BREAKING: DOJ Files Motion Requesting Stay of DADT Injunction

Posted by Chris Geidner
October 14, 2010 4:04 PM |

[UPDATE: For analysis of today's filings, read "Examining the DOJ Request for a Stay."]

This afternoon, two days after U.S. District Court Judge Virginia Phillips issued an injunction halting all enforcement of the military's "Don't Ask, Don't Tell" policy, the U.S. Department of Justice filed a request that Phillips stay her order in Log Cabin Republicans v. United States pending an appeal of the case to the U.S. Court of Appeals for the Ninth Circuit, according to LCR.

The government also announced in one of the filings that it "intends to appeal the Court's decision."

Christian Berle, deputy executive director of LCR, told Metro Weekly prior to the filing, "Attorneys from White and Case have been in contact with [Department of Justice Civil Division Attorney] Paul Freeborne this afternoon (morning in Los Angeles), where Freeborne indicated DOJ's intent to file a request for a stay pending appeal from Judge Phillips in District Court."

Berle continued, "If Phillips denies that request, they intend to ask for an administrative stay while she considers their motion for a stay. If Phillips denies that ruling, they will make a request for an emergency stay from Phillips so that they can request a stay from the Ninth Circuit."

In its request, the government filing formally stated:

Defendants the United States of America and Robert M. Gates, Secretary of Defense, hereby apply ex parte for an order staying the application of the Court’s entry of a permanent injunction in this case pending appeal. In the alternative, defendants request that the Court grant an immediate stay of its injunction while the Court considers defendants’ application for a stay pending appeal. At a minimum, should the Court decline to enter a stay pending appeal or an immediate stay to permit it to consider defendants’ request for a stay pending appeal, defendants request that the Court enter an immediate stay to permit the Court of Appeals an opportunity to consider entry of a stay.

News of the stay request came hours after Servicemembers Legal Defense Network announced that it had received an email sent today by Air Force Judge Advocate General Lt. Gen. Richard C. Harding to members of the JAG Corps advising that "the Department of Defense will abide by [the] terms" of Phillips's injunction while "the United States Government is contemplating whether to appeal and to seek a stay of the injunction."

Harding concluded by noting, "Further guidance on this and related issues will be provided as it is made available by DoD. Inform your commanders of this injunction and its terms."

Defense Department spokeswoman Cynthia Smith clarified in an email to Metro Weekly, "Earlier today, the Staff Judge Advocate Generals from the Military Services, in consultation with the OSD Office of General Counsel, sent to their Service Staff Judge Advocate counterparts in the field an email informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 USC 654, commonly known as the 'Don't Ask/Don't Tell' statute. The email noted that the US Government is contemplating whether to appeal and to seek a stay of the injunction."

Smith continued, "The Department of Defense will of course obey the law, and the email noted that, in the meantime, the Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling."

With news of today's expected filing, the directives will remains in effect, although it is not clear how long -- if a stay is granted -- they will be in effect.

In a statement about the anticipated filing, Berle added, "After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend 'Don't Ask, Don't Tell.'

"Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution. If this stay is granted, justice will be delayed, but it will not be denied," he said. "Meanwhile, we urge Senate Majority Leader Harry Reid to do what it takes in the lame duck session to end 'Don't Ask, Don't Tell' legislatively.  If Senator Reid treats the minority party fairly, the votes will be there to end 'Don't Ask, Don't Tell' once and for all."

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