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fed judge orders end to all DADT actions
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10-13-2010, 09:09 AM
davester wrote: No. http://en.wikipedia.org/wiki/Feres_v._United_States
10-13-2010, 12:41 PM
It will be interesting to see if the White House has to defend the right for Congress to establish constitutionality rather than some California maverick judge and also upholds a responsibility to defend current law.
Maybe the Senate will push this forward.
10-13-2010, 02:41 PM
Doc wrote: No. http://en.wikipedia.org/wiki/Feres_v._United_States It's not at all clear to me that the case you cited is applicable to this situation.
10-13-2010, 03:19 PM
davester wrote: Under the principle of sovereign immunity, the U.S. government can't be sued in a U.S. court unless it permits itself to be sued. The Federal Torts Claims Act opens the door to certain classes of lawsuits for injuries sustained while employed by the U.S. government. (Money damages (lost wages) and emotional harm are injuries.) Feres excludes soldiers from pressing claims under the FTCA, except under rare circumstances. Under the Feres case, even if a soldier is on leave and is injured due to the negligence of other soldiers he has no recourse under the FTCA. So, soldiers who have been hurt due to the DADT policy have no remedy (no lawsuit) against the government for those injuries.
10-13-2010, 03:25 PM
Doc wrote: Under the principle of sovereign immunity, the U.S. government can't be sued in a U.S. court unless it permits itself to be sued. The Federal Torts Claims Act opens the door to certain classes of lawsuits for injuries sustained while employed by the U.S. government. (Money damages (lost wages) and emotional harm are injuries.) Feres excludes soldiers from pressing claims under the FTCA, except under rare circumstances. Under the Feres case, even if a soldier is on leave and is injured due to the negligence of other soldiers he has no recourse under the FTCA. So, soldiers who have been hurt due to the DADT policy have no remedy (no lawsuit) against the government for those injuries. But a soldier just won exactly such a case less than a month ago, and was reinstated with back pay. September 24, 2010 SEATTLE – A U.S. federal court today ruled in favor of Major Margaret Witt, a decorated U.S. Air Force flight nurse who had been dismissed under the military's "Don't Ask, Don't Tell" policy because she is a lesbian, and ordered the U.S. Air Force to reinstate her. After six days of trial, Judge Robert Leighton found that Major Witt's sexual orientation does not negatively impact unit morale or cohesion. ACLU of Washington attorneys have represented Major Witt since her case began in 2006. http://www.aclu.org/lgbt-rights/aclu-win...-dont-tell If she won on those grounds, what's to stop the other 14,000 who have been discharged under DADT from suing, and winning?
10-13-2010, 03:31 PM
billb wrote: Bill, it's the responsibility of the judge to interpret law or as you would put it, "establish constitutionality", in cases where it is not clear and therefore in need of interpretation (hence why the case was made to begin with). Congress's only responsiblity is to create law...
10-13-2010, 03:47 PM
It will still be interesting to see if the White House challenges the judge's ruling on discharges.
I don't expect much of anything before Nov 15th or so.
10-13-2010, 03:51 PM
Grace62 wrote: No she didn't. That wasn't a tort claim. She wasn't suing for redress of a civil injury. It was a Constitutional challenge... the same as the lawsuit in the OP. Others can try to sue on the same grounds, but since there's a judicial order already out there those cases are likely to be thrown out or held indefinitely pending final outcome (appeal to the SCOTUS) of the present DADT case. Lawsuits for financial recovery are verboten. My statements stand.
10-13-2010, 03:56 PM
I'm not sure bill can use the term "maverick" unless he's paid McCain a copyright fee.
10-13-2010, 04:06 PM
Doc wrote: No she didn't. That wasn't a tort claim. She wasn't suing for redress of a civil injury. It was a Constitutional challenge... the same as the lawsuit in the OP. Others can try to sue on the same grounds, but since there's a judicial order already out there those cases are likely to be thrown out or held indefinitely pending final outcome (appeal to the SCOTUS) of the present DADT case. Lawsuits for financial recovery are verboten. My statements stand. But she was awarded a financial recovery by the ninth circuit, and this case established a standard that PREVIOUS dismissals under DADT will be null and void and the soldier must be reinstated with back pay IF the military cannot prove that the soldier's presence harmed morale. The order from yesterday makes pending and future cases go away, but what about those already discharged? I think that the precedent has been set that they can sue to be reinstated. Other such cases are pending right now before federal courts. It's too late for those people to be helped by yesterday's ruling, so they should have recourse. |
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