DADT and Major Witt: The Third Act is About to Begin.

Posted on 23 Nov 2010 at 2:45am

DADT and Major Witt:  The Third Act is About to Begin.

Tomorrow the Obama Administration and its Department of Justice must decide yet again whether to appeal a Don’t Ask, Don’t Tell court case they have lost. The sixty-day period the government had to appeal Witt v. Department of the Air Force which began on September 24th, is at its end.

Major Witt

The Witt case is a bit hard to understand, but hang in there with me.
So far, two acts of what look to be a three act play have been performed:

The main scene of Act I took place at the Ninth Circuit Court of Appeals as it ruled, in May 2008, that Don’t Ask, Don’t Tell was unconstitutional as written — only if the government could show actual harm to a unit in terms of its cohesion could a member be discharged.  

When the government chose not to appeal this ruling to the Supreme Court, this so-called  Witt standard became the law of the territory of the United States assigned to the Ninth Circuit. In theory, anyone discharged under Don’t Ask, Don’t Tell in CA, OR, WA, AK, HI, NV, AZ, ID, MT, Guam, or the Marianas could challenge their dismissal under this new standard. Major Witt’s challenge was then remanded to the Washington District Court to reconsider the specific circumstances under which she was discharged in light of the ruling.

In Act II, Judge Leighton heard the case and, applying the Ninth Circuit’s decision specifically to Major Witt’s circumstances, issued his verdict and further ordered that Major Witt be reinstated into the Air Force. He ruled that her discharge was unconstitutional because the Air Force had failed to demonstrate any benefit to “unit cohesion” or any other benefit resulting from her forced exit. This decision was handed on September 24th of this year.

As I reported in What’s Next for Major Witt, this was not quite the victory it seemed. All Major Witt could do was sit at home and wait for the government to raise the curtain on its decision on whether to appeal.

Tomorrow, the curtain gets raised and Act III begins.

The government could choose not to appeal — a path that is extremely unlikely given the administration’s insistence so far on appealing all similar cases. But if it chooses not to, Major Witt should be readmitted into the Air Force forthwith. The play would end abruptly, but happily. (This would not affect any other discharges because the decision by Judge Leighton applies only to Major Witt. Anyone else wanting to contest a possible dismissal on the basis of the Witt Standard would have to seek their own legal challenge.  To my knowledge, no one else has done so except for Colonel Fehrenbach, who filed for an injunction to prevent his discharge under DADT; the Air Force is still considering his case.)

In the likely event that there is an appeal, we will be in for many more scenes: another round of requests for stays, requests for denials of stays, and likely more drama at the Supreme Court.

Once the government announces an appeal to the Ninth Circuit, they will have to ask for a stay of Judge Leighton’s order; otherwise the Air Force would presumably be forced to let Major Witt serve her country immediately (a tragedy to some, but likely not to the audience, who would cheer).

Unlike in Log Cabin Republicans v. United States, which tread on previously uncovered territory (the constitutionality of DADT under any circumstance), Judge Leighton’s decision is simply a straightforward application of a ruling handed down by the Ninth Circuit itself.  Therefore, to a layman’s understanding of how stays work, it is hard to see how that same Ninth Circuit could rationalize issuing a permanent stay of Judge Leighton’s order pending an appellate hearing.

Assuming the Ninth Circuit takes its Witt decision to heart and denies a stay request, the government will presumably appeal the denial-of-stay decision to the Supreme Court — just as LCR attorneys appealed the unfavorable stay decision they received from the Ninth.  But while it was pretty clear what the Supreme Court was going to do in Log Cabin Republicans (uphold the Ninth Circuit-issued stay, which they did), it is not at all clear what will happen here.

As with LCR, the request for a stay will first go to Judge Kennedy (assigned to handle stay requests for all Ninth Circuit appeals). He can agree to the stay, deny it or refer the decision to the entire Supreme Court.

If no stay is ultimately granted, Major Witt would presumably be reinstated pending appeal. She would serve the entire time it took for this case to be scheduled, heard and decided — likely more than a year.  If DADT were not to be repealed, and she ultimately lost the case, she would then be re-discharged!

Even if the Senate were to pass the NDAA with Don’t Ask, Don’t Tell repeal in it and it was signed by the President, Major Witt’s case would still not necessarily be moot. The repeal of DADT only goes into effect 60 days after the President, the Secretary of Defense and Admiral Mullen certify the report. Even then the Department of Defense would still have the authority to dismiss homosexuals at will until and unless new regulations were issued. All repeal will do is take away the statutory requirement that they be dismissed, not the legality of doing so.  The government could, in theory, continue to argue that Major Witt was correctly dismissed and should remain so.

Who knows? Perhaps three acts will not be enough.

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Quote from Judge Leighton’s decision:


The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect.

The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find. The evidence clearly supports the plaintiff’s assertion that the reinstatement of Major Witt would not adversely affect the morale or unit cohesion of the 446th AES. The only evidence to the contrary comes in the form of survey responses and preference polls.

Witt Lawsuit Timeline:

  • April 2006: Witt files suit in United States District Court.
  • Fall, 2007: Witt’s case is dismissed by the District Court. She appeals to the Ninth Circuit.
  • November 5, 2007: Oral arguments are heard by a three judge panel of the Ninth Circuit.
  • May 21, 2008: Decision is handed down.
  • May 3, 2009:  The government declines to appeal, leaving Witt as binding on the Ninth Circuit. The case is remanded back to District Court for trial under this new standard.
  • September 13, 2010:  Witt’s case began anew in District Court.
  • September 21, 2010:  Trial ends.  Judge Leighton announces a decision to be handed down September 24, 2010.
  • September 24, 2010: Judge Leighton hands down his decision.
  • November 23, 2010: Decision by government to appeal or not is due

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