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DOJ Appeals Witt’s Reinstatement, But Will Not Prevent Her From Serving During Process

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"DOJ Appeals Witt’s Reinstatement, But Will Not Prevent Her From Serving During Process"


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Moments ago, the Justice Department appealed a federal district court ruling reinstating Air Force Major Margaret Witt after she was discharged from the military under Don’t Ask, Don’t Tell to Ninth Circuit Court of Appeals. But the government did not ask the court to stay the decision — suggesting that Witt will be able to serve in the Air Force through the duration of the appeal process.

Back in September, Judge Ronald B. Leighton of the United States District Court for the Western District of Washington found that the policy “violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.” “She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable,” he concluded.

Today, the government filed a simple 3 page notice of appeal:

NOTICE IS HEREBY GIVEN that all Defendants hereby appeal to the United States Court of Appeals for the Ninth Circuit from the Judgment dated September 24, 2010 (Docket Nos. 166, 165), the Findings of Facts and Conclusions of Law dated September 24, 2010 (Docket No. 164), the Memorandum Opinion dated September 24, 2010 (Docket No. 163), as well as the Minute Order dated March 12, 2010 (Docket No. 70).

Interestingly, Leighton dismissed Witt’s case in 2006, only to be overruled by the 9th Circuit Court of Appeals in 2008. That decision established a new precedent (called the Witt standard) which prevented the military from discharging servicemembers under the policy in that circuit unless it could prove that it furthered military goals. The federal government did not appeal that decision and the Ninth Circuit sent the case back to Leighton and on September 24th, he ruled that the government did not meet that burden of proof.

The government’s decision not to request a stay from the Ninth Circuit is significant, however, because it could allow Witt back into the Air Force and save the government a trip to the Supreme Court. After all, a stay request to the very same court that established the Witt standard would have likely been denied, forcing the government to appeal the decision before Justice Kennedy, who decides appeals for the Ninth Circuit. From their, the outcome would have been very uncertain.

Witt has previously said that was “ready” to return back to her job as a nurse in the Air Force and predicted that her unit would welcome her with open arms. “The people in my unit has been behind me 100 percent. You know, I think the most recent statistics are something like 65,000 [gay or lesbian] people are serving every day. All we want to do is our job, so all I want to do is my job. And I think they’ll welcome me back for that,” she told MSNBC in September.


Josh Gerstein has this statement from White House Press Secretary Robert Gibbs:

“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,” Gibbs wrote. “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.”


,Witt has issued the following statement:

“I am thrilled to be able to serve in the Air Force again,” Witt said in a Tuesday statement circulated by the American Civil Liberties Union of Washington, which litigated her case. “The men and women in the unit are like family members to me, and I’ve been waiting a long time to rejoin them. Thousands of men and women who are gay and lesbian honorably serve this country in our military. Many people forget that the U.S. military is the most diverse workforce in the world — we are extremely versed in adaptation.”



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