Friday, December 12, 2003

A U.S. appeals court yesterday upheld the dismissal of a libel suit brought by a former Navy pilot against Elaine Donnelly and her Center for Military Readiness.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled unanimously that District Court Judge Royce C. Lamberth correctly threw out the suit brought by Carey Dunai Lohrenz.

The ruling promises to end a contentious 7-year-old court battle that focused on the standards the Navy applied to women pilots in 1993-94 when it lifted the ban on female combat pilots. Yesterday’s decision also is a boost to journalists. It reaffirms that a reporter must not wait for a subject to OK the release of information before writing a story.

“The thing that’s amazing about this ruling is that the judge reaffirms every thing we have been saying all along,” said Mrs. Donnelly. “I did have my facts straight. I’m now totally vindicated because the court recognized I had the right to differ from the official statements of the Navy because I had all the facts I needed.”

Mrs. Donnelly, an opponent of women in combat, issued a report in 1995 accusing the Navy of providing extra favors to Mrs. Lohrenz, then a lieutenant, to ensure she qualified as the first woman F-14 fighter pilot. Much of her report was based on Mrs. Lohrenz’s training records provided by one of her instructors, now-retired Lt. Patrick J. Burns. The Navy eventually removed Mrs. Lohrenz from the carrier Abraham Lincoln for what it said was unsafe flying. She filed a libel suit against Mrs. Donnelly in 1996, springing the long legal fight.

“This was abuse of the court system but it was worth it,” said Mrs. Donnelly, who estimates she has spent $600,000 in legal fees. “It defends my right to advocate high, uncompromising standards for everyone in naval aviation training. That’s what I had to fight for. I hope reporters who do stories like this appreciate this.”

Kent Masterson Brown, Mrs. Donnelly’s attorney, said Mrs. Lohrenz’s legal team has two avenues left for appeal — none of which, he says, will succeed. One is to ask the full U.S. Court of Appeals to hear the case.

“That will not succeed,” Mr. Brown said. “I can tell you with 100 percent certainty it will not.” This is because appeals courts rarely rehear unanimous decisions, he said.

Mrs. Lohrenz could opt instead to ask the U.S. Supreme Court to take the case. But, since yesterday’s ruling relied on a previous appeals ruling the high court has refused to overturn, that prospect too appears doomed.

Rodney A. Smolla, who argued Mrs. Lohrenz’s case before the appeals court in September, said he “very likely” will seek one of those two appeal routes. “Obviously we were disappointed,” he said. “We thought Carey Lohrenz didn’t deserve to be classified as a public figure.”

Whether Mrs. Lohrenz was a public figure in 1994 is the case’s key issue. Judge Lamberth ruled that her volunteering to becoming a pioneering women pilot thrust her into public figure status. As such, she must not only prove that Mrs. Donnelly’s report was false, but also that she showed actual malice and a reckless disregard for the truth.

The appeals court ruled that Mrs. Lohrenz was, in fact, a public figure. The opinion also strongly suggested that what Mrs. Donnelly wrote was true.

“The information that Donnelly and CMR received reasonably led them not to investigate allegedly contradictory evidence,” said Judge Judith W. Rogers, who wrote the unanimous opinion. “By the time Donnelly published The Donnelly Report, she had additional information from the Navy that appeared to confirm much of what Lt. Burns had told her about Lt. Lohrenz.”

Concurring in the opinion were Judges Laurence Silberman and John G. Roberts.

Judge Rogers wrote, “By the time she published The Donnelly Report, Donnelly also had portions of Lt. Lohrenz’s training records that supported Lt. Burns’ assertions that the Navy made special accommodations for Lt. Lohrenz.”

On Mrs. Lohrenz’s argument that she was no a public figure, the opinion states, “Lohrenz’s contention that she was, in effect, an anonymous Navy pilot, rings hallow as there is no evidence to support such a conclusion.”

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