A federal appeals court on Wednesday granted the government’s emergency motion for a temporary stay of a worldwide injunction barring enforcement of Don’t Ask, Don’t Tell, the military’s ban on openly gay service members.
The U.S Court of Appeals for the 9th Circuit provided no reason for its action other than “to provide this court with an opportunity to consider fully the issues presented.”
The three-judge panel gave the Log Cabin Republicans, the plaintiff in the underlying case, until Oct. 25 to oppose the government’s broader request for a stay of the injunction pending its appeal.
In a prepared statement later on Wednesday, Dan Woods, a partner in the Los Angeles office of White & Case who represents the Log Cabin Republicans, called the 9th Circuit’s order “a minor setback.”
“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, and the district court’s injunction, which it entered after hearing all the evidence in the case, will remain in place until the appeal is finally decided.”
In a motion filed on Wednesday, lawyers for the Justice Department asked the 9th Circuit for an immediate administrative stay to give them time to argue for a complete stay pending their appeal. U.S. District Judge Virginia Phillips in Riverside, Calif., on Tuesday refused to grant the government’s request for a stay of her Oct. 12 injunction.
Absent a stay, wrote Henry Whitaker, an appellate attorney in the Justice Department’s civil division in Washington, “the district court’s order precludes the administration of an Act of Congress and risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.”
The Pentagon announced on Tuesday that it is telling recruiters to accept openly gay applicants — with the understanding that the legal situation surrounding Don’t Ask, Don’t Tell remains in limbo.
The move was highlighted in court papers filed with the 9th Circuit by Log Cabin Republicans opposing the government’s request for an administrative stay.
“The government has already acted nimbly in response to the district court’s injunction: it has instructed its field recruiting offices to process applications for enlistment from openly gay and lesbian applicants,” Woods wrote. “The fact that the government can and did issue such instructions and comply with the injunction immediately shows that the military will not sustain irreparable harm from compliance and belies the need for any temporary stay.”
Woods, in an interview with The National Law Journal, said the Pentagon’s action undermines the government’s position.
“Typically, you have to get a stay by showing you’re likely to win on appeal,” he said. “And I hope we put it out on this brief that they haven’t done that. You need this stay to prevent some irreparable harm to you.”The government argued that it has a good chance of succeeding on appeal for several reasons. First, Whitaker wrote, the Log Cabin Republicans lacked standing because the organization brought the case on behalf of two individuals whose membership and alleged injuries caused by Don’t Ask, Don’t Tell remain in dispute.
Also, judges historically have deferred to Congress in matters involving the military, he wrote. Third, by issuing a worldwide injunction, Phillips inappropriately treated the case as a class action, rather than one that applies only to an organization “purporting to advance the interests of two individuals,” he added.
“The sweeping injunction therefore constitutes an extraordinary and unwarranted intrusion into military affairs,” Whitaker said.
As for harm, Whitaker said, the injunction would force the military to conduct a “massive” revision of its regulations, including those relating to benefits, and policies involving equal opportunity and harassment.
Woods argued that Phillips had rejected all of the same arguments before.
On the 9th Circuit panel hearing the stay request are Diarmuid O’Scannlain, a Reagan nominee who was confirmed in 1986; Stephen Trott, a Reagan nominee who has been on senior status since 2004, and William Fletcher, a Clinton nominee who was confirmed in 1998.
In 2008, O’Scannlain dissented from a 9th Circuit decision denying a rehearing of a case involving a constitutional challenge to Don’t Ask, Don’t Tell. A three-judge panel had ruled in Witt v. Dep’t of Air Force that such constitutional challenges were subject to an elevated standard of review, making it more difficult for the government to defend the law.
The decision was a key precedent on which Phillips relied when she found the law unconstitutional. In denying a rehearing of the Witt decision, O’Scannlain wrote: “At the end of the day, Witt creates a forum in the judicial branch (rather than the political branches) to challenge the validity and the particular application of ‘Don’t Ask, Don’t Tell,’ even though such policy infringes no constitutional right.”
Amanda Bronstad can be contacted at firstname.lastname@example.org.