SLDN Fights Congressional Inaction With Legal Fire

Posted by Chris Geidner
December 13, 2010 4:55 PM |

SarvisAlmy.jpgThis morning, 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 Major Mike Almy.

The lawsuit claims that the DADT-related discharges of the Almy, former Air Force Staff Sgt. Anthony Loverde and former Navy Petty Officer 2nd Class Jason D. Knight were unconstituational 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 biglaw firm Morrison and Foerster -- raises the argument that the Administrative Procedures Act (APA) was violated when Almy's personal emails 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 fence. Choi was discharged over the summer, and Almy -- today -- has asked the courts to let him back in.

SLDN has, with today's 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.

Executive director Aubrey Sarvis said in a statement, "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. "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 bio includes significant work for the LGBT community:

In addition to his intellectual property practice, Mr. Woodmansee maintains an active pro bono practice, serving as trial and appellate counsel in several high-profile civil rights and First Amendment cases. He represents the plaintiffs in Barnes-Wallace, et al. v. Boy Scouts of America, et al., 551 F.3d 891 (9th Cir.2008), cert. denied, 2010 WL 1740539 (May 3, 2010). In that case, he won two summary judgment rulings in 2003 and 2004 on behalf of his clients, an agnostic couple and a lesbian couple, as well as their Scouting-age boys. The Court ruled that the City of San Diego's free leases of 18 acres in Balboa Park and one acre in Mission Bay Park to the Boy Scouts violate the Establishment Clause of the United States Constitution, as well as the No Aid and No Preference Clauses of the California Constitution. In 2008, the United States Court of Appeals for the Ninth Circuit held that his clients have standing to pursue their claims, and it certified three questions of state law to the California Supreme Court. The Supreme Court of the United States declined to hear the Boy Scouts' appeal on the standing issue.

He also serves as lead counsel in Fehrenbach v. Department of the Air Force, et al. (D. Idaho), challenging the Air Force's efforts to discharge his client, Lt. Col. Victor J. Fehrenbach, under the law known as "Don't Ask, Don't Tell." Mr. Woodmansee also has briefed cases before a number of appellate courts, including the Supreme Court of the United States, the United States Courts of Appeals for the Seventh, Ninth, and Federal Circuits, as well as the California Supreme Court.

Read the complaint: Almy Complaint.pdf

[UPDATE @ 6:40 PM: The APA does not apply to "military authority exercised in the field in time of war or in occupied territory," according to Sec. 551(1)(G). This exception could prove relevant in this case. Here is the relevant part of today's Complaint:

Airmen in Iraq were forced to use government-provided computers and email accounts for personal correspondence.  Specifically, AFI 33-119 authorized service members to use their government email accounts for personal correspondence for “morale, health, and welfare purposes.”  Mr. Almy therefore used his Air Force email account for personal emails.  Shortly after Mr. Almy left Iraq in January 2005, during a purportedly “routine” search of his computer files, another member of the Air Force found personal emails in a separate folder labeled “Friends,” including at least one email from Mr. Almy to another man discussing same-sex conduct.

Because the emails that led to Almy's discharge were sent while he was deployed in Iraq, I asked Woodmansee whether that exception applied. Woodmansee replied, "I suppose the government could argue that (G) provides an exclusion in this case, but I do not believe it does." He did not explain further, but among the arguments for it not being applicable here is that it could be argued that the search was a personnel issue and not an exercise of "military authority."]

[Photo: SLDN executive director Aubrey Sarvis, left, with Mike Almy, second from left, and others at the SLDN rally for "Don't Ask, Don't Tell" repeal on Friday. (Photo by Chris Geidner.)]

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