DADT Goes Back to Court

SLDN filed a lawsuit this week as the first ''shot across the bow'' of a new litigation strategy should congressional repeal of DADT fail in the coming weeks

On Dec. 13, lawyers for Servicemembers Legal Defense Network filed a lawsuit in federal court seeking the reinstatement of three servicemembers ousted under “Don’t Ask, Don’t Tell,” including former Air Force Maj. Mike Almy.

The lawsuit claims that the DADT-related discharges of Almy, former Air Force Staff Sgt. Anthony Loverde and former Navy Petty Officer 2nd Class Jason D. Knight were unconstitutional violations of both due process and equal protection, as well as the First Amendment. These claims are the same, generally, as those raised in the Log Cabin Republicans v. United States case.

In addition to those claims, SLDN – along with lawyers from the law firm of Morrison and Foerster – raises the argument that the Administrative Procedures Act was violated when Almy’s personal e-mails were searched and information found from that search was the basis of his discharge.

Almy testified before the Senate Armed Services Committee in March on the same day that former Lt. Dan Choi first handcuffed himself to the White House gates. Choi was discharged over the summer; and Almy has now asked the courts to let him back in.

SLDN has, with this filing, made clear that it intends to follow through with its threat to increase the level of litigation aimed at ending DADT should Congress fail to act to repeal the 1993 law.

SLDN Executive Director Aubrey Sarvis released a statement reading, “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,” he said, as quoted in the SLDN release. “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 lead lawyer on the case, Andrew Woodmansee, is with Morrison and Foerster, and his biography includes significant work for the LGBT community. In addition to his intellectual property practice, Woodmansee represents the plaintiffs in Barnes-Wallace, et al. v. Boy Scouts of America, a case in which he represents an agnostic couple and a lesbian couple, as well as their Scouting-age boys. He also serves as lead counsel in Fehrenbach v. Department of the Air Force, challenging the Air Force’s efforts to discharge Lt. Col. Victor J. Fehrenbach.

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