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Tuesday, December 14, 2010

Three Discharged Servicemembers File Federal Lawsuit to be Re-Instated

By Karen Ocamb -

Former Sgt. Tony Loverde
Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP announced Monday, Dec. 13, that they have filed a complaint in federal court seeking the re-instatement of three servicemembers discharged under “Don’t Ask, Don’t Tell.”
According to the AP’s Lisa Leff, the suit filed in U.S. District Court in San Francisco also seeks to pressure the Senate to repeal the 17-year-old DADT, which is now a standalone bill introduced by Republican Susan Collins and independent Sen. Joe Lieberman. Colorado Sen. Mark Udall and California Sen. Dianne Feinstein are also strong backers of the new bill, stripped out of the National Defense Authorization Act in hopes of getting the repeal passed before Congress adjourns for the holidays.  (Please see Adam Bink’s in-depth story over at Prop 8 Trial Tracker.)
SLDN director Aubrey Sarvis said in a statement that the lawsuit is intended as “the first shot over the bow” – if lawmakers don’t repeal DADT, the courts look poised to do it. That prospect frightens Sec. Gates and the Pentagon, given the confusion that happened after U.S. District Judge Virginia Phillips struck down DADT last September ruling in Log Cabin Republicans v. the United States. Phillips then issued a worldwide injunction against enforcement of DADT – which threw the military into disarray as they tried to figure out what to do. DADT was officially dead for about a week before the 9th U.S. Circuit Court of Appeals stayed Phillips’ order.
“If the Senate fails to act in the lame duck session, we are prepared to litigate this aggressively,” said Sarvis said.

Former Maj. Mike Almy
The new lawsuit also seeks to have DADT declared unconstitutional and therefore unenforceable under the Witt standard against individual service members. The Justice Department has appealed the court-ordered re-instatement of Maj. Margaret Witt, however. The SLDN lawsuit was filed on behalf of 31-year-old Loverde, who is in Iraq working for a private military contractor; former Air Force Maj. Michael Almy, 40, and former Navy Petty Officer Second Class Jason Knight, 28.
“I don’t feel like I’m going up against the military, I really don’t. I just feel like this is a necessary step for doing away with this policy,” former Air Force Staff Sgt. Anthony Loverde to Leff. “I believe the military, the majority of troops I’ve served with, and those who have been studied to death are with us.”
Dan Woods, partner in White & Case, the law firm that has been litigating the Log Cabin Republican’s federal lawsuit pro bono since 2004, told LGBT POV:
“Major Almy and Sgt. Loverde were witnesses at our trial and the court’s opinion in our case described their testimony and praised their credibility so our lawsuit has helped theirs.  We were aware that this was coming and have had conversations with Major Almy and the lawyers for the three service members.  Their lawsuit should not have any direct impact on ours, although it may provide additional ammunition to those seeking repeal in Congress.  The update on our case is straighforward:  we won, the government appealed, and the government’s opening brief is due January 24.
If repeal does not pass in this Congress, there are many possibilities, one of which might be to ask the government to withdraw its appeal but the chance of that happening would be slim, in my view.”
The SLDN press release:
Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP filed a complaint today against the United States government asking for the reinstatement of three service members discharged under “Don’t Ask, Don’t Tell” (DADT), the discriminatory law barring gay, lesbian and bisexual service members from serving honestly and with integrity.  The filing in the United States District Court for the Northern District of California, also argues the current law and the regulations, policies, and guidance that implement it, are unconstitutional.  To read the filing visit:

Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:
“This filing is a shot across the bow as we prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law.  This dispute can be resolved by Congress or by the courts.  With this filing we put Congress on notice that a cadre of service members and our national legal team stand ready to litigate strategically around the country.  The plaintiffs are three service members who want to serve their country again.  They represent some of our best and brightest who were fired because of who they are, despite their decorated records.  More than 14,000 have already lost their jobs and the investigations and discharges still continue.  We are also preparing litigation on behalf of young people who would enter the armed forces to serve our country but for this terrible law.  Another suit we’re working on involves clients discharged under ‘Don’t Ask’ who want to enter the reserves or a guard unit, and we plan to file such cases early next year if Congress fails to act.  Clearly there is an urgent need for the Senate to act on legislation this week.”
Statement by Morrison & Foerster’s M. Andrew Woodmansee:
“Today we are asking the Court to allow these three brave Americans to fulfill the commitment they made years ago when they joined the military.  They simply want to serve their country, and it is fundamentally un-American to refuse their service merely because they are gay — especially when our all-volunteer military is stretched thin as we fight wars in both Iraq and Afghanistan.  Throughout our nation’s history, citizens have turned to the courts to remedy injustices when Congress would not act.  If the Senate will not meet its obligations by ending this unconstitutional law, we will ask the Court to step in to protect the rights of my clients as well as all men and women who wish to serve this country in the military.”

Plaintiff Michael D. Almy served for thirteen years in the United States Air Force, including four deployments to the Middle East.  He is a highly trained communications officer.  During his thirteen-year Air Force career, former Major Almy received numerous military awards and decorations.  In 2006, he was discharged from the Air Force under DADT.
Former Petty Officer Jason Knight
Plaintiff Anthony J. Loverde served for seven years in the Air Force.  He is a trained C-130 Loadmaster and Precision Measurement Equipment Laboratory Technician.  During his seven-year Air Force career, former Staff Sergeant Loverde received numerous military awards and decorations.  In 2008, he was discharged from the Air Force under DADT.  He is currently a contractor serving in Iraq, doing effectively the same job with many of his old coworkers, as an openly gay man.

Plaintiff Jason D. Knight served for a total of five years in the United States Navy.  He is a trained Cryptological Technician Interpretive, Linguist.  During his five-year Navy career, former Petty Officer Second Class Knight received numerous military awards and decorations.  Mr. Knight has the unique distinction of being discharged twice under DADT.  In 2005, he was discharged from the Navy under DADT.  Mr. Knight was recalled to active duty in 2006 but was discharged again in 2007 under DADT.

–Distinguished graduate,  Air Force ROTC  – 1992
–Officer of the Year for the entire group – 1999
–Air Force Achievement Medal – April 1999
–Air Force Commendation Medal – 1998
–Air Force Commendation Medal – February 2000
–Air Force Commendation Medal – October 2001
–Joint Service Commendation Medal – July 2003
–2004 Lt. Gen. Leo Marquez Communications-Electronics Award, Field Grade Manager Category
–Air Medal with 1 oak leaf cluster
–Air Force Commendation Medal
–Air Force Outstanding Unit Award with 3 oak leaf clusters
–Air Force Good Conduct Medal
–National Defense Service Medal
–Global War on Terrorism Service Medal
–Air Force Overseas Ribbon: Long
–Air Force Expeditionary Service Ribbon with Gold Border
–Air Force Longevity Service
–Air Force NCO PME Graduate Ribbon
–Small Arms Expert Marksmanship Ribbon with 1 service star
–Air Force Training Ribbon
–Distinguished Graduate, Basic Loadmaster Course
–Distinguished Graduate, Airman Leadership School
–Airman Below-the-Zone promotion *Early promotion
–Navy and Marine Corps Achievement Medal
–First Good Conduct Medal for Period Ending April 3, 2004
–National Defense Service Medal
–Global War on Terrorism Service Medal
–Navy Pistol Markmanship Medal
–Armed Forces Reserve Medal 2/”M” Devise
–Navy Good Conduct Medal
–Navy Rifle Sharpshooter Ribbon
–Sea Service Deployment Ribbon
–Navy and Marine Corps Overseas Service Ribbon
–Global War on Terrorism Expeditionary Medal
–Member served in Imminent Danger Pay Area from September 11, 2006-April 18, 2007
–Mobilized in Support of Operation Enduring Freedom

The legal team will ask the Court to apply the so-called Witt standard and order that the plaintiffs be reinstated.  In the case of Air Force Maj. Margaret Witt, the United States Court of Appeals for the Ninth Circuit – which governs the Northern District of California – 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 life” of a service member “significantly furthers that interest;” and (3) the government shows the intrusion is “necessary to further that interest.”
Servicemembers Legal Defense Network ( is a national, non-profit legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell.” A journalists’ guide is available here.

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