Reply Brief
Reply Brief
Reply Brief
10A465
In the
Supreme Court of the United States
Applicant,
vs.
Respondents.
Dan Woods
[email protected]
Counsel of Record
Earle Miller
[email protected]
Aaron A. Kahn
[email protected]
WHITE & CASE LLP
633 West Fifth Street, Suite 1900
Los Angeles, California 90071
Telephone: (213) 620-7700
Facsimile: (213) 452-2329
Attorneys for Applicant
TABLE OF CONTENTS
Page
D. Conclusion. ................................................................................... 11
-i-
TABLE OF AUTHORITIES
Page
CASES
RULES
Sup. Ct. R. 10(c)................................................................................................... 4
MISCELLANEOUS
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A. Log Cabin’s Application satisfies any standard for vacating the court of
appeals’ stay of the district court’s injunction.
Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327
heavily relies, and the procedural posture is even more compelling here,
where the district court wrote many detailed, thoughtful opinions supporting
vacated the court of appeals’ stay order because it was reasonable to believe
that five Members of the Court might agree with the district court’s reasoned
and because the applicants had convincingly argued that they would suffer
irreparable harm if the stay was not vacated, and the district court had
explicitly relied1 on the probable harm to the plaintiffs in denying the state’s
1 As did the district court here, in its lengthy and thorough order denying the government’s
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motion to stay its injunction. 448 U.S. at 1331-32. This Court should do the
same here.
Coleman v. PACCAR Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in
chambers); see also Meredith v. Fair, 83 S. Ct. 10, 11 (1962) (Black, J., in
chambers).
Log Cabin is not, as the opposition (at 2, 17) suggests, asking this
Court to “reweigh the harms to the parties” – the court of appeals never
weighed those respective harms in the first place. Whether, in this Court,
Log Cabin must show (as Log Cabin contends2) that the court of appeals
ignored the applicable law and therefore abused its discretion in granting a
stay, or must show (as the government contends3) that failure to vacate the
2See Nken v. Holder, ___ U.S. ___, 129 S. Ct. 1749, 1754, 1760-62 (2009) (vacating court of
appeals’ order denying stay and remanding for application of correct criteria).
3 See Certain Named and Unnamed Children, supra, 448 U.S. at 1331-32.
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stay will probably cause it irreparable harm and the Court eventually will
grant certiorari and agree with the district court’s decision, Log Cabin has
made an ample showing here that the court of appeals’ order must be vacated.
This case is very likely to ultimately come to this Court for decision.
Not only is the constitutionality of Don't Ask, Don't Tell in itself an issue of
substantial public importance, DADT also implicates more broadly the scope
Texas, 539 U.S. 558 (2003). This Court has had few opportunities to further
define the contours of the rights recognized in Lawrence. The Ninth Circuit
undertook that effort in Witt v. Department of the Air Force, 527 F.3d 806
(9th Cir. 2008), holding that DADT squarely implicates those rights and, as a
federal constitutional law that this Court should resolve; but it has not yet
had the vehicle to do so.4 Because this case will present that vehicle,
regardless whether the court of appeals reverses the district court, it is likely
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B. The opposition ignores critical points presented in the Application.
in the Application to show that the court of appeals’ stay order was
(at 22-24) speaks of “repeal” a dozen times in three pages. But as the
Application shows, and as the district court recognized, repeal through the
the government holds out – is far from assured; it is at best contingent, and a
has not been, but should be, settled by this Court, or has decided an important federal
question in a way that conflicts with relevant decisions of this Court.” Sup. Ct. R. 10(c).
The opposition also argues that because this Court denied certiorari in Cook v. Gates, 528
F.3d 42 (1st Cir. 2008), see Pietrangelo v. Gates, infra this note, it would similarly deny
certiorari here should the court of appeals reverse the district court. However, the majority
of the plaintiffs in Cook urged this Court to defer review of their case. Brief for the Cook
Respondents at *2-3, Pietrangelo v. Gates, 129 S.Ct. 2763 (mem.) (2009) (No. 08-824). They
argued that proper consideration by this Court of the constitutionality of DADT should await
the development of a factual record at trial. Id. This case now has a fully developed factual
record, following a two-week court trial with over twenty witnesses and a hundred
documentary exhibits.
Finally, the First Circuit’s decision in Cook expressly disagrees with the Ninth Circuit’s
decision in Witt. The decisions are irreconcilable. Assuming the Ninth Circuit decides this
case consistent with its precedent in Witt, it is not unlikely that this Court would grant
certiorari in this case to address the resulting circuit conflict.
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unlikely. The court of appeals’ order itself recognized that legislative repeal
Echoing the silence of the court of appeals’ order on this point, the
creating an equity in favor of the government,” that equity should be the only
the government’s favor.” That is not the law; if it were, this Court would
unconstitutional, and as, e.g., Certain Named and Unnamed Children, supra,
6State statutes, such as the one in question in Certain Named and Unnamed Children, enjoy
the same presumption of constitutionality as Acts of Congress. Davies Warehouse Co. v.
Bowles, 321 U.S. 144, 153 (1944).
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3. The opposition exaggerates what the district court’s injunction
does and does not require.
policies. But the opposition does not address the point made in the
Application that the district court’s injunction neither requires the military to
take any affirmative measures, nor prevents it from taking the steps the
immediate change that the injunction requires is that the military cease
the military believes it must implement may take place on whatever orderly
schedule the military determines will meet its needs, and will not run afoul of
the district court’s injunction. The district court’s order denying stay
addressed this in detail. App. 199a. The opposition’s silence on this point
acknowledges that the injunction does not cause cognizable harm to the
7 In this regard, it is noteworthy that the government never raised the implementation
specters set out in the Stanley Declaration, which it now argues warrant a stay, until after
the district court had entered its injunction. That declaration was filed in the district court
in connection with the government’s unsuccessful application for a stay there, and was
resubmitted to the court of appeals and now to this Court in the respective stay proceedings
on appeal, but, as the district court pointed out in denying respondents’ stay application
there, the government never raised any of those issues at trial, despite having the
opportunity to do so. App. 198a–199a. The government’s belatedness in asserting these
supposed harms counsels against a stay of the injunction. Cf. Stroup v. Wilcox, 549 U.S.
1501, 1501 (2006) (Roberts, C.J., in chambers) (“a request for extraordinary equitable relief is
certainly undermined when the central argument pressed was only mentioned by applicants
in passing in the court below”). As for the content of the Stanley Declaration, the Application
pointed out its many deficiencies (at 7), but the opposition makes no response.
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C. The opposition raises side issues as to which the district court’s
reasoned opinions are entitled to respect.
Application discussed above, the opposition raises several points that do not
tip the balance in favor of a stay of the injunction. The district court had
already addressed these points in its thoughtful orders, and its conclusions
should be given weight here. See Certain Named and Unnamed Children,
Scope of injunction. The opposition asserts (at 2, 26, 29) that Dep’t of
not control this case. Meinhold was an as-applied challenge to the military’s
Tell. The servicemember had been discharged on the basis of his statement
that he was gay, and challenged only his specific discharge. See, on remand,
Meinhold v. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994) (“Meinhold
Cabin to its proof on that basis. App. 0185a–0187a. At trial, Log Cabin
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proved DADT’s facial unconstitutionality by presenting seven expert
representing a broad cross section of the military – men and women, officers
operated constitutionally.
parties,” see Califano v. Yamasaki, 442 U.S. 682, 702 (1979), will by nature
be broader in scope than the relief suitable for a single plaintiff’s as-applied
challenge. See also Buchanan v. Evans, 439 U.S. 1360 (1978) (Brennan, J., in
Here, the district court found facial constitutional violations and then,
appropriate to the broad nature of that finding: as it held, “the nature of the
remedy stems from the nature of the challenge.” App. 0186a. The scope of
the district court’s injunction followed the scope of the proof, and is not an
question of Log Cabin’s standing to sue, though the court of appeals did not
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rely on this issue in its stay order. The opposition also repeatedly misstates
the nature of this case, claiming that Log Cabin brought it “purporting to
advance the interests of two individuals” (Opp. at 16) or based its standing on
Military deference. The opposition argues (at 13-15) that the judiciary
But this Court has never held that judicial deference to the military is
rights even in the military context. This is so even in a time of ongoing war,
as the Court’s recent decisions in Hamdan v. Rumsfeld, 548 U.S. 557 (2006),
8The district court’s 27-page order denying the government’s motion for summary judgment
on the standing issue is Document 170 in the PACER docket below, Central District of
California Case No. 2:04-cv-08425.
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and Hamdi v. Rumsfeld, 542 U.S. 507 (2007), make clear; the opposition does
not even address those decisions, nor does it rebut Log Cabin’s showing that
the highest civilian and military officials have admitted that DADT
insists that the Pentagon report must be completed before DADT may be
ended. But the opposition also references (at 27-28) the Secretary of
prove anew whether its members still face an imminent threat of discharge.
will cause no harm to the military. Shifting the discharge authority up the
chain of command can only have the effect of reducing the number of
9 Indeed, the Pentagon recently confirmed that since the Secretary of Defense’s October 21,
2010, directive, no discharges under DADT have occurred. Andrew Tighman, No Discharges
Yet Under Revamped Policy on Gays, Army Times, Nov. 5, 2010,
http://www.armytimes.com/news/2010/11/military-dont-ask-dont-tell-110410w/.
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argument here that delaying discharges pending appeal would cause injuries
D. Conclusion.
trial on the merits of the important constitutional issues raised by this case,
but the court of appeals’ order staying the enforcement of that judgment did
not take into account the speculative nature of repeal – the premise of the
government’s entire argument – and did not take into account the harms that
while a stay is in place. The court of appeals failed to analyze the stay
application in light of the governing law and the record before it in this case.
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