelight as a pioneer combat pilot. Now Lohrenz is asking the Court to retroactively eliminate the risk of unwelcome publicity that she had knowingly assumed years before.
•  The District Court was correct in identifying Lohrenz as a “limited-purpose public figure,” since controversies over women in combat and double standards in carrier aviation training were reported or commented on in scores of news stories, commentaries, and broadcast reports both before and after the death of Lt. Hultgreen. Many of the news reports made reference to the second female F-14 pilot, Carey Dunai Lohrenz. ²

This case does not revolve around the feelings, actions, and beliefs of Plaintiff Lohrenz alone. The CMR Special Report did not denigrate her, or even mention her name. Rather, the report forthrightly addressed Navy policies and an issue of profound public concern—safety and high, uncompromised standards in naval aviation. ³

• The Plaintiff does not have facts sufficient to overturn the Dameron v. Washington precedent. Acceptance of her argument would require the Court to cordon off from press scrutiny and comment important details of public controversies. That would have a chilling effect on First Amendment rights of free speech, including speech involving the conduct of powerful government institutions such as the United States Navy.

No Evidence of “Actual Malice”

After four major Navy investigations and more than seven years of litigation, not one shred of evidence has been found to support the accusation that Donnelly was pursuing some sort of “preconceived story line” intended to “target Lohrenz” for defeat. ⁴  Donnelly’s initial contact with the source of her information, then-Lt. Patrick J. Burns, USN,was not solicited. Nor did Donnelly act without verifying the truth of the matter before publication.

After writing a detailed letter to the Chairman of the Senate Armed Services Committee on January 16, 1995, Donnelly met once with then-Chief of Naval Operations Adm. Jeremy Boorda, and three times with then-Vice Chief of Naval Operations Adm. Stanley Arthur, in order to ascertain the truth of the information sent by her source. These actions demonstrated diligence and care, not “reckless disregard for the truth.”

• At the final meeting with Adm. Arthur on March 24, 1995, Donnelly was shown the report of an investigation conducted by Rear Adm. Lyle Bien that conceded, with a few minor exceptions, that Donnelly’s facts were “largely accurate.” The District Court found that a defendant’s reliance on reputable or reliable sources precludes a finding of actual malice as a matter of law. CMR contends that the facts presented in the CMR Special Report: Double Standards in Naval Aviation were true and accurate in April 1995 and remain so today. ⁵
• The Field Naval Aviator Evaluation Board (FNAEB) that removed Lohrenz from carrier aviation in May 1995 was replete with references to Lohrenz being an unsafe pilot long before the April 25, 1995, publication date of the CMR Special Report. ⁶ Lohrenz had the opportunity to challenge facts regarding her rocky F-14 training records, which were part of the record considered by the FNAEB, but never did so.

Arguments Before Appeals Court

Many more points of facts and the law are discussed in the final brief filed by CMR attorneys, who remained confident of final victory following oral arguments before the Court of Appeals.

On September 19 a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments and asked questions of attorneys for both sides. Prof. Rodney Smolla, who appeared alone, claimed that Plaintiff Carey Lohrenz should be designated a “private figure” and therefore exempt from public comment or criticism. Lohrenz did not “volunteer” to engage in the public debate, said Smolla. Rather, she was swept up in long-standing controversies about women in combat and training standards only because she had the “sheer bad luck” to wind up as a pioneer F-14 pilot.

In response, CMR lead attorney Kent Masterson Brown directed the attention of the Court to the dozens of interviews given by Lohrenz, going back to CNN in 1993 and many newspapers since then, when she claimed to be fully qualified and competent to fly the F-14 without the benefit of double standards in training. Brown also quoted Justice Lewis Powell, who said that a person does not have to voluntarily enter a public debate in order to be designated a public figure. “The notoriety of your achievements,” said Brown quoting Powell, “can get you there just as easily as being a debater on a stump.”

It is impossible to predict the outcome of any federal court decision simply by listening to the questions and comments of judges, but Brown’s defense of the lower Court’s decision was presented with confidence, skill, and emphasis on the facts. Prof. Smolla, on the other hand, made esoteric, academic arguments that were supported by no evidence whatsoever. Smolla even admitted several times the weaknesses of his arguments and the strengths of CMR’s.

After 7½ years, the cost of defending Elaine Donnelly’s rights of free speech and CMR’s right to exist are approaching $600,000. If justice is done, the Court of Appeals will finally dispose of this malicious litigation—the sooner the better.

* * * * * 

ENDNOTES:

1. The opinion stated that Donnelly had reason to be concerned about the detailed information and training records she received from one of the women’s F-14 instructors. The information demonstrated a pattern of extraordinary concessions to ensure that the women would graduate to the fleet, no matter what. An experienced aviator who reviewed Lohrenz’s training records told Donnelly that they were the worst he had ever seen. The Court further affirmed that Donnelly had the First Amendment right to question the Navy’s public “party line,” which denied the existence of double standards in naval aviation. Even Lohrenz admitted under oath that she was “incredulous” of the Navy’s attempts to convince the nation that Hultgreen’s fatal mishap was primarily due to engine failure, not pilot error. She added that she knew her colleagues, who had seen the mishap videotape, would not believe the story either.

2. In support of the contention that Lohrenz was a limited purpose public figure, CMR submitted or referenced 29 articles, broadcast transcripts, and a television video featuring the two female F-14 pilots. Indeed, Lohrenz was at the very epicenter of the controversy, which intensified after the death of Lt. Hultgreen on October 25, 1994.

3. In her appeal Lohrenz made the absurd argument that the controversy surrounding her did not exist until publication of the CMR Special Report. But in a sworn affidavit signed by Lohrenz’s own counsel in 1997, Susan Barnes, affirmed that “…a lengthy and sometimes acrimonious public debate had preceded [and followed] the repeal of the last statutory bar to the service of women in…combat aviation.” Lohrenz testified that she had appeared on CNN as early as June 1991, and several times after the Navy began assigning women to combat aviation in 1993.

4. For many years Lohrenz and Barnes made the preposterous argument that a shadowy group of disgruntled male aviators had targeted Lohrenz for failure, and that Donnelly was heading the alleged [but non-existent] “Tailhook Underground” conspiracy.

5. The Naval Inspector General’s 1997 Air Wing Eleven Report confirmed that Lohrenz was removed from carrier aviation because of flying techniques that were “unsafe, undisciplined, and unpredictable.”

6. At the time of the FNAEB, Lohrenz ranked 113 of 113 with a substandard 2.69 grade average and an 81% carrier boarding rate. She was on a “watch list” as early as January 3, 1995—prior to Donnelly’s January 16 letter to the Senate. Senior Landing Signal Officers (LSOs) testified that her consistent pattern of flying “high and fast,” combined with her tendency to blame others for her own mistakes and to disregard instructions, made Lohrenz an “accident waiting to happen.”

The Center for Military Readiness is an independent public policy organization that specializes in military personnel issues. More information on Lohrenz v. Donnelly & CMR is available at www.cmrlink.org, under Issues/CMR Lawsuit. The full text of CMR’s Final Brief is available on request from info@cmrlink.org. CMR’s attorney’s, Kent Masterson Brown and Frank Northam, can be reached at Webster, Chamberlain & Bean: (202) 785-9500.