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Posted on Feb 11, 2003 Print this Article

FEMALE PILOT FILES APPEAL TO OVERTURN CMR VICTORY

Feminists who filed a baseless lawsuit against the Center for Military Readiness and Elaine Donnelly in 1996 have not given up on their malicious campaign to silence Donnelly and shut down CMR.

On August 16, 2002, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia dismissed a harassment lawsuit filed against CMR by Plaintiff Carey Dunai Lohrenz, who blames Donnelly for her own failure to succeed as an F-14 pilot in 1995. The victory was gratifying but very costly. Legal costs since 1996 have mounted to more than half a million dollars.

Shortly after Judge Lamberth granted CMR’s Motion for Summary Judgment, Lohrenz filed an appeal with the U.S. District Court of Appeals for the District of Columbia. Her feminist attorney, Susan Barnes of Colorado, is getting help from a new lead counsel, Law Professor Rodney Smolla of the University of Richmond in Virginia.

Prof. Smolla was visible on the national scene last December, when he appeared before the Supreme Court of the United States to defend the First Amendment rights of cross-burners. Justice Clarence Thomas, who rarely speaks during Supreme Court proceedings, took issue with the case presented by Prof. Smolla in defense of cross-burning, a particularly repugnant form of racial intimidation.

Prof. Smolla’s arguments are as ironic as they are unfounded. He is fighting for the First Amendment right of cross-burners to speak lies and hatred, while at the same time trying to deny Donnelly’s right to speak the truth about double standards in naval aviation training.

Months of discovery and deposition testimony have completely refuted the preposterous libel and defamation charges brought by Lohrenz almost seven years ago. It is still possible, however, that the Court of Appeals might decide to order a jury trial, despite solid reasoning in the opinion issued by Judge Lamberth. The burden is on CMR to defend that opinion, and the process will be extremely expensive.

Lawyers have a name for mean-spirited lawsuits such as this. "Strategic Litigation Against Public Participation," known as SLAPP suits, misuse the Courts in order to achieve political objectives. As long as the courthouse door is open, anyone can file papers full of false charges, just to ruin someone else. The tactic is vicious and frequently successful if well-heeled sources—unknown in this case—finance the effort. As soon as the opposition’s papers are filed on or before March 15, the CMR legal team will have to answer their arguments within 30 days.

The Background and Update summary at the end of this article summarizes some of the highlights of Lohrenz v. Donnelly & CMR, which are described in greater detail in previous articles posted under Issues/CMR Lawsuit on www.cmrlink.org. The following are a few examples:

  • In 1997, attorney Susan Barnes signed a false affidavit in a separate lawsuit that Lohrenz filed against the Navy. Barnes asserted that Lohrenz was the "victim" of a "Tailhook Underground" conspiracy—an alleged network of male aviators, supposedly headed by Elaine Donnelly. The concocted story was preposterous, but it worked to extract a $150,000 settlement for Lohrenz, with the condition that she would leave the Navy.
  • In the same year Barnes tried to get the Court to impose a gag order on Donnelly and to prevent the public release of documents produced during discovery. Judge Lamberth rejected that move.
  • In 1998, Lohrenz produced discovery documents that flatly contradicted her own arguments. Among them were complete copies of the Field Naval Aviation Evaluation Board (FNAEB) proceedings, which removed her from carrier aviation due to "high and fast" landing techniques that "scared everyone but her." Contrary to her current claims, Lohrenz stated then that her squadron-mates were fully supportive, and that the FNAEB was justified because her landing scores had fallen below minimum fleet standards.
  • The 1997 Air Wing Eleven Report of the Naval Inspector General confirmed that Lohrenz was on a "watch list" for poor performance in early January 1995. Contrary to Lohrenz’s current claims, that was long before Donnelly published anything.
  • Lohrenz claimed that I had harmed her employment prospects as an airline pilot, but conceded on her first day of deposition testimony that she hadn't even applied for a job.
  • Lohrenz testified that the public had no interest in the competence of female aviators, but retired Adm. Stanley Arthur, former Vice Chief of Naval Operations, testified that naval aviation safety is indeed a serious matter of public concern.
  • Despite years of official denials, Admiral Arthur conceded under cross-examination that "...yes, in the final analysis ... in this case we sent people to the-fleet not qualified."
  • In 1999, the Office of the Navy Judge Advocate General (OJAG) began interfering in the case with arbitrary regulations that violated Donnelly’s rights of due process. Officers demanded the right to delay, limit, or forbid testimony from retired naval officers, to choose expert witnesses for CMR, and to forbid CMR attorneys and Donnelly from talking to any potential witnesses without a JAG officer listening in. These demands were accompanied by threats against active duty or retired Navy officers who failed to comply. And there were no assurances that conversations regarding CMR’s defense would be kept confidential.
  • For the next two years, JAG officers provided extraordinary assistance to Susan Barnes, without notice to CMR attorneys. Navy officials scheduled interviews to help Barnes obtain declarations from a few active duty/reserve and retired naval officers who she thought would be helpful to her case. Restrictions imposed on potential witnesses for CMR were not imposed on those interviewed by Susan Barnes with the help of the Navy JAG.
  • Some of the declarations obtained by Barnes commented on matters that had been strictly forbidden during CMR depositions. And several statements flatly contradicted previous sworn testimony presented by the same officers to the Naval Inspector General in 1996.

These declarations are the flimsy pretext on which Lohrenz has based her appeal. 

CMR attorneys are confident that the Court of Appeals will uphold Judge Lamberth's opinion. There is always a chance, however, that the higher Court could send the case back for a jury trial in Washington D.C.

The Center for Military Readiness is virtually alone in fighting for high, uncompromised standards in naval aviation. Tax deductible contributions to continue the fight are welcome, and can be made by clicking on the “Donate” section of www.cmrlink.org.

* * * * * * *

BACKGROUND AND UPDATE – LOHRENZ v. DONNELLY & CMR – January 2003 

Female Pilot Files Appeal to Overturn CMR Victory 

In 1996, former F-14 pilot Carey D. Lohrenz filed a lawsuit against Elaine Donnelly and the Center for Military Readiness. The complaint accused Donnelly of causing Lohrenz to wash out of carrier aviation because of something that she (Donnelly) wrote. On August 16, 2002, U.S. District Judge Royce C. Lamberth dismissed the case because Lohrenz was a “limited purpose public figure,” and therefore ineligible to sue for defamation or libel.

Judge Lamberth also stated in his opinion that Donnelly had reason to be concerned about the information she received in 1994 from a known source, former F-14 instructor Lt. Patrick J. Burns. Burns contacted Donnelly shortly after the death of Lohrenz’ colleague, Lt. Kara Hultgreen, who crashed her jet and was killed while attempting to land on the carrier U.S.S. Abraham Lincoln in October 1994. Some Navy officials falsely claimed that “engine failure” was the primary cause, but Burns was aware that Hultgreen’s mishap was due glide slope errors for which she had earned unsatisfactory “pink sheets” twice before.

CMR attorneys recently learned that a carrier landing signal officer (LSO) had recommended that Lt. Kara Hultgreen be held back due to performance problems. But in the aftermath of the Tailhook scandal, both women were rushed to the fleet. Lt. Burns, whose warnings about the safety of both women in the F-14 had been ignored by his own chain of command, asked for the help of CMR in conveying his concerns to high-level officials.

In January 1995, Donnelly wrote a detailed letter to then-Senate Armed Services Committee Chairman Sen. Strom Thurmond, and asked for his help. An experienced pilot reviewed training records of Carey Lohrenz, and told Donnelly that her record of major errors was the worst he had ever seen. Adm. Stanley Arthur, then-Vice Chief of Naval Operations, later informed Donnelly that her facts were “largely accurate,” but some Navy officials continued to deny there was a problem.

In April 1995 Donnelly published the 20-page CMR Special Report: Double Standards in Naval Aviation, which was supported by 104 pages of training records and documents. Judge Lamberth ruled that Donnelly had acted “without malice,” and upheld her First Amendment right to advocate high, uncompromised standards in naval aviation training.

Lohrenz and her feminist attorney, Susan Barnes of Colorado, blamed Donnelly for Lohrenz’s chronic problems as a pilot, and claimed that the CMR Special Report had caused Lohrenz to “lose confidence” and fail. On the contrary, the Naval Inspector General’s 1997 Air Wing Eleven Report confirmed that Lohrenz had been removed from carrier aviation because of flying techniques that were “unsafe, undisciplined, and unpredictable.” Additional records show that Lohrenz was performing poorly long before Donnelly published anything.

Shortly after CMR’s Motion for Summary Judgment was granted, a new lead attorney for Plaintiff Lohrenz, University of Richmond Law Prof. Rodney Smolla, filed an appeal with the District Court of Appeals for the District of Columbia. This is the same Prof. Smolla who made national news late in 2002 by appearing before the Supreme Court on behalf of cross burners.

CMR attorney Kent Masterson Brown, of counsel with Webster, Chamberlain & Bean in Washington D.C., is confident that the Lohrenz appeal will be no more successful than the original baseless complaint. He described the Lamberth opinion as a great victory for the First Amendment, which will be upheld and cited for years to come.

* * * * * * *

For more information, see numerous articles posted at www.cmrlink.org. Tax-deductible contributions to the CMR Legal Defense Fund can be made electronically through the website, or by mail at CMR/LDF, P.O. Box 51600, Livonia, Michigan 48151. CMR is an independent public policy organization that specializes in military personnel issues.

Posted on Feb 11, 2003 Print this Article