Ninth Circuit Grants Stay of DADT Ruling Pending Appeal

The Ninth Circuit Court of Appeals has granted the government its request for a stay in the injunction barring enforcement of 'Don't Ask, Don't Tell' pending appeal, the AP reports:

Dadt "Monday's decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals means gay Americans who disclose their sexual orientations still can't enlist in the armed forces and can be discharged. The panel granted the government's request for a stay while it challenges the trial court's ruling that the ban on openly gay service members is unconstitutional. The same panel imposed a temporary hold keeping 'don't ask, don't tell' in place last week. Monday's ruling also heightens pressure on the Obama administration to persuade the U.S. Senate to repeal the 1993 law before a new Congress is sworn in."

The Wonk Room notes:

In an eight-page decision, the justices identify “three reasons that persuade us to grant a stay pending appeal”:

- First, 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.

- Second, “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies.”

- Third, the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth.

Here's the order:

DADT Stay Order


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—  admin

BREAKING: Ninth Circuit Court Stays Injunction Against Enforcing DADT

The Ninth Circuit Court of Appeals has granted the DOJ’s emergency request for a temporary stay on Judge Virginia Phillips’ order to stop enforcing DADT. Via Chris Geidner at Metro Weekly, here’s the brief ruling.

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.

What this may mean (if anything) for Dan Choi, I have no idea.

Joe. My. God.

—  admin

DOJ Files Emergency Stay Request with Ninth Circuit on ‘DADT’

The Department of Justice has filed an emergency request with the Ninth Circuit Court of Appeals requesting a stay on the injunction barring enforcement of DADT. The DOJ requests the Ninth Circuit to enter the stay today.

Here's the document (via Politico):

PPM143_101020_dadt_stay


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—  John Wright

DOJ has asked Ninth Circuit for emergency stay in DADT case by today

Not unexpected, but Josh Gerstein from Politico broke the news via twitter:

Justice Department just filed emergency stay request with 9th Circuit on #DADT. More TK

From the motion, here’s what the Obama administration wants:

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.

I’ve uploaded the document to Scribd.com:
Emergency Stay Request




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—  John Wright

Ninth Circuit: Marriages on Hold

A three-judge panel grants Proposition 8 supporters a stay in the case but schedules expedited arguments in the appeal for early December.
Daily News

—  John Wright

BREAKING: Ninth Circuit grants stay of Walker’s decision pending appeal

Just received this notice via email from the Ninth Circuit:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

So, the motion to stay is granted, pending appeal. That means marriages won’t begin on Wednesday or anytime soon.

The appeal has been expedited. Arguments will be held in early December. One other thing: This order states that Ninth Circuit Rule 31-2.2 does not apply, meaning no extensions. Under Rule 31-2.2 (a), “If good cause is shown, the clerk or a designated deputy may grant an oral request for a single extension of time of no more than 14 days to file an opening, answering or reply brief. Such extensions may be applied for and granted or denied by telephone.” No one gets the 14 days extension. Sounds like the judges want this case to move ahead without delay.

And, the appellants, meaning the pro-Prop. 8 side, have to explain why they have standing. That remains a major issue for them moving forward. For more on this issue, see Prof. David Cruz’s post: Do the Prop. 8 proponents have Standing to Appeal?

I’m sure we’ll have more on this soon.




AMERICAblog Gay

—  John Wright

Ninth Circuit Responds To Stay Motion

Things are moving VERY quickly. Brian Devine reports at Courage Campaign:

The Ninth Circuit just issued an Order stating that the Plaintiffs’ response to the Motion to Stay is due by 11:00 p.m. tonight. The Prop 8 supporters’ reply, not to exceed 15 pages, is due by 9:00 a.m. on Monday, August 16, 2010. This suggests that the Ninth Circuit is preparing to rule on the Motion to Stay before Judge Walker’s temporary stay expires on August 18th at 5:00 p.m. It’s surprising that the Court only gave the Plaintiffs about 9 hours to file their brief, and gave the Appellants until Monday to Reply. But I wouldn’t read too much into this. They know that everyone anticipated the Motion and that everyone’s briefs are essentially written already.

Sounds like everybody wants to get to Hawaii.

Joe. My. God.

—  John Wright