For M. Andrew Woodmansee, the court battle to repeal Don’t Ask, Don’t Tell hit close to home. Gay himself, he brought pro bono cases on behalf of four men who’d been discharged under the military’s ban on openly gay troops. Although he never served himself, Woodmansee, head of the litigation group at Morrison & Foerster’s San Diego office, knows the military: His grandfather was killed in World War II; his father served in the Korean War; he has two brothers who served.
“For me, it is extraordinary that men and women want to serve our country and be shot at,” he said. “There’s nothing more fundamental to the system of justice than protecting these people’s constitutional rights. So that, to me, is why I chose to do this, and why I spent so many hours fighting these cases for these individuals.”
The law was declared unconstitutional in 2010, in a case brought by the Log Cabin Republicans, a gay rights group represented pro bono by White & Case partner Dan Woods. But the U.S. Court of Appeals for the 9th Circuit would block enforcement of a district court’s global injunction against enforcing the ban. And although President Obama signed repeal into law on Dec. 22, 2010, it wouldn’t take effect for months. Meanwhile, the discharges would continue. Woodmansee’s cases challenged those actions.
Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said the two cases brought on behalf of the four clients had a “significant impact on the Don’t Ask, Don’t Tell repeal debate.” Lt. Col. Victor Fehrenbach and Maj. Michael Almy, in particular, became the public face of repeal, appearing before Congress and in the media, he said.
In fact, two of Woodmansee’s clients — Almy and Staff Sgt. Anthony Loverde, both formerly in the Air Force — had testified during the Log Cabin trial. “They were both prominently featured in the judge’s opinion,” Woods said, referring to U.S. District Judge Virginia Phillips in Riverside, Calif. “She found both of them to be credible and they were crucial to our testimony that Don’t Ask, Don’t Tell weakened the military.”
Woodmansee’s team spent 1,100 hours suing the Air Force for Fehrenbach, who was investigated in 2009 following accusations he’d sexually assaulted a male civilian at his house. Fehrenbach was cleared, but dismissal proceedings continued.
In August 2010 — at the height of the debate over repeal — Woodmansee went to federal court in Idaho seeking to prevent Fehrenbach’s discharge. Lawyers for the U.S. Department of Justice agreed to halt further action in his case, but the matter was far from over. “They would not give assurances they would not press forward on this case,” Woodmansee said. “It was considerable stress still for our client.” In the end, Fehrenbach was allowed to retire with full benefits in September 2011.
In the second case, filed in December 2010 against the Department of Defense, Woodmansee’s team sought to reinstate three veterans who had been discharged. They filed days before the repeal passed the U.S. Senate. “Candidly, it was a dual-purpose lawsuit,” Woodmansee said. “We wanted to animate the concern of [then-Defense] Secretary [Robert] Gates that the courts were going to dictate repeal if the Senate didn’t act.”
Almy had been discharged in 2006 after authorities found an e-mail on his computer discussing homosexual conduct. Loverde was discharged in 2008 after he told his superiors that he could no longer keep his sexual orientation a secret. And Petty Officer 2d Class Jase Daniels was discharged twice from the Navy due to a clerical error — once in 2005, when he acknowledged he was gay following a divorce, and in 2007, after he discussed his orientation for a Stars and Stripes article.
Each sought injunctive relief ensuring they would be reinstated to their former rank, Woodmansee said. On Feb. 11, Justice Department attorneys filed a motion to remove the case to the U.S. Court of Federal Claims, which adjudicates demands by service members for “money damages.”
“This was a very serious attempt to derail our case and stop it in its tracks,” Woodmansee said. He opposed the motion and filed an amended complaint that eliminated all claims for monetary damages. On May 3, U.S. District Judge Richard Seeborg in San Francisco ruled that the government’s motion was moot. Since then, both sides resolved their disputes out of court. On Dec. 12, Daniels was reinstated to the Navy.
Amanda Bronstad can be contacted at firstname.lastname@example.org.