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Decorated combat Air Force aviator files injunction to block 'don't ask, don't tell' discharge

News release from Servicemembers Legal Defense Network:


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 the status 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.”

Legal team biography: M. Andrew Woodmansee, Partner, Morrison & Foerster: http://bit.ly/9TG7WY

Legal team biography: Aaron Tax, Legal Director, Servicemembers Legal Defense Network: http://bit.ly/b2aCNm

To read the filing in the United States District Court for the District of Idaho visit: http://bit.ly/dvTULR




· Lt. Col. Fehrenbach will reach his 20-year retirement in September of 2011; just 13 months from now.  He has been on desk duty at Mountain Home Air Force Base in Idaho awaiting the results of more than two years of investigations and discharge proceedings.  If Lt. Col. Fehrenbach is discharged, he will lose his retirement benefits.

· In May of 2008, Lt. Col. Victor Fehrenbach was notified that his commander was seeking to separate him from the US Air Force under "Don't Ask, Don't Tell" (DADT) after the Air Force received information from a civilian.  He decided to fight his discharge after hearing then-Presidential candidate Barack Obama pledge to end Don’t Ask, Don’t Tell.

· Lt. Col. Fehrenbach served in the Former Yugoslavia, Afghanistan, and Iraq.  He flew the longest combat sorties in his squadron's history, destroying Taliban and Al Qaeda targets in support of Operation Enduring Freedom and Operation Iraqi Freedom.  And after the Sept. 11th attacks, Fehrenbach was hand-picked to protect the airspace over Washington, D.C.

· Lt. Col. Fehrenbach's awards include the Meritorious Service Medal, nine Air Medals -- including one for Heroism -- the Aerial Achievement Medal, five Air Force Commendation Medals and the Navy Commendation Medal.



Meritorious Service Medal  

Air Medals (9 total / 1 for Heroism)

Aerial Achievement Medal  

Air Force Commendation Medals (5)   

Navy Commendation Medal   

Air Force Achievement Medals (2)  

USAF Outstanding Unit Awards (2) with Valor

Kosovo/Afghanistan/Iraq Campaign Medals

Korea/NATO/Global War on Terror Service Medals

Strike Fighter Instructor of the Quarter, 2004

Information Manager of the Quarter, 1994

Company Grade Officer of the Quarter, 1994




1238 F-15E HOURS





SOUTHERN WATCH (three times) – Iraq

ALLIED FORCE and JOINT GUARDIAN – Kosovo and Former Yugoslavia


ENDURING FREEDOM (three times) and ANACONDA – Afghanistan



F-15E Transition Course, Seymour Johnson AFB NC, 2007

USAF Air Command and Staff College (Correspondence), Maxwell AFB AL, 2005

F-15E Basic Qualification Course, Seymour Johnson AFB NC, 1998-1999

USAF Squadron Officer School (Residence), Maxwell AFB AL, 1997

EF-111A Basic Qualification Course, Cannon AFB NM, 1997-1998

Joint Undergraduate Navigator Training, Randolph AFB TX and NAS Pensacola FL, 1994-1996

USAF Basic Information Management Course, Keesler AFB MS, 2001

University of Notre Dame, South Bend IN, Bachelor of Arts in International Relations, 1987-1991


· “Major Victor J. Fehrenbach distinguished himself by heroism while participating in aerial flight as F-15E Weapon Systems Officer, 335th Expeditionary Fighter Squadron, 379th Expeditionary Operations Group, 379th Air Expeditionary Wing, at Al Udeid Air Base, Qatar on 3 April 2003.  On that date, as Major Fehrenbach provided combat airpower in support of coalition forces Operation IRAQI FREEDOM.  In direct support of friendly ground forces securing Baghdad International Airport, Major Fehrenbach worked with two ground forward air controllers, providing immediate time-sensitive targeting of two enemy target arrays located near advancing friendly forces.  Major Fehrenbach successfully employed nine laser-guided bombs, destroying two enemy missile launchers and 12 armored vehicles within striking distance of coalition ground forces.  While destroying these targets, Major Fehrenbach was targeted by constant enemy anti-aircraft artillery fire, one strategic surface-to-air missile, and eight tactical surface-to-air missiles.  Major Fehrenbach used preemptive and reactive countermeasures and varied the attack axis for each strike to defeat these threats.  His tactical prowess in a high threat environment denied enemy ground force attacks on advancing friendly forces, thereby allowing them to secure Baghdad International Airport safely, and furthering the success of coalition forces in Operation IRAQI FREEDOM.  The professional heroism and airmanship displayed by Major Fehrenbach reflect great credit upon himself and the United States Air Force.”  (September 4, 2003)


· On March 25, 2010, Secretary of Defense Robert Gates and JCS Admiral Michael Mullen issued new Instructions with the goal of making the implementation of “Don’t Ask, Don’t Tell” more “humane.”  The Air Force followed by updating its own instructions, including AFI 36-3208, Administrative Discharge Procedures For Commissioned Officers, on April 2, 2010.  An Guidance Memorandum states, “[t]he changes set forth in this Guidance Memorandum are effective immediately and shall apply to all fact-finding inquiries and separation proceedings open on or initiated on or after 25 March 2010.”  Because Lt. Col. Fehrenbach’s separation proceedings are still open, the new instructions apply to the facts of his case.  In revising their “Don’t Ask, Don’t Tell” Instructions the Department of Defense and the Air Force raised the bar on so-called third party outings, by strengthening the “credible information from a reliable source” standard of proof necessary to start an investigation.  The revised Instructions now define a “reliable person” as “someone who would be expected, under the circumstances, to provide accurate information.”  The revised Instructions go on to state that an example of an unreliable person is “[a] person with a prior history of untruthfulness or unreliability.”  And they also now say the commanders must examine “the source of the information, and the circumstances under which the information was obtained….”  Lt. Col. Fehrenbach’s accuser was known to have a prior history of untruthfulness and unreliability.  Given the source of the information and the circumstances under which it was obtained, Lt. Col. Fehrenbach should be retained.

· The investigation of Lt. Col. Fehrenbach was also improper and in violation of Air Force instructions in effect at the time the Air Force launched its “Don’t Ask, Don’t Tell” investigation, because it was never based on credible information from a reliable source.  Pursuant to then-current AFI 36-3206, Administrative Discharge Procedures For Commissioned Officers, § A2. 1.1, “[a] commander may initiate a fact-finding inquiry only when he or she has received credible information that there is basis for discharge.”  Under § A2.3.4, credible information was defined as when a “reliable person” came forward with evidence that a service member had violated “Don’t Ask, Don’t Tell.”  Lt. Col. Fehrenbach’s accuser was viewed by authorities as “unreliable,” having “a history of false reporting,” and “not a credible witness.”  Even under this weaker standard, the false allegation made by an unreliable witness could never be considered “credible,” and the investigation of Lt. Col. Fehrenbach should have been terminated.

· Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) requires that prior to discharging Lt. Col. Fehrenach under “Don’t Ask, Don’t Tell,” the government must put forth evidence showing that as-applied to Lt. Col. Fehrenbach: 1) the government advances an important governmental interest, 2) that the intrusion into his private life significantly furthers that interest, and 3) that there are no less intrusive means to substantially achieve the government’s interest.  The Witt decision is currently binding case law in the 9th Circuit, home of Mountain Home Air Force Base, where Lt. Col. Fehrenbach is stationed. 


· May 16, 2008: Lt. Col. Victor Fehrenbach meets with his commander and civilian authorities after a false allegation is made against him.  Due to the nature of the allegations and in an effort to explain the circumstances, Fehrenbach makes statement to his commander and civilian authorities.  The information resulting from this groundless accusation is later used as a basis to initiate discharge proceedings under “Don’t Ask, Don’t Tell.”

· May 19, 2008:  Lt. Col. Victor Fehrenbach contacts Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending "Don't Ask, Don't Tell" (DADT), concerned that he is being investigated under DADT.  SLDN formally begins legally advising Fehrenbach. 

· June 3, 2008:  After the investigation by civilian authorities is concluded, it is announced charges will not be filed.  The military investigation under DADT continues.

· August 20, 2008:  The more extensive military investigation is concluded.  Once again, the allegations are found to be false and baseless, and military authorities decide that charges will not be filed.

· September 11, 2008: Lt. Col. Victor Fehrenbach is formally notified that his squadron commander, Lt Col Mark Thompson, is recommending his separation from the US Air Force under "Don't Ask, Don't Tell."

· September 12, 2008:  Lt. Col. Victor Fehrenbach receives formal notification from the Twelfth Air Force Commander, Lt Gen Norman Seip, that he is initiating separation actions.  This letter is know as the “Show-Cause” notification—Lt Col Fehrenbach must “show cause” for his retention in the US Air Force.  He has the option to waive his rights and accept immediate discharge, or to proceed with a formal Board of Inquiry (administrative discharge board) where the Air Force can bring evidence to support discharge and the respondent can show evidence to support retention.

· September 22, 2008:  Lt Col Victor Fehrenbach submits his response to the “Show-Cause” notification.  Initially, he decides to waive his right to a board hearing and accept immediate discharge.

· October 22, 2008:  After careful deliberation, Lt Col Fehrenbach reverses his decision and requests to proceed with the formal Board of Inquiry hearing.

· January 15, 2009:  At a pre-board hearing, Lt Col Fehrenbach requests that the Air Force apply the “Witt Standard”—standing law in the 9th US Circuit—to his case.  The Air Force denies this request.

· April 15, 2009:  A formal military Board of Inquiry is convened.  The board recommends that Lt. Col. Fehrenbach be honorably discharged under “Don’t Ask/Don’t Tell.”

· May 19, 2009: Lt. Col. Victor Fehrenbach announces on MSNBC’s The Rachel Maddow Show -- for the first time publicly -- that after more than 18 years of service, he is being separated from the US Air Force under "Don't Ask, Don't Tell."

· February 16, 2010:  The international law firm of Morrison & Foerster LLP agrees to represent Lt. Col. Fehrenbach, pro bono, as co-counsel with SLDN.

· May 3, 2010:  Morrison & Foerster sends a letter to the Secretary of the Air Force laying out Lt. Col. Fehrenbach’s exemplary service record and detailing the Air Force’s numerous violations of Lt. Col. Fehrenbach’s constitutional rights.  The letter requests a meeting with Secretary Donley before the Air Force decides to discharge Lt. Col. Fehrenbach.  No meeting is held.

· May 17, 2010:  Morrison & Foerster sends a letter to the Deputy General Counsel of the Air Force, again requesting an opportunity to meet with Secretary Donley or the Air Force General Counsel prior to a final decision on whether to discharge Lt. Col. Fehrenbach.

· June 7, 2010:  Morrison & Foerster and SLDN meets with the General Counsel of the Air Force and the General Counsel of the Department of Defense.

· June/July, 2010:  SLDN and Morrison & Foerster continue informal discussions with Air Force General Counsel regarding Lt. Col. Fehrenbach’s pending discharge.


· “Dynamic [officer]; [who] maintained infallible professionalism/attitude despite huge personal challenges . . . [who] raised morale . . . [and] who is a [p]roven leader/warrior; [who] handles every task w[ith] steady, professional focus.”  (Officer Performance Reports for February 1, 2009 thru January 31, 2010)

· “#1 pick for first-ever OSS/ADO; textbook leadership . . . Engineered ORE readiness; coordinated all logistics/personnel req’s for seven flight/four OREs--OSS war ready . . . Directed recognition program . . . morale at pinnacle . . . Superstar FGO; proven leader/warrior . . . can do it all!  . . . [P]ure gold leadership under pressure . . . Visionary . . . vital for continued UAV combat ops . . . Pure leadership; vision, experience, warrior ethos are second to none.”  (Officer Performance Report for February 1, 2007 through January 31, 2008)

· “Rock-solid leader; awesome credentials  . . . Unbelievable leadership  . . . Team Builder!  Literally grabbed Det 1 from clutches of failure, transformed ops into msn, customer showcase! . . . Relentless! . . . Electrifying impact; wish all my CCs had half his fire; rocket-propelled leader . . . Dynamite enabler . . . Brilliant JUNT WSO instructor . . . Top 5% of 477 officers; impressive leadership across the [board] . . . superstar.”  (Officer Performance Report for August 30, 2006 through January 31, 2007)

· “My ‘go-to’ host for [distinguish visitors] visits . . . lauded by all!  . . . Model mentor . . . Peerless leader.”  (Officer Performance Report for December 30, 2005 through August 29, 2006)

· “#1/86 O-4s in my multi-service command!  Leader of leaders; hands-down #1 advisor on all my USAF issues . . . Takes care of people . . . Model mentor . . . Top 2% of over 400 officers in TW-6!”  (Officer Performance Report for December 30, 2004 through December 29, 2005)

· “Superstar! Top 2% / 400+ officers; ‘#1/11 [Weapons Systems Officers]’; ‘#1 USAF Strike Fighter Instructor’; ‘Top 5% of all [field grade officers]’ . . . Multiple kills vs Al-Qaeda, high-value Iraqi targets . . . ‘flawless results’ . . . ‘best I’ve seen’ . . . Top-tier officer . . . ‘My #1 officer/aviator’. . . War hero, leader, 11 on a scale of 10! . . . Best on my staff!”  (Promotion Recommendation November, 2005)

· “Top 5% of field grade officers; peerless leader, manager, instructor--made major improvements to operations . . . Exemplary organization skills; my #1 choice to run two of VT-86’s most demanding department head jobs . . . My #1 USAF Strike Fighter Instructor; ready for the toughest jobs . . . The best--consistently lauded on student critiques as the squadron’s #1 Most Effective Strike Fighter Instructor . . . Leader and mentor.”  (Officer Performance Report for December 30, 2003 to December 29, 2004)

· “Combat centurion; [his] legacy of success continued . . . Consummate professional . . . his mentoring laid cornerstone of [squadron’s] future . . . Superb mentor; prepares officers for leadership positions . . . Epitome of leadership, both on and off the job; prime driver for social and off-duty events--morale champion . . . Superstar in all endeavors, shapes flight personnel into impeccable professionals, outstanding flight mentor.”  (Officer Performance Report for February 7, 2003 to December 29, 2003)

· “My #1 officer/aviator; combat veteran and staff officer--gets the job done on time and right the first time . . . Air-to-ground expert and ‘Top Gun’ . . . destroyed multiple al-Qaida targets . . . Skillfully managed wing training . . . Innovator . . . Combat leader and outstanding professional officer on the ground or airborne! . . . Outstanding officer, leader, and decorated warrior.”  (Officer Performance Report for January 7, 2002 to February 6, 2003)

· “Superstar; 1/12 select alert aircrew supporting Operation NOBLE EAGLE in defense of nation’s capitol. . . . #1 of 11 [Weapon System Operators] in my flight--quintessential leader and superb aviator--setting the standard in C Flight . . . tactical role model for young aviators to match . . . lauded by 4 [Operations Group Commander] as ‘best seen in his career!’ . . . Squadron Expert . . . Indispensible . . . Absolutely superior aviator/problem solver; excels at every task . . . Dynamic leader; informal leadership is crucial to squadron’s success; sets and enforces highest standard . . . Showcase officer . . . Flawless management . . . Highest caliber officer and aviator.”  (Officer Performance Report for January 7, 2001 to January 6, 2002)


· Lt Col Victor J. Fehrenbach is a 19-year combat veteran of the United States Air Force.  He is currently assigned as F-15E Weapons Systems Officer and Assistant Director of Operations, 366th Operations Support Squadron, Mountain Home AFB, Idaho. 

· Lt Col Fehrenbach was born at Wright-Patterson AFB, Ohio, on August 20, 1969.  He is the son of USAF Lt Col (Ret) Arthur J. Fehrenbach and Treva L. Fehrenbach.  His father was a career navigator and his mother was a nurse in the USAF.  He graduated from the University of Notre Dame in 1991 on a USAF ROTC scholarship, earning his commission and Bachelor of Arts Degree in International Relations.

· Lt Col Fehrenbach entered active duty in September 1991 as an Information Management Officer.  He served in this capacity at Mountain Home AFB, Idaho, Kunsan AB, Korea, and Hurlburt Field, Florida.  In 1994, Lt Col Fehrenbach began flight training at Randolph AFB, Texas, and NAS Pensacola, Florida.  He earned his wings in April 1996 and was selected to fly the F-15E Strike Eagle.  Following training, he was reassigned to the 429th Electronic Combat Squadron at Cannon AFB, New Mexico, flying the EF-111A Combat Raven.  While here, he served on his first combat deployment to Prince Sultan AB, Saudi Arabia, supporting Operation SOUTHERN WATCH. 

· In 1998, Lt Col Fehrenbach was reassigned to the 334th Fighter Squadron at Seymour Johnson AFB, North Carolina.  After 10 months of training, he was sent to the 494th Fighter Squadron at RAF Lakenheath, England.  Immediately upon his arrival, he deployed to Aviano AB, Italy, supporting ALLIED FORCE in the liberation of Kosovo.  One year later, he redeployed to Aviano supporting JOINT GUARDIAN, continuing peacekeeping operations over Former Yugoslavia.

· In 2001, Lt Col Fehrenbach was reassigned to the 335th Fighter Squadron at Seymour Johnson AFB, North Carolina.  On 9/11, he was handpicked as initial alert crew immediately after the attacks on the US.  In the months that followed, he flew numerous sorties over Washington DC in defense of the nation’s capital.  In early 2002, he deployed to Al Jaber AB, Kuwait, supporting ENDURING FREEDOM and SOUTHERN WATCH.  Here, he had several notable accomplishments, employing the first munitions in his squadron, flying numerous sorties destroying Taliban and Al Qaeda targets, and flying the longest combat sortie in squadron history.  The following year, he was handpicked for an elite Task Force—the first-ever joint combat employment of conventional fighter aircraft with special operations forces.  In early 2003, he deployed to Al Udeid AB, Qatar, supporting IRAQI FREEDOM.  As part of the Task Force, he flew the initial sorties before the conflict commenced and destroyed multiple high-value regime targets.  He was awarded an Air Medal for Heroism for risking his life, destroying an enemy ambush site under constant, heavy enemy fire.

· In 2004, Lt Col Fehrenbach was reassigned as a flight school instructor at Training Wing Six, NAS Pensacola, Florida.  Here, he was recognized as the Instructor of the Quarter and served as Senior Air Force Advisor to the Wing Commander, and as Commander of 325th Fighter Wing, Detachment 1, leading 850 Airmen throughout the region. 

· In 19 years, Lt Col Fehrenbach deployed 6 times in support of 7 major combat operations.  He flew combat missions over Iraq, Kosovo, former Yugoslavia, USA, and Afghanistan.  He accrued 2180 total flying hours, 1487 fighter hours, 500 instructor hours, 400 combat hours, and 88 combat missions.  His decorations include the Meritorious Service Medal, nine Air Medals, Aerial Achievement Medal, five Air Force Commendation Medals, Navy Commendation Medal, two Air Force Achievement Medals, two Outstanding Unit Awards with Valor, Kosovo/Afghanistan/Iraq Campaign Medals, and Korea/NATO/GWOT Service Medals.

Servicemembers Legal Defense Network (www.sldn.org) is a national, non-profit legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell.” A journalists’ guide is available here.

We are Morrison & Foerster—a global firm of exceptional credentials in many areas. Our clients include some of the largest financial institutions, Fortune 100 companies, investment banks and technology and life science companies. Our clients count on us for innovative and business-minded solutions.  Our commitment to serving client needs has resulted in enduring relationships and a record of high achievement.  For the last six years, we’ve been included on The American Lawyer’s A-List.  Fortune named us one of the “100 Best Companies to Work For.”  We are among the leaders in the profession for our longstanding commitment to pro bono work. Our lawyers share a commitment to achieving results for our clients, while preserving the differences that make us stronger.  This is MoFo.  Visit us at www.mofo.com.


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Steve, we must sue for our equal rights in federal court. Everyone in Florida needs to do the same. Florida is such a cool destination, and Miami is the best part of the state.

Wake those glamorous queens up down there, and sue in federal court for your rights!

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