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Judge Orders Witt To Be Reinstated
Major Wittscreamed the headlines just a few days ago, after Judge Leighton handed down his decision in Witt v Air Force, which put the military's Don't Ask, Don't Tell policy on trial.  And we also learned that

... she's eager to rejoin her unit and continue serving as long as troops are in need.

According to the press, you'd think everything is resolved.  She should be back in the Air Force as soon as her uniform is pressed.  Unfortunately it's just not true. That ornery thing called the Federal judicial system is still standing in her way.

I had the opportunity to engage the Director of Communications of the Washington State chapter of the ACLU, Doug Honig.  ACLU of Washington attorneys have represented Major Witt since her case began in 2006.  I asked him a series of questions about what's next for Major Witt.  He was able to consult with their legal team to give me the best answers he could to my questions.

Here is a very lightly edited transcript of the email exchanges I had with him, along with the rationale behind my questions (in italics) and some commentary (normal type).

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In other cases I've paid attention to, there has been a delay between the time the judge announced his decision from the bench and the time the decision was finalized and filed.

JPM: Are will still waiting for Judge Leighton to file the formal decision?

DH: No, the judge has issued a Memorandum Opinion, and Findings of Fact and Conclusions of Law -- both available via our Home Page at www.aclu-wa.org. He has entered his written judgment in the case, too.

Some articles I've read about the original Witt decision from the Ninth Circuit stated that the government had pretty much ignored it -- that they were still discharging service people within the Ninth Circuit's jurisdiction without justifying those discharges.

JPM: What happens if the Air Force simply refuses to reinstate her?

DH: This won't happen. If they want to prevent her from serving, they will ask the appeals court to stay the lower court's reinstatement order when they (the govt) files its notice of appeal -- that would be to the Ninth Circuit. We would oppose the request for a stay, and would expect a speedy ruling from the judge (can't give you an exact time frame).

JPM: Is the government's next step to ask for a temporary injunction suspending the order to reinstate?  If they do not do this, or if an inujnction is denied, then if the government announces plans to appeal regardless, will Major Witt demand to be reinstated immediately?

DH: The govt. can

 a) do nothing, which lets Judge Leighton's ruling go into effect and Major Witt begin serving;
 b) file an appeal to the Ninth Circuit but let Major Witt be reinstated while it is pending; or
 c) file an appeal to the Ninth Circuit + ask the Ninth Circuit to stay the lower court's reinstatement order.

We have no predictions about what they will do, though an appeal will not come as a surprise. They have 60 days (from the judge's entering his judgment) to file a notice of appeal.  Major Witt has said clearly that she wants to resume her service, so she would seek to be return to service quickly; that would happen by the Air Force simply telling her when to show up for duty - no legal process involved.

Well, the Air Force hasn't filed an appeal yet.  Which means the Judge Leighton's order should be the law.  So why can't Major Witt somehow demand to be reinstated right this moment?

JPM: You seem to be saying that Major Witt has to wait for some kind of invitation from the Air Force so that she can come back.  There's nothing she can do to force the Air Force to either take her back or go and try to get an injunction against taking her back?

She just has to sit for up to 60 days while the government decides what to do?

DH: I checked with our legal staff, and they say this is correct because that's the rules of the court for the Ninth Circuit. That Major Witt now has to wait for the "appeals clock" to run is something we have been well aware of and is a non-issue to us.

I still don't quite understand how this works, because in other cases (like Perry v Schwarzenegger, which was also Ninth Circuit) it seems like the judge at least had to issue a temporary stay of his decision so that the defendants could have time to ask the Appeals Court for an stay pending appeal, but maybe the difference is here that the defendant is the government. The important this is that Major Witt in fact can't do anything to get her job back despite her victory.  All she can do is wait.

Major Witt's case has already been heard once by the Ninth Circuit, which remanded it back to District Court.  So where does it go next?

JPM: Can the government appeal the decision back to the Ninth Circuit (since the case has already been there) ?  Or would it get appealed to the Supreme Court?

DH: Yes, they can go back to the Ninth Court for the following legal reason: The original appeal to the Ninth Circuit was by the ACLU over the lower court's denial of our request for a "preliminary injunction" and its acceptance of the govt's motion to dismiss our suit. The new appeal would be over a different matter, the lower's court finding that Witt's presence in the unit would not be detrimental to military needs and the lower's court's order to reinstate.

Issues that could be raised by the govt. would be that the district court's recent fact finding and resultant ruling should not have happened to begin with, because the courts should defer to the military's judgment in questions involving what is best for military readiness and unit cohesion. Or that the courts should defer to Congressional findings in the DADT statute -- predictive judgments that having gay people serve (i.e., serve openly, since we all know gay people already serve) would be detrimental to the military's needs.

JPM: ((So)) If it can be appealed to the Ninth Circuit, can the Ninth Circuit decide to dismiss the case out of hand and affirm the order to reinstate?  Or must there be another delay, followed by a hearing, followed by a decision, followed by a possible appeal to the Supreme Court?

DH: The Ninth Circuit would not dismiss an appeal out of hand but would have briefs submitted, followed by oral argument, followed by a ruling by a 3-judge panel -- which could be appealed to the whole Ninth Circuit ("en banc") or directly to the US Supreme Court, which would have to decide whether to hear the appeal (accepting "certiorari" as it's known; the Supremes get far more appeals submitted than they can hear each year).

Groan.  Okay.  

Let's say that at some point she is, finally, reinstated.  During the case, I know that the Air Force asserted that she had committed adultery and that, even though this was not the or one of the reasons given for her discharge, it should be a factor in the judge's decision (a factor which Judge Leighton dismissed).

JPM: Is there anything to stop the Air Force from immediately beginning discharge proceedings against her on charges of adultery, as brought up in the trial?

DH: My legal folks say this scenario is in practice so unlikely that we wouldn't even try to speculate about it.  

Well that's good news!  Call me paranoid, but I was quite worried about that.

Besides Colonel Fehrenbach's lawsuit (which, because he has not yet been dismissed, is on hold until the military decides what to do), I haven't been able to google up or otherwise find a single other case where a service member has been or is being discharged in the Ninth Circuit's jurisdiction and is contesting that dismissal.

JPM: The Ninth Circuit is a huge area, and includes a large number of military bases. It seems rather astonishing that there would be no other cases, given that the 'Witt Standard' has been in place for more than a year now and I believe hundreds of servicemembers have been discharged in that interval.  I'm not sure I have a question here but it just seems kind of odd.  Can you or the lawyers for this case shed any insight?

DH:  ((No response))

Maybe there are some other cases, but they sure haven't reached the level of public discourse yet. Since there have been hundreds and hundreds of discharges over the last year and a half from the military because of DADT (the original Witt decision occurred in May, 2009), and since it seems likely that a reasonable proportion of them have occurred in the Ninth Circuit's jurisdiction, it sure seems like there should be a few others willing to make a challenge.  

Insofar as I no nothing about this, I will leave it at that.  But it sure does seem strange.

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When will we know anything further? Judge Leighton's decision was handed down on September 24th, 2010.  As Mr. Honig states, the Justice Department has 60 days in which to appeal, meaning that deadline is November 23rd, 2010.  

The government doesn't seem to be in any hurry to decide what to do in other LGBT rights cases (such as Gill, where their 60-day appeals clock runs out October 18th) so I wouldn't expect to hear anything from the government much before the deadline.

And Major Witt, along with you and I, will wait for justice.

Note: If you are interested in other LGBT equal rights cases, you can review their status in a diary I put together a couple of weeks ago.  News about Judge Leighton's decision as the story broke and quotes from the decision can be found here.

Acknowledgement: Thanks so much to Doug Honig for finding information and answering my questions about the case.

Originally posted to jpmassar on Sun Oct 03, 2010 at 02:59 PM PDT.

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