Ninth Circuit Puts Stay on DADT Injunction Back In Effect, But Continues Bar on Discharges

In an order filed by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, the court has kept in place the “Don’t Ask, Don’t Tell” policy while it considers the appeal in Log Cabin Republicans v. United States — with the caveat that it also kept in place the bar on “investigating, penalizing, or discharging” any current servicemembers that it ordered on July 15.

The move from the court’s chief judge, Alex Kozinski, and Judges Kim Wardlaw and Richard Paez came just a few hours after President Barack Obama and military leaders certified that the military was ready for DADT repeal, the final step necessary to bring about the end of “Don’t Ask, Don’t Tell” — technically, 10 U.S.C. 654 — in 60 days.

The judges maintained that “[i]n its briefs, the government does not contend that 10 U.S.C. § 654 [– the DADT law –] is constitutional,” but also noted today’s certification, writing, “The President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have now certified that the implementation of repeal of Don’t Ask, Don’t Tell is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the armed forces.”

johnson.jpgAs such, it reversed its July 6 order lifting the stay on U.S. District Court Judge Virginia Phillips’s judgment that stopped the government from enforcing DADT worldwide — while keeping the bar on discharges in place until repeal takes effect on Sept. 20 or it issues a ruling on the appeal, whichever comes sooner.

The catch, though, is that the Ninth Circuit isn’t done dealing with the case before repeal takes effect. Almost three weeks before then, on Sept. 1, the government is due to defend DADT — and its request to vacate the trial court judge’s ruling that DADT is unconstitutional — in the appeals court.

Now that certification has happened, the question of whether the case is “moot” after repeal and the trial court judgment should be vacated, which would effectively wipe the ruling off the books, likely will be one of the key questions before the court at the Sept. 1 argument.

At the Pentagon today, Defense Department general counsel Jeh Johnson defended the government’s argument, saying, “Overall, we take that view that once certification and repeal happens, that lawsuit becomes moot.”

Later, he added, That lawsuit is about the constitutionality of 10 U.S.C. 654. … 10 U.S.C. 654 is being repealed. … In 60 days, it will be off the books. So, that’s why we say the lawsuit should be dismissed because the issue is moot.”

LCR’s attorneys, however, have argued that certification and subsequent repeal do not end matters, noting on July 21, that — in addition to the injunction it sought — Phillips’s judgment in the case included a declaration that “DADT infringes the fundamental rights of current and prospective servicemembers and violates their Fifth Amendment due process rights and their First Amendment rights of freedom of speech and petition.”

Accordingly, LCR asserts, “Because individuals who were discharged under DADT during the 17 years that statute has been in effect continue to this day to sustain identifiable collateral consequences from their unconstitutional discharges, a substantial controversy continues to exist between the parties that will not be removed by repeal and the case will not then be moot.”

As the 60-day clock ticks down — and if this evening’s Ninth Circuit order is kept in place — there will not be any more servicemembers discharged under DADT. The question of what will happen to the LCR suit after repeal, however, remains far less clear.

Read the order: NinthCirOrder-LCRvUS.pdf

[Photo:  Jeh C. Johnson, Defense Department general counsel (left); Maj. Gen. Steven. A. Hummer, chief of staff to the Repeal Implementation Team (RIT); and Vee S. Penrod, deputy assistant secretary of defense for personnel and readiness and chairwoman of the RIT brief reporters about the “Don’t Ask, Don’t Tell” repeal certification on Friday, July 22, 2011. (Photo by Chris Geidner.)]

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