Brody's Notes... Ninth U. S. Circuit Court of Appeals Grants Emergency Stay On DADT Injunction

By Brody Levesque (Washington DC) OCT 20 | The Ninth U. S. Circuit Court of Appeals granted the request filed earlier today by  Assistant U. S. Attorney Paul Freeborne asking that the court stay the injunction order issued on Tuesday by U. S. District Court Judge Virginia Phillips.

Freeborne in his filing yesterday with Judge Phillips had written: 

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.

In today's brief, Freeborne, in the 25-page motion with the 3 judge panel in San Francisco, argued that Judge Phillips, acting alone, had exceeded her authority:

He argued that the sweeping injunction against a duly enacted Act of Congress was wrong as a matter of law.  It is also at odds with basic principles of judicial restraint that requires courts to limit injunctive relief to parties before the court, and is contrary to decisions of other federal courts, which have sustained the constitutionality of the statute.

Moreover, the judge's order has caused confusion and uncertainty at the Defence Department and among Gays & Lesbians servicemembers now serving. If an appeals court later reverses Judge Phillips and affirms the constitutionality of the law, it would create tremendous uncertainty about the status of those same servicemembers who may reveal their sexual orientation in reliance on the judge's order suspending the law.

The  9th Circuit Court Judges O'Scannlain, Trott and W. Fletcher stated:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented. Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

The lead attorney for the plaintiffs, the Log Cabin Republicans, said the group was disappointed with the appeals court's action.

"We view the decision as nothing more than a minor setback," Dan Woods said. "We didn't come this far to quit now, and we expect that once the Ninth Circuit has received and considered full briefing on the government's application for a stay, it will deny that application.

Chris Geidner, Senior political correspondent for the Washington D. C. based weekly LGBT magazine, 'Metroweekly' writes:

The judges' order means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide -- sometime after Oct. 25 -- whether to issue a stay pending the appeal of the case to the Ninth Circuit.

This does not immediately change the military's policy of not enforcing DADT, as the Oct. 15 guidance from Undersecretary of Defense for Personnel and Readiness Clifford Stanley stated that, while seeking a stay, "the Department of Defense will abide by the terms of the injunction" and stated that "additional guidance" would come if a stay is granted.

This also is not a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide -- sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request -- whether to issue a stay pending the outcome of the appeal. The decision will likely come soon after the Oct. 25 submission by LCR because the court will not hear oral arguments in the case and stated in its order that the government will not be allowed to file a reply brief, which would happen in the ordinary course of appellate briefing.

If a stay is granted pending the appeal, however, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.