Witt

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARET WITT, Major,  Plaintiff-Appellant, v. DEPARTMENT OF THE AIR FORCE; No. 06-35644 ROBERT M. GATES,* Secretary of Defense; MICHAEL W. WYNNE,  D.C. No.

CV-06-05195-RBL

Secretary, Department of the Air Force; MARY L. WALKER, Colonel, OPINION Commander, 446th Aeromedical Evacuation Squadron, McChord

AFB,

Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted November 5, 2007—Seattle, Washington

Filed May 21, 2008

Before: William C. Canby, Senior Circuit Judge, Susan P. Graber, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould; Partial Concurrence and Partial Dissent by Judge Canby

*Robert M. Gates is substituted for his predecessor Donald H. Rumsfeld as Secretary of Defense. Fed. R. App. P. 43(c)(2). COUNSEL

James E. Lobsenz, Carney Badley Spellman, P.S., Seattle, Washington, for the appellant.

Aaron H. Caplan, ACLU of Washington, Seattle, Washington, for the…