DOJ Appeals DADT Stay Request to the Ninth Circuit

Posted by Chris Geidner
October 20, 2010 11:51 AM |

The Department of Justice has asked the U.S. Court of Appeals for the Ninth Circuit for an emergency stay of U.S. District Court Judge Virginia Phillips order halting enforcement of the "Don't Ask, Don't Tell" policy. The injunction, which was issued on Oct. 12, was the result of her September decision in Log Cabin Republicans v. United States that DADT is unconstitutional.

In its filing -- in which DOJ lawyers say that Phillips's order is "at odds with basic principles of judicial restraint" -- they make the following request:

We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.

The request likely will be heard by the "motions panel" for October, which is Judges O'Scannlain, Trott, and W. Fletcher.

The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.

DOJ then argues, "The government has also shown a likelihood of success in its argument that the district court erred in ruling § 654 [the DADT law] unconstitutional on its face."

Finally, DOJ argues that the remedy -- the worldwide injunction against all enforcement of DADT -- is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.

[UPDATE: The lawyers for LCR responded to the news of the government's request for a stay -- including the request for a temporary stay to be issued today while it considers the request for a stay pending the appeal of the case -- by stating that they planned to file written opposition to the emergency motion for temporary administrative stay later today and written opposition to the motion for a stay of the injunction late this week or early next week. No oral arguments are expected at the Ninth Circuit for consideration of either request.

LCR's deputy executive director, Christian Berle, wrote in response to an inquiry from Metro Weekly, "It has been eight days since the Department of Defense has suspended enforcement of the 'Don't Ask, Don't Tell' policy, and there has been no evidence of any adverse consequences.

"Log Cabin Republicans believes that the Department of Justice is seriously underestimating the professional capacity of our brave servicemembers in continuing under a military that allows open service by gays and lesbians," he wrote. "We are prepared to defend this injunction and this ruling in whatever court or forum in which we are challenged."]

Read: DOJ9thCirStayRequest.pdf

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