Appeals Court Grants DADT Stay

BY Kerry Eleveld

October 20 2010 11:10 AM ET

Less than 24 hours after a federal judge refused to block an injunction against "don't ask, don't tell," the U.S. court of appeals for the ninth circuit has done so — at least temporarily.

A three-judge panel ordered a stay requested by the Justice Department "temporarily in order to provide this court with an opportunity to consider fully the issues presented" in the federal lawsuit against DADT, waged by the Log Cabin Republicans since 2004.

It's unclear whether the ruling by ninth circuit judges Diarmuid F. O'Scannlain, Stephen S. Trott, and William A. Fletcher was a unanimous one or a split decision.

The panel ruled that attorneys representing the Log Cabin Republicans may file an opposition to its stay of the injunction by Monday. "We will be filing a much more detailed opposition to the motion for full stay pending appeal," said White and Case attorney Earle Miller, part of the legal team representing the gay Republican group in the lawsuit.

Earlier on Wednesday, the Department of Justice asked the ninth circuit to rule before the end of day on U.S. district judge Virginia A. Phillips's rejection of its request for a stay of her worldwide injunction on the “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,” said the filing.

The Log Cabin Republicans issued the following statement Wednesday on the Justice Department's request to the ninth circuit:

"It has been eight days since the Department of Defense has suspended enforcement of the 'Don't Ask, Don't Tell' policy, and there has been no evidence of any adverse consequences," said the group's deputy executive director, Christian Berle. "Log Cabin Republicans believes that the Department of Justice is seriously underestimating the professional capacity of our brave servicemembers in continuing under a military that allows open service by gays and lesbians. We are prepared to defend this injunction and this ruling in whatever court or forum in which we are challenged."

Attorneys representing the Log Cabin Republicans vigorously fought the government's request for a stay. "Each argument that the government asserts as a basis for a stay has already been raised in a district court, which rejected them all — not cursorily, or in passing at an oral argument, but in extensive reasoned opinions at multiple stages of the proceedings below," attorney Dan Woods wrote Wednesday.

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