BREAKING: Ninth Circuit Stays DADT Injunction

Posted by Chris Geidner
October 20, 2010 7:08 PM |

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has issued a temporary stay of U.S. District Judge Virginia Phillips's Oct. 12 order in Log Cabin Republicans v. United States halting all enforcement of the military's "Don't Ask, Don't Tell" policy.

After DADT had been halted from enforcement for nearly 200 hours, the Ninth Circuit order legally makes DADT enforceable again for the time being.

In a brief order, Judges O'Scannlain, Trott and W. Fletcher wrote:

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 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. [The "additional guidance" -- likely reinstituting DADT enforcement -- could come at any time and without warning.]

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.

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