U.S. Dept. of Justice, U.S. Air Force Reach Federal Court Agreement with Lt. Col. Victor Fehrenbach
Highly decorated combat Air Force Aviator filed injunction in Federal Court to block "Don't Ask, Don't Tell" discharge
WASHINGTON, D.C. — Servicemembers Legal Defense Network ( SLDN ) and Morrison & Foerster LLP, representing their client, Lt. Col. Victor Fehrenbach, reached an agreement today with the U.S. District Court for the District of Idaho, U.S. Department of Justice, and the U.S. Air Force, on the pending request for a temporary restraining order. The agreement prevents the Air Force from discharging Lt. Col. Fehrenbach under "Don't Ask, Don't Tell" ( DADT ) , the discriminatory law barring gay and lesbian service members from serving openly and honestly, until the Court can schedule a hearing on the motion for a preliminary injunction. Attorneys for Lt. Col. Fehrenbach filed a motion in U.S. District Court for the District of Idaho last Wednesday seeking a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders "morale, good order and discipline, and unit cohesion."
Statement by Morrison & Foerster's M. Andrew Woodmansee:
"This is exactly what we asked the Court to do in our motion on Wednesday, and we are pleased that the Air Force has agreed to preserve the status quo until we can have a full hearing. Of course, we continue to hope that the Air Force will do the right thing and let this war hero continue to serve this country."
Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:
"The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job. This agreement is a victory for Lt. Col. Fehrenbach and our nation. The Air Force can still do the right thing and retain Lt. Col. Fehrenbach under the Pentagon's own revised regulations on 'Don't Ask, Don't Tell.' The Senate needs to act next month to get rid of this antiquated law that dishonors some of our finest and most talented service members."
To read the agreement as filed in U.S. District Court for the District of Idaho visit:http://bit.ly/doM7Q9
Originally posted to www.windycitymediagroup.com Aug. 12, 2010?
Highly Decorated Combat Air Force Aviator Files Injunction in Federal Court to Block "Don't Ask, Don't Tell" Discharge
Air Force Secretary has window of opportunity to reverse board's recommendation under "Don't Ask, Don't Tell"; New Pentagon Instructions show clear path to retain Lt. Col. Victor Fehrenbach
Lt. Col. Fehrenbach is 13 months from 20-year retirement
WASHINGTON, D.C. — Servicemembers Legal Defense Network ( SLDN ) and Morrison & Foerster LLP filed a request for a temporary restraining order today on behalf of their client, Lt. Col. Victor Fehrenbach, seeking to block the Air Force from discharging him under "Don't Ask, Don't Tell" ( DADT ) , the discriminatory law barring gay and lesbian service members from serving openly and honestly. The filing in the United States District Court for the District of Idaho, seeks a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders "morale, good order and discipline, and unit cohesion."
The General Counsel's Office to the Secretary of the Air Force confirmed to Morrison & Foerster and SLDN that the Air Force Personnel Board recently reviewed Lt. Col. Fehrenbach's case and has sent a recommendation to Air Force Secretary Michael B. Donley's designee. According to Air Force regulations, had the Board recommended to retain Lt. Col. Fehrenbach no further action would have been required by the Secretary or his designee ( AFI 36-3206 Chapter 6.10 and Chapter 6.10.1 ) . Although SLDN and Morrison & Foerster understand the Secretary has delegated his authority to act on the Board's recommendation, Secretary Donley has the power to step in and retain Lt. Col. Fehrenbach. Without action by the Secretary, the Board's recommendation is expected to stand and Lt. Col. Fehrenbach could be discharged within days.
A request for a temporary restraining order asks the court to prevent irreparable injury to the plaintiff and preserve thestatus quo until a more complete hearing can be held on the merits of the case. If the court grants the request, the Air Force will be prevented from discharging Lt. Col. Fehrenbach until a full hearing can be scheduled. The Fehrenbach case is among the first to challenge a discharge under DADT by applying the so-called Witt standard. In the case of Air Force Maj. Margaret Witt, the United States Court of Appeals for the Ninth Circuit — which governs the District of Idaho — 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 li [ fe ] " of a service member "significantly furthers that interest;" and ( 3 ) the government shows the intrusion is "necessary to further that interest."
Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:
"Our nation is on the verge of firing a highly decorated combat aviator, an American hero. The Air Force Secretary can do the right thing and retain Lt. Col. Fehrenbach under the Pentagon's own recently revised regulations on 'Don't Ask, Don't Tell.' Lt. Col. Fehrenbach signed up nearly 19 years ago willing to risk all and die for his country, flying nearly 90 combat missions in Iraq, Afghanistan, and Kosovo. Why and how the hell do we end up firing our best and brightest when we're fighting in two wars? If Secretary Donley does not step in, this nation will lose a service member worth $25 million in training whose skill sets are desperately needed today. The discharge of Lt. Col. Fehrenbach would dramatically underscore that 'Don't Ask, Don't Tell' is still the law and all gay and lesbian service members should be on notice. Clearly there is an urgent need for the Senate to act on legislation currently pending that would allow for repeal."
Statement by Morrison & Foerster's M. Andrew Woodmansee:
"The Air Force's pending discharge of Lt. Col. Fehrenbach does not pass muster under the United States Constitution. The Air Force did not prove—as it was required to—that his continued service hurts morale, good order and discipline, and unit cohesion. They can't prove it because it isn't true. Even while under investigation for the past two years, Lt. Col. Fehrenbach continues to be highly regarded by fellow officers and continues to receive excellent evaluations from his commanders. As a combat-seasoned aviator, he is exactly the type of person this country needs while fighting two wars. He should be overseas fighting for his country right now, but instead he has been fighting the Air Force because of this unconstitutional law."
Statement by Lt. Col. Victor Fehrenbach:
"I have been waiting more than two years for the Air Force to do the right thing by letting me continue to proudly serve my country. To say that I'm disappointed with where things stand would be a monumental understatement. I have given my entire adult life to the Air Force that I love. I have deployed six times and risked my life for my country. In the two years that I've been sitting at my desk rather than inside my jet, I've offered to deploy numerous times. I'm ready, willing, and able to deploy tomorrow, but I'm barred from deployment, because of this unjust, discriminatory law. Meanwhile, moms and dads, sons and daughters, and my friends go back for the third, fourth, fifth deployments. While our country is engaged in two wars, my service is needed now more than ever."
www.SLDN.org/Victor
