BREAKING: DOJ to Appeal Witt Reinstatement Order

Posted by Chris Geidner
November 23, 2010 6:15 PM |

In a brief filing in the U.S. District Court for the Western District of Washington, the U.S. Department of Justice filed the formal documents to announce that it plans to appeal the trial judge's order in Witt v. U.S. Department of the Air Force.

On Sept. 24, U.S. District Court Ronald Leighton ruled that the Air Force's discharge of Major Margaret Witt under DADT violated her constitutional rights. He wrote:

[T]he Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and  cohesion. If DADT does not significantly further an important government interest ... it cannot be necessary to further that interest .... Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

In October, the Department of Justice also opposed Witt's request for costs, in part, because "Defendants' time for noticing an appeal of the Court’s September 24, 2010 decision does not expire until November 23, 2010, and, accordingly, this matter has not been finally resolved in plaintiff's favor."

With today's filing, DOJ stated in a docketing statement required to be filed with the Notice of Appeal that the principal issue to be raised on appeal is:

Whether plaintiff's discharge pursuant to 10 U.S.C 654 and its implementing regulations was constitutional and whether plaintiff should have been ordered reinstated to the military, subject to meeting applicable requirements respecting qualifications for continued service.

In a statement issued by the White House moments after the filing, Press Secretary Robert Gibbs said:

"Today, the Department of Justice filed a notice of appeal in a case involving a legal challenge to the Don’t Ask, Don’t Tell (DADT) policy, as the Department traditionally does when acts of Congress have been held unconstitutional.  This filing in no way diminishes the President’s -- and his Administration’s -- firm commitment to achieving a legislative repeal of DADT this year.  Indeed, it clearly shows why Congress must act to end this misguided policy.  In recent weeks, the President and other Administration officials have been working with the Senate to move forward with the passage of the National Defense Authorization Act, including a repeal of DADT, during the lame duck."

[UPDATE @ 7:10 PM: As Wonk Room's Igor Volsky points out, DOJ did not today seek -- and had not previously sought -- a stay of the ruling. The circumstances of this case, where only Witt is impacted, are very different from the circumstances in the Log Cabin Republicans v. United States case, where U.S. District Court Judge Virginia Phillips placed a worldwide injunction on enforcement of DADT. As such, DOJ might have just determined a stay was not necessary.

Additionally, the circumstance of Witt's case and judgment in the case -- which stated that "[s]he should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service" -- does not make it appear likely that Witt would be returning to her position immediately. From Leighton's Sept. 24 ruling:

The government argues that the Air Force cannot "assign to the Reserve . . . a nurse who does not actively practice nursing." Air Force Instruction (AFI) 36-2115, ¶ 1.11.5.  The regulation quantifies what it means to be actively practicing nursing by prescribing a minimum of 180 hours active engagement in nursing per calendar year. Plaintiff concedes that she does not currently meet that experience requirement. If she chooses to resume her duties within the 446th AES, she must meet the proficiency requirements to the same extent and in the same manner that other flight nurses in the 446th have met those same requirements.

Accordingly, it is entirely possible that the government did not seek a stay in this case because, practically, it is not necessary.]

[FURTHER UPDATE @ 7:45 PM: Or, perhaps it is just a determination by DOJ that seeking a stay for Witt alone is not necessary or wise. Sarah Dunne, one of Witt's attorneys with the ACLU of Washington, writes:

"As far as we're concerned, while we are disappointed with DOJ's decision to appeal the ruling, we are thrilled that Major Witt will be returning to her unit and we are in the process of arranging this with the government."

As for more details about whether Witt now meets the "experience requirement," Dunne said only that there will be a press conference next Tuesday at the ACLU of Washington. Dunne tells Metro Weekly that Witt will be participating in the news conference and that they will explain "what is required and how she has met the requirements."]

Read the Notice of Appeal: WittNoticeOfAppeal.pdf

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