Ninth Circuit Keeps Bar on DADT Discharges In Effect While Considering DOJ Motion on Stay in Log Cabin Case

Posted by Chris Geidner
July 15, 2011 10:35 PM |

Although "temporarily reinstating" most of its stay of the injunction in the Log Cabin Republicans v. United States case tonight, the U.S. Court of Appeals for the Ninth Circuit kept in place the part of the injunction that bars the military from "investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

Responding to dueling requests from the Department of Justice and attorneys for the Log Cabin Republicans in the LCR v. United States challenge to "Don't Ask, Don't Tell," the appellate court in San Francisco this evening partially granted a request from the government to issue a temporary stay of the injunction of DADT put back in place by the Ninth Circuit since July 6 -- with a big caveat that keeps discharges from moving forward.

Thumbnail image for Thumbnail image for Thumbnail image for ca9.pngThe move puts the 1993 law banning military service back into effect until the court can make a more complete determination about whether to reconsider the July 6 order -- while continuing to prevent the military from "investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

The order from Chief Judge Alex Kozinski and Judges Kim Wardlaw and Richard Paez notes the additional information provided to the court in the government's most recent filing -- specifically, "the declaration of Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness; the representation that only one servicemember has been discharged under 10 U.S.C. § 654 since the passage of the Repeal Act; the representation that the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands have recently submitted their written advice regarding the status of their preparation for repeal and ability to satisfy the certification standards set by Congress; and the representation that repeal certification will be presented to the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff in a matter of weeks, by the end of July or early in August."

In order to consider the impact of what it terms these "previously undisclosed facts," the court granted the temporary stay and put back in place the stay originally entered by the Ninth Circuit on November 1, 2010, "in all respects except one. The district court's judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy."

Additionally, the court set a quick briefing schedule for supplementary information so that it can consider the motion to reconsider its order lifting the stay on July 6:

No later than 5:00 p.m. PDT on July 18, 2011, appellants shall supplement their motion for reconsideration to address why they did not present in their May 20, 2011, opposition to the motion to lift the stay the detailed information now presented in the motion for reconsideration. Appellee may file an opposition to the motion for reconsideration by 5:00 p.m. PDT on July 21, 2011. Appellants may file a reply in support of the motion by 12:00 p.m. PDT on July 22, 2011.

Read the order:AdminStay-LCRvUS.pdf

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