A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled on September 29 that the implementation of the Don't Ask Don't Tell Repeal Act of 2010 on September 20, 2011, put an end to the "case or controversy" raised many years ago when Log Cabin Republicans sued the federal government for a judicial declaration that the Don't Ask Don't Tell policy was unconstitutional and for an injunction against its enforcement. As such, ruled the panel, the case is "moot," depriving the court of appeals of jurisdiction to determine the government's appeal of District Judge Virginia Phillips' order of a year ago, which had ruled that the anti-gay military policy violated the 5th and 1st Amendments of the Constitution.
The status of Judge Phillips' decision has been a much-contested issue ever since Congress passed and President Obama signed the Repeal Act last December. Under the Repeal Act, the DADT policy would end if certain conditions were met. First, the President and Secretary of Defense had to consider the recommendations of a Task Force that the Secretary had appointed earlier in 2010 to examine the issues raised by ending the policy, and then the President, the Secretary, and the Chairman of the Joint Chiefs of Staff would have to certify that all necessary steps had been taken to make it possible to end the policy without harming the effectiveness of the military in carrying out its mission.
After Judge Phillips filed her amended opinion last October, the government sought a stay of her injunction against the policy pending an appeal, which the 9th Circuit granted. Then, as briefing and argument deadlines loomed early in 2011, the government moved to put the case "on hold" while the process of implementing the Repeal Act took place. Dan Woods of White & Case, counsel for Log Cabin Republicans, pointed out to the court that the Repeal Act did not specify a target date for implementation, leaving open the possibility that the process of implementation could drag on for a long time (even though President Obama had announced in his State of the Union Address in January that he anticipated implementation would be achieved during 2011). DOJ argued that the issue before the 9th Circuit was no longer whether the original DADT policy was constitutional, but rather whether the mechanism adopted for implementation of repeal — which involved keeping the policy in place for an indefinite period of time until "certification" led to eventual implementation — was constitutional. The court refused to put the case "on hold" and directed the parties to submit their briefs.
Thus began the arguments, stretching over the ensuing months, about whether it was appropriate for the court to stay its hand or proceed in the normal course to determine the cross-appeals on the merits. (LCR had appealed the district court's decision to dismiss its equal protection challenge, while the government was appealing her decision that DADT violated due process and freedom of speech.) When it appeared in July that implementation of the Repeal Act was imminent, the court actually briefly lifted the stay on Judge Phillips' injunction, but it was promptly restored upon urgent motion by the government, which argued that the Repeal Act provided for an orderly process of implementation that could be upset by an abrupt mandate to end the policy.
Finally, after the necessary officials had certified that implementation should take place and a target date was fixed as September 20, 2011, the argument of mootness took on immediate salience. The court heard oral arguments on September 1. LCR insisted that even if implementation occurred on September 20, the question whether the DADT policy was constitutional remained significant for several reasons. The Repeal Act merely authorized rescission of the DADT policy, but provided no affirmative authorization for gay people to serve in the military, in essence throwing the policy issues back to the Defense Department and, more generally, the Executive Branch. Furthermore, there are various other cases and claims related to injuries suffered by individuals due to the DADT policy that are pending in the courts or that could be brought, as to which the constitutionality of the policy is a salient issue. LCR argued that these considerations kept the issue alive for appeal.
But the government persuaded the court otherwise, by pointing to several very clear Supreme Court precedents. It seems very well established in federal law, or at least the court persuasively explains it to be so, that if Congress acts to repeal a statute that is the subject of constitutional challenge, a lawsuit filed to have the statute declared unconstitutional is moot. The court pointed out that LCR's standing as a plaintiff – much contested and still contested by the government – was limited to seeking a declaration that the policy was unconstitutional and an injunction against its enforcement. Now that the policy has been repealed, an injunction against its enforcement would be meaningless as, in effect, it no longer exists. The court deemed it purely speculative that a future Congress would re-enact it, pointing to the hypothetical prospect of swift re-enactment as a limited exception to the general rule of mootness.
Furthermore, said the court of appeals panel, since the government had appealed promptly and had never abandoned its position that the policy was constitutional and that the district court's decision was wrong, it was not enough to declare the issue moot and dismiss the appeal. The court found that this would be unfair to the government, which had been deprived of its chance at appellate vindication of its defense. Thus, the appropriate course was to vacate Judge Phillips' decision and return the case to the district court with directions to dismiss the case as moot, thus effectively wiping Judge Phillips' decision off the books.
The court decisively declared that the district court's decision is thus a complete nullity:
"Because Log Cabin has stated its intention to use the district court