U.S. District Judge Ronald Leighton in Tacoma ruled two months ago that former Maj. Margaret Witt's firing under "don't ask, don't tell" violated her rights, and he ordered that she be given her job back as soon as she put in enough nursing hours to meet qualifications for the position.
The Justice Department appealed that ruling Tuesday. But government lawyers did not seek a stay that would put the judge's order on hold.
Witt's lawyers celebrated the DOJ's decision, saying it meant she could be reinstated even as the appeal proceeds.
But the Air Force issued a statement Wednesday making clear that if Witt meets her nursing qualifications, military officials and the Justice Department will reconsider whether to seek a stay.
"To date, she has provided the Air Force no evidence that she meets the qualifications necessary to serve as an Air Force flight nurse, nor has she passed a medical physical which is also a prerequisite to her reinstatement," said the statement released by Lt. Col. Karen A. Platt.
Witt's lawyers with the American Civil Liberties Union of Washington said they'd fight any effort to keep their client from resuming her duties during the appeal. They noted that the judge found that her dismissal advanced no legitimate military interest, and to the contrary actually hurt morale in her unit at Joint Base Lewis-McChord.
"We do not foresee a problem in Maj. Witt getting reinstated," ACLU spokesman Doug Honig said. "We will present the Air Force with evidence showing she meets the nursing hours requirements and she will pass the physical."
The physical is a fitness test, rather than a medical exam, Honig said.
Witt was suspended in 2004 and subsequently discharged after the Air Force learned she had been in a long-term relationship with a civilian woman.
If Witt is reinstated, she would be serving openly at a time when the military's policy on gays is in disarray. President Obama and Defense Secretary Robert Gates want to end the ban, but say it should be done through Congress, not the courts.
A federal judge in California has declared the 1993 "don't ask, don't tell" law unconstitutional a ruling the DOJ is also appealing. In the meantime, the Pentagon has implemented new guidelines that have drastically cut the number of gays being dismissed under the policy.
The Pentagon plans to release a monthslong study Nov. 30 on how lifting the gay service ban would affect the armed forces.
"Don't ask" prohibits the military from asking about the sexual orientation of service members but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.