Bench Memos

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Ninth Circuit Stay of Injunction Against Don’t Ask, Don’t Tell


To the surprise of no sober mind (except those who are surprised when the Ninth Circuit acts responsibly), a Ninth Circuit motions panel yesterday granted the government’s motion to stay pending appeal the implementation of a federal district judge’s injunction against enforcement of the Don’t Ask, Don’t Tell law (in Log Cabin Republicans v. United States).

The panel’s per curiam opinion noted, among other things, that the district court’s “analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.” As I’ve explained, the Obama administration’s (and then-Solicitor General Elena Kagan’s) irresponsible failure to seek Supreme Court review of a rogue Ninth Circuit ruling made possible the district court’s wayward ruling.

The per curiam opinion was joined in full by Judge Diarmuid O’Scannlain and Judge Stephen Trott. In a limited dissent, Judge William Fletcher stated that he “would stay the district court’s order in all respects but one: I would allow the district court’s order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal.” Like the majority, I can’t see the sense of Fletcher’s exception.


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