Wednesday, October 20, 2010

Breaking: DoJ Files Emergency Request to Stay DADT Injunction

UPDATE: A three-judge panel has granted a temporary stay in Judge Virginia Phillips' ruling in the case of Log Cabin Republicans vs. The United States, giving the U.S. Military temporary powers to enforce DADT until the panel has a chance to consider the merits of the Justice Department's request.

The Metro Weekly blog Poliglot reports:
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."
This means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide 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.
This is not, however, 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.
If a stay is granted pending the appeal, though, 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.
This just in from The San Diego Gay and Lesbian News:
SAN FRANCISCO – Attorneys for the Department of Justice this morning asked the Ninth Circuit Court of Appeals for an emergency stay of Judge Virginia Phillips’ permanent injunction that prohibits enforcement of the military’s “Don’t Ask, Don’t Tell” policy.

"We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court's resolution of the government's motion for a stay pending appeal, which would maintain the status quo that prevailed before the district
court's decision while the Court considers the government's stay motion," the DOJ attorneys wrote in their filing with the court.

The legal action was expected.

On Tuesday, Judge Phillips had denied the DOJ’s request for an emergency stay and DOJ attorneys said they would appeal that decision.

Meanwhile, the Pentagon is allowing gays and lesbians to enlist. Dan Choi, who was drummed out of the military because of DADT, tweeted this morning that he passed the Army's written test today. But the legal mess could complicate the future service of any enlistees who declare they are gay or lesbian, should DADT policy go back into place.
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