DOJ Asks 9th Circuit to Hold Up Case Determining Constitutionality of DADT

Attorney General Eric Holder

By Karen Ocamb -

Late Friday afternoon, Eastern time, the Department of Justice filed it’s brief asking the 9th Circuit Court of Appeals to stop moving forward in the case of Log Cabin Republicans v. United States of America, the federal challenge to the constitutionality of Don’t Ask, Don’t Tell.


Here’s how Earle Miller, one of the attorneys from White & Case who’s representing LCR, explained what happened:

“What DOJ filed today was not a new motion, it is the reply brief on the motion they already filed on December 29.  (A party files a motion; the other party files an opposition; then the moving party files a reply.  This is the reply.)  That motion had asked the 9th Circuit to suspend the briefing schedule on the appeal while the certification process unfolds.
We had suggested to the government that we would agree to suspend the briefing IF they would agree to suspend actual discharges for the same period of time.  They rejected that.  So they are asking the court to essentially stay the appeal pending certification, while they remain free to pursue DADT investigations and discharges during that time.  In this reply brief, they are also now asking for a one-month extension of the due date for their appellate brief (now Jan. 24; they’re asking for Feb. 23) in the event that the court denies their motion to stay the appeal.
Their reply brief again brought up their claim that the court’s injunction was based only on “alleged injuries to two of [LCR's] members whose standing to sue is dubious.”  As we have argued repeatedly in previous briefing, that mischaracterizes the nature of our lawsuit and the findings of the district court.  The government keeps hammering on this argument because they see it as a way to attack the judgment without having to get into the merits of the claim.”

The DOJ wrote (see brief below):

“Holding this appeal in abeyance is appropriate out of respect for the orderly process mandated by Congress and because when certification occurs no further briefing will be necessary. Indeed, not even Log Cabin can dispute that this case will be moot once certification requirements are met and repeal becomes effective. The motion should be granted.
1. Log Cabin, in opposing the government’s abeyance motion, contends that the Court and the parties should ignore Congress’s decision to establish an orderly process for repeal of § 654, which, Log Cabin suggests, has no bearing on this case. Instead, Log Cabin speculates that “it is likely that the hearing and this Court’s determination of this appeal will take place before repeal is ultimately effective.
There is no reason to credit this prediction. Briefing in this case is currently scheduled to conclude on March 8 and this Court denied a motion to expedite the oral argument date, instead indicating that oral argument would be set in the ordinary course. Expedition Order 2 (Attachment 1). In the ordinary course oral argument would likely not be scheduled for some time, and any panel decision, to say nothing of any final en banc determination, would likely issue at least months after argument…..
The district court entered a permanent worldwide injunction against enforcement of a duly enacted Act of Congress on the basis of alleged injuries to two of plaintiff’s members whose standing to sue is dubious. Gov’t Stay Mtn. 6-9. In granting the government’s request for a stay of the district court order pending appeal, this Court weighed the equities and concluded that they favor the government, not plaintiff. The Court noted that “Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal” in a case of this kind, Order 3 (Attachment 3), and observed that the immediate, court-ordered repeal of the statute would produce “immediate harm and precipitous injury,” Order 5-6. Congress has now provided for an orderly process for repeal of § 654, confirming this Court’s concerns about an immediate, chaotic repeal process. There is no basis for Log Cabin’s latest request to upend that carefully crafted political compromise.”

LCR v USA – Gov Reply in Support of Motion to Hold Appeal in Abeyance

If the court decides not to hold the appeal in abeyance, the DOJ asked for a 30-day extension to file its opening brief and excerpts of record, up to and including February 23, 2011.

-end-