Appeals Court Vacates Historic Decision Against “Don’t Ask, Don’t Tell”

“Emptiness and misery/Took it all away ya see/Yes… bitter”

Just one day after briefing was completed, the United States Court of Appeals for the Ninth Circuit has invalidated U.S. District Judge Virginia Phillips’s historic October 2010 decision holding that the federal statute and regulations known as “Don’t Ask, Don’t Tell” (DADT) were unconstitutional.   Unless this decision (available here) is reversed by a larger panel of Ninth Circuit judges (or, even less likely, by the Supreme Court), the legal effects of the trial court’s decision will be erased.

The federal government had appealed the district court decision invalidating DADT.  After Congress authorized repeal of the policy excluding openly lesbigay persons from military service, the government argued that the district court’s judgment should be vacated, wiping it out as if it had never been issued.  This summer, the Ninth Circuit directed the Log Cabin Republicans to file briefs showing why their lawsuit was not moot in light of the repeal of DADT.  The Log Cabin Republicans and various amici (“friends of the court”) organizations, including Lambda Legal and Servicemembers Legal Defense Network, filed briefs explaining why, even with DADT repealed, that unconstitutional policy continues to have legal consequences on those who have served and been expelled, so that the dispute should not be considered moot.

The eager-beaver panel of three Ninth Circuit judges, however, rejected these arguments, taking an exceedingly narrow view of the circumstances under which federal courts can continue to adjudicate a case once an underlying statute has been repealed.  Reagan appointee Diarmuid O’Scannlain was apparently so unhappy with his inability to reach the merits of the appeal that he cast aside the majority’s posture of judicial restraint and chose to concur with an advisory opinion explaining why he would have held that the district court was wrong to rule DADT unconstitutional.  He attempted to defend this move as giving guidance to district court judges about how to handle claims of unenumerated right, but it is fundamentally in tension with numerous, long-standing pronouncements that federal court judges simply lack the constitutional power to give advisory opinions.

If it stands, the Ninth Circuit’s ruling “vacate[s] the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings.”  Other litigation over DADT, such as the recent class action suit challenging the reduction by half of the post-separation payments received by servicemembers ejected pursuant to DADT, will have to start from scratch, as the Ninth Circuit intended:  “Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.”

One can only hope that an en banc panel of the Ninth Circuit may take a more realistic view of the ongoing ramifications of the now-repudiated DADT policy and reinstate the district court’s important decision.