November 24, 2010 at 12:15 am EDT | by Chris Johnson
DOJ appeals lesbian Air Force officer’s reinstatement

The Obama administration is appealing a federal district court’s decision to reinstate back into the U.S. Air Force a lesbian nurse who was discharged under “Don’t Ask, Don’t Tell.”

On Tuesday, the U.S. Justice Department filed an appeal notice with the U.S. Ninth Circuit Court of Appeals asking the appellate body to reconsider a decision by a Washington State district court to allow Maj. Margaret Witt back into the Air Force.

The three-page notice gives no explanation for why the Obama administration is appealing Witt v. Air Force and simply states that “notice is hereby given” that the Justice Department has made the filing.

In September, U.S. District Court Judge Ronald Leighton ruled that Witt, who was discharged in 2006 after serving in the Air Force for 19 years as a flight nurse, should be allowed back into the military.

White House Press Secretary Robert Gibbs said in a statement the administration filed the appeal as it “traditionally does when acts of Congress have been held unconstitutional,” but said this filing “in no way diminishes” President Obama’s commitment to repealing “Don’t Ask, Don’t Tell” legislatively this year.

“Indeed, it clearly shows why Congress must act to end this misguided policy,” Gibbs added.

Gibbs said the president and administration officials “have been working with the Senate” to move forward during the lame duck session with passage of the fiscal year 2011 defense authorization bill, which contains repeal language.

But Jon Davidson, legal director for Lambda Legal, blasted the Obama adminstration for appealing to a higher court the decision to reinstate Witt.

“Notwithstanding President Obama’s concession that the military’s current anti-gay policies are hurting national security, his administration is continuing to pursue the discharge of a decorated officer who did not ‘tell,’ who would not have even been investigated under the military’s current guidelines, and whose discharge has been found not to promote unit cohesion or morale,” Davidson said.

Davidson called the decision to appeal the district court’s ruling — in addition to not suspending discharges pending review of “Don’t Ask, Don’t Tell — a “significant failure on the part of our nation’s Commander in Chief.”

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said he thinks the decision to appeal the Witt ruling is consistent with the Obama administration’s decision to appeal U.S. District Court Judge Virginia Phillip’s recent ruling that struck down “Don’t Ask, Don’t Tell.”

“So just as the government is appealing the substance of Judge Philip’s decision …, the government is appealing the substantive decision here as well,” NeJaime said.  “While disappointing, it is in some ways consistent with the appeal in Log Cabin Republicans.”

In a statement, Witt said she’s “thrilled” to be able to resume her service in the Air Force and said the people in her unit “are like family members.”

“Thousands of men and women who are gay and lesbian honorably serve this country in our military,” she said. “Many people forget that the U.S. military is the most diverse workforce in the world — we are extremely versed in adaptation.”

According to the ACLU of Washington, which represented Witt in the litigation, Witt will be the first openly gay person to serve in the military due to a court order.

NeJaime said he thinks the Obama administration’s decision not to seek a stay on Witt’s reinstatement as it appeals the case is the result of pressure to repeal “Don’t Ask, Don’t Tell.”

“Given all the pressure on the administration in light of the failed attempts to repeal [‘Don’t Ask, Don’t Tell’], it seems appropriate that the government would not seek to prevent Major Witt’s service pending appeal,” NeJaime said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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