Log Cabin Republicans v. United States of America et al, No. 2:2004cv08425 - Document 53 (C.D. Cal. 2008)
Court Description: EX PARTE APPLICATION to Vacate Minutes of In Chambers Order/Directive - no proceeding held, Case Stayed,, 52 filed by Plaintiff Log Cabin Republicans. (Attachments: # 1 Proposed Order Granting Log Cabin Republicans' Ex Parte Application to Vacate Stay)(Hunnius, Patrick) (Entered: 05/30/2008)
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Log Cabin Republicans v. United States of America et al 1 2 3 4 5 6 7 Doc. 53 DAN WOODS (State Bar No. 78638) PATRICK HUNNIUS (State Bar No. 174633) SAYEMA J. HAMEED (State Bar No. 223193) WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 E-mail: dwoods@whitecase.com phunnius@whitecase.com shameed@whitecase.com Attorneys for Plaintiff Log Cabin Republicans 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 LOG CABIN REPUBLICANS, a nonprofit corporation, ) ) ) ) Plaintiff, ) ) vs. ) UNITED STATES OF AMERICA and ) ROBERT M. GATES (substituted for ) Donald H. Rumsfeld pursuant to FRCP ) 25(d)), SECRETARY OF DEFENSE, in ) his official capacity, ) ) Defendants. ) ) Case No. CV04-8425 GPS (ex) LOG CABIN REPUBLICANS’ (1) EX PARTE APPLICATION FOR ORDER VACATING STAY; (2) MEMORANDUM OF POINTS AND AUTHORITIES; AND (3) DECLARATION OF PATRICK HUNNIUS Filed: October 12, 2004 Trial Date: None scheduled 22 23 24 25 26 27 28 LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY Dockets.Justia.com 1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 2 Pursuant to Local Rule 7-19, plaintiff Log Cabin Republicans hereby applies ex 3 parte for an order from the Court vacating its Order Staying Action in Light of Ninth 4 Circuit’s May 21, 2008 Decision in Witt v. Department of Air Force, et al. Because 5 the constitutional rights of gay and lesbian soldiers who are bravely serving in our 6 nation’s armed forces continue to be violated as long as this Court-ordered stay of 7 indefinite duration remains in place, Log Cabin Republicans seeks immediate relief 8 from this stay and, accordingly, seeks this relief ex parte. 9 Good cause exists for the Court to grant this application. The stay exceeds the 10 limits of the Court’s discretion for the following reasons: (1) the indefinite duration 11 of the stay will cause undue delay and further hardship to gay and lesbian service 12 members; (2) the Ninth Circuit’s decision in Witt is currently valid and binding 13 precedent that can and should be applied by this Court; and (3) because there are 14 material differences between the issues raised in Witt and those here – Witt does not 15 address the First Amendment claim at issue here and Witt involves an “as-applied” 16 challenge while this case involves a facial constitutional challenge to “Don’t Ask, 17 Don’t Tell” – staying this matter pending further proceedings in Witt would not 18 contribute to the resolution of issues that must be decided in this case. 19 Pursuant to Local Rule 7-19, Log Cabin Republicans has provided notice of 20 this ex parte application to opposing counsel, as set forth in the accompanying 21 Declaration of Patrick Hunnius, and asked opposing counsel whether they would 22 oppose the application. As of the time of this filing, counsel for Log Cabin 23 Republicans had not received a response. 24 /// 25 /// 26 /// 27 /// 28 /// -1LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 This application is based on this ex parte application, the accompanying 2 memorandum of points and authorities, the accompanying Declaration of Patrick 3 Hunnius, all pleadings, records, and files in this action, and such evidence and 4 argument that may be presented at any hearing on this application. 5 6 DATED: May 30, 2008 WHITE & CASE LLP 7 8 By: /S/ Patrick Hunnius Attorneys for Plaintiff Log Cabin Republicans 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 TABLE OF CONTENTS 2 3 4 Page I. INTRODUCTION...............................................................................................1 II. PROCEDURAL BACKGROUND .....................................................................2 III. GOOD CAUSE EXISTS FOR THE COURT TO VACATE THE STAY ........5 5 6 7 A. The Indefinite Duration Of The Stay Will Cause Undue Delay And Further Hardship To Gay And Lesbian Service Members .......................6 B. The Ninth Circuit’s Decision In Witt Is Good Law And Should Be Applied ......................................................................................................8 C. A Stay Of This Action Pending Final Resolution Of Witt Would Not Simplify The Legal Issues To Be Decided In This Case..........................9 8 9 10 11 12 13 IV. OPPOSING COUNSEL ....................................................................................11 V. CONCLUSION .................................................................................................11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iLOSANGELES 762139 (2K) 1 TABLE OF AUTHORITIES 2 Page 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dependable Highway Express, Inc. v. Navigators Insurance Co., 498 F.3d 1059 (9th Cir. 2007) ........................................................................... 6, 7 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)................................................................................................... 9 Landis v. North American Co., 299 U.S. 248 (1936)....................................................................................... 5, 6, 9 Lawrence v. Texas, 539 U.S. 558 (2003)........................................................................................... 3, 8 Levya v. Certified Grocers of California, Ltd., 593 F.2d 857 (9th Cir. 1979) ................................................................................. 6 Mendenhall v. Cedarapids, Inc., 5 F.3d 1557 (Fed. Cir. 1993) ................................................................................. 8 Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) ................................................................................. 9 Newdow v. United States Congress, No. 00-16423, 2002 U.S. App. LEXIS 12826 (9th Cir. June 27, 2002) ............... 9 Odom v. Microsoft, 486 F.3d 541 (9th Cir. 2007) ................................................................................. 7 United States v. Mitlo, 714 F.2d 294 (3d Cir. 1983) .................................................................................. 8 United States v. W.R. Grace, -- F.3d --, No. 06-30192, 2008 WL 2052204 (9th Cir. May 15, 2008)................ 7 26 27 28 LOSANGELES 762139 (2K) -ii- 1 DOCKETED CASES 2 Witt v. Department of Air Force, No. 06-35644 (9th Cir. May 21, 2008) ......................................................... passim 3 4 5 FEDERAL STATUTES 6 10 U.S.C. § 654....................................................................................................... 2, 10 7 FRCP 25(d) ................................................................................................................... 3 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOSANGELES 762139 (2K) -iii- 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION 4 Gay and lesbian soldiers are bravely serving in our nation’s armed forces. Gay 5 and lesbian soldiers are bravely dying in the war in Iraq. As bravely as they serve 6 and die for our country, they cannot demonstrate a propensity or intent to engage in 7 homosexual acts, nor can they openly state that they are homosexual, or they will be 8 punished by the “Don’t Ask, Don’t Tell” policy.1 This lawsuit seeks to ensure that 9 they are able to continue to serve our country while being free to exercise the 10 constitutional rights they are fighting for. 11 Log Cabin Republicans filed this case three and a half years ago to vindicate 12 the rights of present and former servicepersons. Last week, the Ninth Circuit issued 13 its groundbreaking decision in Witt v. Department of Air Force, No. 06-35644 (9th 14 Cir. May 21, 2008), a case filed 18 months after this case. 2 At the same time gay 15 and lesbian soldiers are bravely fighting and dying for our country, this Court has 16 avoided ruling on the important constitutional issues in the case. The Court waited a 17 year to decide the government’s first motion to dismiss and then granted it on the 18 limited basis of the standing issue; misplaced the file after the Log Cabin Republicans 19 amended the complaint; and did not decide the government’s second motion to 20 dismiss. 21 Now, instead of deciding the government’s motion in light of Witt, the Court 22 has stayed this action pending the resolution of hypothetical further proceedings in 23 Witt, such as possible en banc review. The government, however, has not yet 24 decided whether it will seek further proceedings before the Ninth Circuit (and may 25 never do so). Declaration of Patrick Hunnius (“Hunnius Decl.”), ¶ 3. Moreover, the 26 1 27 28 See Washington Post, “Public Death, Private Life,” by Deborah Howell, p. B06, March 30, 2008 (regarding Army Maj. Alan G. Rogers, a decorated war hero killed in an explosion in Baghdad, who was also gay) (attached as Exhibit A to the accompanying Declaration of Patrick Hunnius). 2 Major Witt filed her complaint on April 12, 2006. The Log Cabin Republicans filed its complaint on October 12, 2004. -1LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 Court entered its stay order even though neither party asked it to do so and without 2 giving the parties an opportunity to brief or address whether a stay would be 3 appropriate. 4 By this ex parte application, plaintiff Log Cabin Republicans seeks to vacate 5 the stay. As shown below, however well meaning the Court’s wish to spare the 6 parties from “undertak[ing] briefing [regarding the impact of Witt on the present 7 case] until the future impact of the three-judge panel determination in Witt is settled” 8 (May 23 Order, p. 2), the stay exceeds the limits of the Court’s discretion. 9 First, the indefinite duration of the stay will cause undue delay and further 10 hardship to gay and lesbian service members whose constitutional rights continue to 11 be violated. Second, the Ninth Circuit’s decision in Witt is currently valid, binding 12 precedent that can and should be applied by this Court. Finally, there are material 13 differences between the issues raised in Witt and those here: (1) Witt does not address 14 the First Amendment claim at issue here; and (2) Witt involves an “as-applied” 15 challenge while this case involves a facial constitutional challenge to “Don’t Ask, 16 Don’t Tell.” As such, staying this matter pending further proceedings in Witt would 17 not contribute to the resolution of legal issues that must be decided in this case. 18 This case urgently needs to be decided so that it, like Witt, can proceed through 19 the Ninth Circuit and, potentially, to the Supreme Court before any more brave gay or 20 lesbian soldiers die for our country without the full protection of our Constitution, 21 including its “substantial protection to adult persons in deciding how to conduct their 22 private lives in matters pertaining to sex.” Witt, supra, slip op. at 5864 (quoting 23 Lawrence v. Texas, 539 U.S. 558, 572 (2003)). 24 II. 25 PROCEDURAL BACKGROUND 26 On October 12, 2004, plaintiff Log Cabin Republicans filed its complaint in 27 this action seeking a declaration that the “Don’t Ask, Don’t Tell” policy codified in 28 10 U.S.C. § 654 is unconstitutional, because it violates the rights of gay and lesbian -2LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 service members to: (1) privacy under the Due Process Clause of the Fifth 2 Amendment; (2) freedom of speech under the First Amendment; and (3) equal 3 protection of the laws under the Fifth Amendment. This lawsuit was the first direct 4 challenge to the “Don’t Ask, Don’t Tell” policy since the Supreme Court’s decision 5 in Lawrence v. Texas, 539 U.S. 558 (2003), which held that the criminalization of 6 homosexual conduct by the State of Texas was unconstitutional under the Due 7 Process Clause. 8 9 Defendants United States of America and Donald H. Rumsfeld, Secretary of Defense (“Defendants”) filed a motion to dismiss on December 14, 2004.3 Log Cabin 10 Republicans filed opposition papers on January 10, 2005. Defendants filed reply 11 papers on January 31, 2005. On March 3, 2005, without hearing oral argument, the 12 Court took the government’s motion under submission as of March 7, 2005. 13 Following completion of the parties’ briefing on the motion, the parties filed two joint 14 requests for decision in accordance with Local Rules 83-9.2 and 83-9.4. 15 On March 21, 2006, more than one year after taking the motion under 16 submission, the Court issued its ruling on the government’s motion to dismiss. The 17 Court did not address any constitutional issues. Instead, the Court ruled that the 18 complaint did not adequately allege Log Cabin Republicans’ standing to sue. The 19 Court ordered that Log Cabin Republicans file an amended complaint and declaration 20 that identifies by name a Log Cabin Republican member injured by “Don’t Ask, 21 Don’t Tell.” 22 In accordance with the Court’s order, in April 28, 2006, Log Cabin 23 Republicans filed a first amended complaint and the Declaration of John Alexander 24 Nicholson, identifying him as a member of Log Cabin Republicans and a former 25 member of the U.S. Army who was subjected to separation proceedings and 26 discharged under the “Don’t Ask, Don’t Tell” policy. 27 28 3 Pursuant to FRCP 25(d), Secretary of Defense Robert M. Gates is substituted for Donald H. Rumsfeld. -3LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 Once again, Defendants moved to dismiss the first amended complaint on June 2 12, 2006. Log Cabin Republicans filed opposition papers on June 30, 2006, and 3 Defendants filed a reply on July 7, 2006. Although the hearing on the government’s 4 motion was scheduled for July 24, 2006, the Court took the hearing off calendar, 5 stating its intent to reschedule the hearing after further consideration of the parties’ 6 submissions. With no hearing date in place, the parties filed a joint request for 7 determination on November 14, 2006. On November 27, 2006, the Court notified the 8 parties that it had discovered that the case file was destroyed because it was 9 inadvertently marked as “Closed” by courthouse staff. The Court advised that it 10 would set a hearing date at a future date. On January 12, 2007, the parties filed 11 another joint request for decision with the Court. In response to a Court order 12 requiring a “John Doe” declaration, Log Cabin Republicans filed a John Doe 13 declaration on behalf of a member who is currently serving in the armed forces. 14 A hearing was finally held on the government’s motion on June 18, 2007, 15 almost one year after the parties had originally briefed the motion. At the conclusion 16 of the hearing, the Court stated that the matter was submitted for decision. Because 17 the Court did not issue a decision on the matter within 120 days of the hearing as 18 required by Local Rule 83-9.1, the parties filed yet another joint request for decision 19 on October 24, 2007. On October 30, 2007, the Court denied the parties’ joint 20 request for decision as moot in light of a brief memorandum of supplemental 21 authority. In accordance with Local Rule 83-9.1.2(a)(ii), the matter was again 22 submitted for decision when, on November 13, 2007, the parties completed briefing 23 in connection with the submitted supplemental authority. 24 Because the Court did not issue a decision within 120 days of the matter being 25 submitted for decision again, the parties filed another joint request for decision on 26 March 20, 2008. The Court did not issue a decision or advise the parties of an 27 intended decision date within 30 days of the joint request for decision. Thus, the 28 -4LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 parties filed a joint request for a decision to the Chief Judge of the Central District on 2 April 30, 2008. 3 To date, the Court has not issued a decision on the government’s motion to 4 dismiss. Rather, on May 23, 2008, the Court issued an order staying the action in 5 light of the Ninth Circuit’s May 21, 2008 Decision in Witt v. Department of Air 6 Force, et al. The order staying the action relies on the Court’s assumption that “en 7 banc relief will be requested and certiorari possibly sought” in the Witt decision, 8 such that the Court does not wish to issue a ruling on the government’s motion “until 9 the future impact of the three-judge panel determination in Witt is settled.” The 10 11 order does not specify a duration or deadline for the stay. Significantly, while the Court’s order assumes that the government will seek en 12 banc review, counsel for the government informed Log Cabin Republicans that no 13 such decision has been made yet. Hunnius Decl., ¶ 3. 14 III. 15 GOOD CAUSE EXISTS FOR THE COURT TO VACATE THE STAY 16 17 There are limits to a court’s discretionary power to stay proceedings. Landis v. North American Co., 299 U.S. 248, 254-256 (1936). As the Supreme Court held, 18 A district court has inherent power to control the disposition of the causes on its docket in a manner which will promote economy of time and effort for itself, for counsel, and for litigants. The exertion of this power calls for the exercise of a sound discretion. Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among these competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. 19 20 21 22 23 24 25 26 27 Id. at 254-55. If there is a “fair possibility” that the stay will “work damage” to one of the parties, the stay is inappropriate absent a showing of hardship or inequity by the party required to go forward. Id. at 255. 28 -5LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 “Only in rare circumstances will a litigant in one cause be compelled to stand 2 aside while a litigant in another settles the rule of law that will define the rights of 3 both.” Id. at 255. That is exactly what the Court has done in this case. The Court 4 has issued a stay which requires a litigant in one action, the Log Cabin Republicans, 5 to stand aside while a litigant in another action, Major Witt, settles the rule of law that 6 affects both actions. While well-intentioned, the Court’s order staying the action 7 exceeds the limits of sound discretion and must be vacated. Neither the balance of 8 hardships, nor the prospect of settling the law or simplifying the issues, justifies a 9 stay. Rather, the stay will cause further hardship and damage to the members of Log 10 Cabin Republicans who, nearly four years after the filing of this case, are still waiting 11 for their day in court. Further, the stay will not settle or simplify the legal issues to be 12 decided in this case. The time for delay is over. The time for the Court to act is now. 13 A. The Indefinite Duration Of The Stay Will Cause Undue Delay And 14 Further Hardship To Gay And Lesbian Service Members 15 In Landis, the District Court for the District of Columbia stayed a lawsuit until 16 a related lawsuit in the District Court for the Southern District of New York was 17 decided on appeal by the Supreme Court or otherwise finally resolved. The Supreme 18 Court in Landis reversed the lower court’s decision, holding that a stay lasting until 19 the New York district court suit was finally resolved exceeded “the limits of fair 20 discretion.” Id. at 256. The Supreme Court remanded to the District of Columbia 21 district court to consider whether to grant a stay of what was likely to be fairly short 22 duration. Id. at 259. 23 The Ninth Circuit has held that a “stay should not be granted unless it appears 24 likely the other proceedings will be concluded within a reasonable time in relation to 25 the urgency of the claims presented to the court.” Levya v. Certified Grocers of 26 California, Ltd., 593 F.2d 857, 864 (9th Cir. 1979). In other words, “stays should not 27 be indefinite in nature.” Dependable Highway Express, Inc. v. Navigators Ins. Co., 28 498 F.3d 1059, 1066 (9th Cir. 2007). In Dependable Highway Express, the Ninth -6LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 Circuit held that the district court abused its discretion by issuing a stay that provides 2 no specific deadline for the stay’s termination and no indication that the stay would 3 last only for a reasonable time. Id. at 1066-67. 4 Here the Court’s order runs afoul of Landis, Levya, and Dependable Highway 5 Express because it provides no specific deadline for the stay’s termination and no 6 indication that the stay will last only for a fairly short time. Rather, the Court’s order 7 provides that “proceedings in this action are STAYED pending the final disposition 8 in Witt.” While it is not clear what the Court means by “final disposition” of Witt, at 9 a minimum, the Court contemplates the government’s potentially seeking en banc 10 relief. However, the government has not decided what course of action, if any, it will 11 seek with respect to the Witt decision. Hunnius Decl., ¶ 3. The Court’s order is, 12 therefore, based on a contingency (the rehearing of the Witt decision or seeking 13 certiorari) which may or may not even occur. 14 Moreover, a stay pending en banc review could extend for twelve to eighteen 15 months. See, e.g., U.S. v. W.R. Grace, -- F.3d --, No. 06-30192, 2008 WL 2052204 16 (9th Cir. May 15, 2008) (en banc decision filed May 15, 2008; initial three-judge 17 panel decision filed on July 12, 2007); Odom v. Microsoft, 486 F.3d 541(9th Cir. 18 2007) (en banc opinion filed on May 4, 2007; initial argument before three-judge 19 panel occurred in November 2005). 20 Furthermore, this Court’s stay will simply prolong and exacerbate the 21 hardships suffered by the members of the Log Cabin Republicans and other gay and 22 lesbian soldiers who are bravely serving in our nation’s armed forces. It has been 23 almost four years since the filing of this lawsuit, and the Court has yet to rule on the 24 government’s motion to dismiss this case, which has prevented this case from moving 25 forward. In the meantime, gay and lesbian soldiers continue to serve their nation with 26 honor and sacrifice their lives without the benefit of the full protection of our 27 Constitution. Issuing a stay of indefinite duration will cause further undue delay, 28 deprive the members of Log Cabin Republicans of their day in court, and permit the -7LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 continued violation of constitutional rights of gay and lesbian soldiers who are 2 fighting to protect those very same constitutional rights. 3 B. 4 The Ninth Circuit’s Decision In Witt Is Good Law And Should Be Applied Aside from the prejudice to Log Cabin Republicans arising from the indefinite 5 delay that would result from deferring to lengthy, potential further proceedings in 6 Witt, the Court’s hesitancy to apply the rule enunciated in Witt is unwarranted; Witt 7 is currently good law, binding on this Court, and ready to be applied. See, e.g., United 8 States v. Mitlo, 714 F.2d 294, 298 (3d Cir. 1983) (emphasizing that “precedents set 9 by higher courts are conclusive on courts lower in the judicial hierarchy and leave to 10 the latter no scope for independent judgment or discretion” (internal quotations and 11 citations omitted)); Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1570 (Fed. Cir. 12 1993) (“Stare decisis in essence makes each judgment a statement of law, or 13 precedent, binding in future cases before the same court or another court owing 14 obedience to its decision”). 15 The Ninth Circuit’s ruling in Witt has given this Court the framework to rule 16 on the government’s motion to dismiss in this case. Considering competing briefs 17 that, like the briefs before this Court, parsed the Supreme Court’s decision in 18 Lawrence v. Texas, 539 U.S. 558 (2003), the Ninth Circuit rejected the government’s 19 argument that rational basis review was appropriate. Witt, supra, slip op. at 5853 20 (“Having carefully considered Lawrence and the arguments of the parties, we hold 21 that Lawrence requires something more than traditional rational basis review”). The 22 Ninth Circuit held that, in light of Lawrence, the proper level of scrutiny to apply to 23 Major Witt’s substantive due process challenge to the “Don’t Ask, Don’t Tell” policy 24 is that of heightened scrutiny, not the rational basis review applied in the past. Witt, 25 supra, slip op. at 5863. The Ninth Circuit also affirmed the dismissal of Major Witt’s 26 equal protection claim under rational basis review. Id. at 5867-68. It would not be 27 difficult for this Court to apply Witt to this case and make similar rulings with respect 28 to the substantive due process and equal protection claims. -8LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 The Ninth Circuit could have readily stayed or postponed the effectiveness of 2 its ruling in Witt, as it has done in other cases concerning controversial legal issues. 3 E.g., Newdow v. United States Congress, No. 00-16423, 2002 U.S.App. LEXIS 4 12826, at *1 (9th Cir. June 27, 2002) (Ninth Circuit stayed its own judgment in 5 Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) (overruled by Elk 6 Grove Unified School District v. Newdow, 542 U.S. 1, 17-18 (2004)), that the words 7 “under God” in pledge of allegiance violate Establishment Clause of Constitution, 8 pending resolution of any petitions for rehearing or en banc consideration). 9 However, the Ninth Circuit did not stay its ruling in Witt. Rather, the Ninth 10 Circuit allowed its ruling in Witt to have immediate effect. By postponing the 11 application of Witt to this case, this Court has elected to do what the Ninth Circuit did 12 not do. By staying this action, the Court has denied the application of Witt to only 13 one litigant in the Ninth Circuit, the Log Cabin Republicans, and has rendered Witt 14 good law everywhere except in this action. This is improper. 15 C. A Stay Of This Action Pending Final Resolution Of Witt Would Not 16 Simplify The Legal Issues To Be Decided In This Case 17 One factor to consider in issuing a stay is whether the stay will allow for issues 18 of law to be simplified as a result of the stay. Landis, supra, 299 U.S. at 254-255. 19 Although Witt gives this Court significant guidance by setting forth the heightened 20 scrutiny test which the government must satisfy in order to justify its intrusion on the 21 substantive due process rights of homosexual service members, Witt does not address 22 certain key legal issues presented in this case. 23 First, the Ninth Circuit’s opinion in Witt does not address whether the “Don’t 24 Ask, Don’t Tell” policy violates the First Amendment rights of gay and lesbian 25 servicemembers, and, therefore, staying this action pending the “resolution” of Witt 26 will not contribute to the resolution of, or otherwise simplify, this pressing 27 constitutional issue raised by the complaint in this case. The first amended complaint 28 alleges that the “Don’t Ask, Don’t Tell” policy violates the First Amendment by -9LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 impermissibly restricting, punishing and chilling all public and private speech that 2 would tend to identify military members of Log Cabin Republicans as gays or 3 lesbians. First Amended Complaint, ¶ 47. This restriction on speech and expression 4 is vast and over-inclusive, because it applies to not only public but also private 5 speech and applies “at all times that the member has a military status, whether the 6 member is on base or off base, and whether the member is on duty or off duty.” 10 7 U.S.C. § 654(a)(10). Witt does not address this important constitutional issue. 8 9 Second, Witt involves an “as-applied” constitutional challenge to the “Don’t Ask, Don’t Tell” policy, and, therefore, the Ninth Circuit also held that its heightened 10 scrutiny analysis is as-applied rather than facial. Witt, supra, slip op. at 5864. This 11 case, on the other hand, involves a facial constitutional challenge to the “Don’t Ask, 12 Don’t Tell” policy. 13 In support of its facial challenge to the constitutionality of “Don’t Ask, Don’t 14 Tell,” Log Cabin Republicans alleges several facts in its complaint evidencing the 15 animus of the policy towards gay and lesbian members of the nation’s armed forces. 16 First Amended Complaint, ¶ 36. Such facts include: service members in non-combat 17 positions have been discharged under “Don’t Ask, Don’t Tell,” including medical 18 personnel and translators; the policy is applied more frequently in peace time than in 19 war time; the policy disproportionately impacts women; and members of the U.S. 20 military fight side by side with coalition forces from other nations which allow gay 21 and lesbian service members to serve openly. Id. The facial challenge to “Don’t 22 Ask, Don’t Tell” based on these and other facts is not addressed in Witt. 23 Because Witt addresses neither the First Amendment claim nor the facial 24 constitutional challenge at issue here, these issues will not be addressed during any 25 potential en banc review of Witt. As such, staying this action pending final 26 resolution of Witt will not help to resolve these significant constitutional issues that 27 must be decided by this Court. Accordingly, the stay is unnecessary and will serve 28 only to further delay the adjudication of this case. -10LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY 1 IV. 2 OPPOSING COUNSEL 3 Pursuant to Local Rule 7-19, the names, address and telephone number of 4 counsel for opposing parties, the United States of America and Secretary of Defense 5 Robert Gates, are as follows: 6 7 8 9 10 11 JEFFREY BUCHOLTZ PAUL G. FREEBORNE U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 E-mail: paul.freeborne@usdoj.gov Counsel for Log Cabin Republicans has provided notice of this ex parte 12 application to opposing counsel, as explained in paragraph 4 of the accompanying 13 Declaration of Patrick Hunnius. 14 V. 15 CONCLUSION 16 Justice delayed is justice denied. Log Cabin Republicans, and its members 17 who are bravely serving in our nation’s armed forces and protecting our constitutional 18 rights, are entitled to their day in court, which is long overdue. The time for the 19 Court to act is now. For all the reasons discussed above, the Court should vacate its 20 Order Staying Action in Light of Ninth Circuit’s May 21, 2008 Decision in Witt v. 21 Department of Air Force, et al. and allow the case to move forward, so that it can 22 continue its journey through the appellate courts. Respectfully submitted, 23 24 DATED: May 30, 2008 WHITE & CASE LLP 25 26 By: /S/ Patrick Hunnius Attorneys for Plaintiff Log Cabin Republicans 27 28 -11LOSANGELES 762139 (2K) LOG CABIN REPUBLICANS’ EX PARTE APPLICATION FOR ORDER VACATING STAY EXHIBIT A EXHIBIT B
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