From Servicemember's Legal Defense Network:
BREAKING UPDATE: U.S. Dept. of Justice, U.S. Air Force Reach Federal Court Agreement with Lt. Col. Victor Fehrenbach. The highly decorated combat Air Force Aviator filed injunction in Federal Court to block "Don’t Ask, Don’t Tell" discharge
More from the SLDN Press release:
WASHINGTON, D.C. – Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP, representing their client, Lt. Col. Victor Fehrenbach, reached an agreement today with the U.S. District Court for the District of Idaho, U.S. Department of Justice, and the U.S. Air Force, on the pending request for a temporary restraining order. The agreement prevents the Air Force from discharging Lt. Col. Fehrenbach under "Don’t Ask, Don’t Tell" (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly, until the Court can schedule a hearing on the motion for a preliminary injunction. Attorneys for Lt. Col. Fehrenbach filed a motion in U.S. District Court for the District of Idaho last Wednesday seeking a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders "morale, good order and discipline, and unit cohesion."
Statement by Morrison & Foerster’s M. Andrew Woodmansee:
"This is exactly what we asked the Court to do in our motion on Wednesday, and we are pleased that the Air Force has agreed to preserve the status quo until we can have a full hearing. Of course, we continue to hope that the Air Force will do the right thing and let this war hero continue to serve this country."
Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:
"The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job. This agreement is a victory for Lt. Col. Fehrenbach and our nation. The Air Force can still do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own revised regulations on ‘Don’t Ask, Don’t Tell.’ The Senate needs to act next month to get rid of this antiquated law that dishonors some of our finest and most talented service members."
To read the agreement as filed in U.S. District Court for the District of Idaho visit: http://bit.ly/...
Some background from SLDN
Highly Decorated Combat Air Force Aviator Files Injunction in Federal Court to Block "Don’t Ask, Don’t Tell" Discharge
Air Force Secretary has window of opportunity to reverse board’s recommendation under "Don’t Ask, Don’t Tell"; New Pentagon Instructions show clear path to retain Lt. Col. Victor Fehrenbach
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Lt. Col. Fehrenbach is 13 months from 20-year retirement
www.SLDN.org/Victor
WASHINGTON, D.C. – Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP filed a request for a temporary restraining order today on behalf of their client, Lt. Col. Victor Fehrenbach, seeking to block the Air Force from discharging him under "Don’t Ask, Don’t Tell" (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly. The filing in the United States District Court for the District of Idaho, seeks a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders "morale, good order and discipline, and unit cohesion."
The General Counsel’s Office to the Secretary of the Air Force confirmed to Morrison & Foerster and SLDN that the Air Force Personnel Board recently reviewed Lt. Col. Fehrenbach’s case and has sent a recommendation to Air Force Secretary Michael B. Donley’s designee. According to Air Force regulations, had the Board recommended to retain Lt. Col. Fehrenbach no further action would have been required by the Secretary or his designee (AFI 36-3206 Chapter 6.10 and Chapter 6.10.1). Although SLDN and Morrison & Foerster understand the Secretary has delegated his authority to act on the Board’s recommendation, Secretary Donley has the power to step in and retain Lt. Col. Fehrenbach. Without action by the Secretary, the Board’s recommendation is expected to stand and Lt. Col. Fehrenbach could be discharged within days.
A request for a temporary restraining order asks the court to prevent irreparable injury to the plaintiff and preserve the status quo until a more complete hearing can be held on the merits of the case. If the court grants the request, the Air Force will be prevented from discharging Lt. Col. Fehrenbach until a full hearing can be scheduled. The Fehrenbach case is among the first to challenge a discharge under DADT by applying the so-called Witt standard. In the case of Air Force Maj. Margaret Witt, the United States Court of Appeals for the Ninth Circuit – which governs the District of Idaho – held that discharging a service member violates the Constitution unless: (1) the government advances "an important governmental interest;" (2) the government shows the intrusion "upon the personal and private li[fe]" of a service member "significantly furthers that interest;" and (3) the government shows the intrusion is "necessary to further that interest."
Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:
"Our nation is on the verge of firing a highly decorated combat aviator, an American hero. The Air Force Secretary can do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own recently revised regulations on ‘Don’t Ask, Don’t Tell.’ Lt. Col. Fehrenbach signed up nearly 19 years ago willing to risk all and die for his country, flying nearly 90 combat missions in Iraq, Afghanistan, and Kosovo. Why and how the hell do we end up firing our best and brightest when we’re fighting in two wars? If Secretary Donley does not step in, this nation will lose a service member worth $25 million in training whose skill sets are desperately needed today. The discharge of Lt. Col. Fehrenbach would dramatically underscore that ‘Don’t Ask, Don’t Tell’ is still the law and all gay and lesbian service members should be on notice. Clearly there is an urgent need for the Senate to act on legislation currently pending that would allow for repeal."
Statement by Morrison & Foerster’s M. Andrew Woodmansee:
"The Air Force's pending discharge of Lt. Col. Fehrenbach does not pass muster under the United States Constitution. The Air Force did not prove—as it was required to—that his continued service hurts morale, good order and discipline, and unit cohesion. They can’t prove it because it isn’t true. Even while under investigation for the past two years, Lt. Col. Fehrenbach continues to be highly regarded by fellow officers and continues to receive excellent evaluations from his commanders. As a combat-seasoned aviator, he is exactly the type of person this country needs while fighting two wars. He should be overseas fighting for his country right now, but instead he has been fighting the Air Force because of this unconstitutional law."
Statement by Lt. Col. Victor Fehrenbach:
"I have been waiting more than two years for the Air Force to do the right thing by letting me continue to proudly serve my country. To say that I’m disappointed with where things stand would be a monumental understatement. I have given my entire adult life to the Air Force that I love. I have deployed six times and risked my life for my country. In the two years that I’ve been sitting at my desk rather than inside my jet, I’ve offered to deploy numerous times. I’m ready, willing, and able to deploy tomorrow, but I’m barred from deployment, because of this unjust, discriminatory law. Meanwhile, moms and dads, sons and daughters, and my friends go back for the third, fourth, fifth deployments. While our country is engaged in two wars, my service is needed now more than ever."
Many people will remember Victor Fehrenbach from his appearance last week on Rachel Maddow Show:
My happiness for Lt Col Fehrenbach is tempered by the reality that he is one man. A man with extraordinary skills and record. But merely one man and this is one discharge order.
A 1,000 other soldiers have been fired for being gay under this administration's watch. What about them?
But what about Jarod McIntosh? Way down the pay grade scale, this ordinary sailor too, continues to fight his discharge.
What about the 1000 other good soldiers that have been discharged under the Obama administration?
Is this how it's going to be for the next six months? A year? Will we be fighting every discharge order on the TV machine. Will only the most extraordinary soldiers, the ones without publicists to call Rachel Maddow for a slot, will they be spared?
End the discharges entirely. End DADT.
Update 1:
As Joe Sudbay points out, this once again places the Obama Justice Department in the position of going to court, to defend the government's right to fire soldiers for being gay. Sigh...
Yes, the Obama administration's DOJ will be fighting in court to kick Fehrenbach out of the military.
Another reason this slow-walk approach is so ill-advised.
Update 2:
More on this from Chris Geidner at Metro Weekly. The reprieve for Lt Col Fehrenbach is 21 days long, it was apparently voluntary, not mandated by a judge:
In a joint agreement filed today in U.S. District Court for the District of Idaho, lawyers for Lt. Col. Victor Fehrenbach and the U.S. Air Force agreed that the Air Force will notify Fehrenbach's lawyers on the "same day that the Secretary of the Air Force or his designee has made a decision whether to discharge Plaintiff" Fehrenbach, which cannot be before August 27.
The Air Force lawyers in the Department of Justice then agreed not to "take any steps to execute or process Plaintiff's discharge or separation ... for 21 days following such notification." This agreement will allow the court time to consider Fehrenbach's request that the court put a hold, or injunction, on any discharge.
It is hoped by Fehrenbach's team a hearing on his motion can be held in the next week. The hearing will no doubt be uncomfortable for the DOJ, Air Force. They will be tasked with arguing against the Witt standard set up by the Ninth Circuit, which indicated discharges needed to be justified by demonstrating--with evidence--an LGB servicemember was detrimental to "unit cohesion." The alternative to getting around that is presumably arguing, "We can fire gays just because we wanna." Not pretty.
A PDF of the agreement is here.