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9th Circuit leaves ‘Don’t Ask, Don’t Tell’ in place; prohibits investigations, discharges

Saturday, July 16, 2011
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The 9th Circuit U.S. Court of Appeals granted an emergency order Friday night, temporarily reinstating its original stay of an order that had prohibited the government from enforcing Don’t Ask, Don’t Tell.

But the three-judge panel, led by 9th Circuit Chief Judge Alex Kozinski, prohibited the government from “investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy” and indicated it would rule later this month on whether to extend the stay.

The temporary reinstatement of the stay continues the extraordinary state of flux in the status of the federal law banning openly gay people from the military.

Last September, a federal district court judge ruled Don’t Ask, Don’t Tell (DADT) to be unconstitutional and ordered the government to stop enforcement of the law immediately and worldwide. The 9th Circuit granted a stay of that order on November 1. Congress, in December, passed a law providing for DADT to be repealed — but only after an indefinite period of training, written certification by the President, the Secretary of Defense, and the chairman of the Joint Chiefs of Staff, and a 60-day delay.

Then, July 6, in a move that Lambda Legal Defense characterized as “stunning,” the 9th Circuit issued an order lifting its stay. The Pentagon said it would comply, but then, on July 11, the 9th Circuit gave the government 10 days to “show cause” why the court should not dismiss as moot an appeal seeking to defend “Don’t Ask, Don’t Tell.”

U.S. Assistant Attorney General Tony West filed the DOJ’s response July 14 (and a slightly amended version July 15), asking for an emergency order to reinstate the original stay “and permit the orderly process for repealing [DADT] to resume.”

In doing so, DOJ essentially reiterated the 9th Circuit’s own reasoning in granting the original stay. DOJ said “an abrupt, court-ordered end to [DADT] would undermine carefully crafted efforts of the political Branches to bring about an orderly transition in policy.”

But DOJ also provided new information that appears to have made a difference to the 9th Circuit panel. It submitted a statement from Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness. The statement, among other things, said the military expects certification “will be presented for decision” to the Secretary of Defense and the Chairman of the Joint Chiefs of staff “in late July or early August.”

“In the meantime,” said the amended request, “a new, more rigorous process was put in place for evaluating discharges under [DADT].” And it noted that, since the DADT repeal measure was passed, “one Service member has been discharged under [DADT] and that individual requested an expedited discharge.”

DOJ also responded July 14 to the 9th Circuit July 11 order that it “show cause” why the court should not dismiss as moot the government’s appeal in Log Cabin Republicans v. U.S.

The government argued that the 9th Circuit should not find the appeal moot “because a live controversy remains regarding the constitutionality of the statute as it now exists.”

“But even that controversy will become moot once repeal of [DADT] becomes effective 60 days following the President’s certification; and,” said DOJ, “once this case becomes moot, under the Court’s established practice it would vacate the district court’s judgment and global injunction, and remand with instructions for the district court to dismiss the complaint.”

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