Log Cabin Republicans v. United States of America et al

Filing 73

STATUS REPORT Joint Status Report filed by Plaintiff Log Cabin Republicans, Defendant United States of America. (Hunnius, Patrick)

Log Cabin Republicans v. United States of America et al

Doc. 73

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DAN WOODS (State Bar No. 78638) PATRICK HUNNIUS (State Bar No. 174633) WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] Attorneys for Plaintiff Log Cabin Republicans MICHAEL F. HERTZ PAUL G. FREEBORNE U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, P.O. Box 883 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Defendants United States of America and Robert M. Gates UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. CV04-8425 VAP (Ex) JOINT STATUS REPORT 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. Status Conference: Date: January 28, 2009 Time: 9:00 a.m. Complaint Filed: October 12, 2004 Trial Date: None scheduled

LOG CABIN REPUBLICANS, a nonprofit corporation,

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JOINT STATUS REPORT
Dockets.Justia.com

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Plaintiff Log Cabin Republicans ("Plaintiff"), on the one hand, and Defendants 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"), on the other hand, submit the following Joint Status Report in anticipation of the January 28, 2009 status conference in this action. Procedural History Plaintiff filed its complaint in the above-captioned action on October 12, 2004. The action presents a constitutional challenge to the United States Military's "Don't Ask, Don't Tell, Don't Pursue" statute. The case was initially assigned to Judge Schiavelli. On December 14, 2004, Defendants moved to dismiss Plaintiff's complaint. On March, 12, 2006, the Court granted the motion to dismiss with leave to amend, on standing grounds. Plaintiff filed its first amended complaint on April 28, 2006. Defendants again moved to dismiss on June 12, 2006. A hearing on the motion to dismiss was held on June 18, 2007 before Judge Schiavelli, at the conclusion of which the Court stated that the matter was submitted for decision. In May 2008, while the motion remained under submission, the Ninth Circuit issued its decision in Witt v. Air Force, 527 F.3d 806 (9th Cir. 2008). As a result of that decision, on May 23, 2008, Judge Schiavelli stayed all further proceedings in this action and vacated the submission of the motion to dismiss. The stay was to remain in effect until the final disposition in Witt. On July 24, 2008, Plaintiff filed a Petition for Writ of Mandamus before the Ninth Circuit challenging the stay order as improperly indefinite. On October 16, 2008, the Ninth Circuit ordered the Government to respond to Plaintiff's Petition. On October 30, 2008, the Government responded to the Petition. The Petition is currently pending. While the stay was in effect, Judge Schiavelli retired from the bench and the -1LOSANGELES 802972 (2K)

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case was reassigned to this Court. On December 4, 2008, the Ninth Circuit denied rehearing and denied rehearing en banc in Witt. 548 F.3d 1264 (9th Cir. 2008). Plaintiff's Position In light of the Ninth Circuit's denial of rehearing and of rehearing en banc in Witt, Plaintiff submits that the stay order should be lifted and this case should resume. The Witt holding is now authoritative and provides added guidance to this Court in adjudicating the currently pending motion to dismiss. As a result, Plaintiff requests that this Court set a schedule for the parties to submit additional briefing and argument addressing the effect of the Witt holding upon the pending motion to dismiss. Plaintiff further requests that, at the conclusion of this briefing, the motion to dismiss again be argued and then decided. Defendants' discussion, below, provides the Court a preview of their arguments regarding the effect of the Witt decision. Plaintiff will not burden this Court with substantive argument at this time. Plaintiff notes, however, that while defendants initially advocate for the maintenance of stay, the balance of their submission augurs in favor of lifting of the stay. For example, defendants recognize that Witt does not impact Plaintiff's First Amendment and equal protection challenges to the "Don't Ask, Don't Tell, Don't Pursue" statute. Those challenges remain ripe for this Court to decide without further briefing or argument. Defendants also correctly note that the panel in Witt adjudicated an "asapplied" challenge to the statute. The impact of Witt upon facial challenges to the statute is thus similarly an issue ripe for determination by this Court. It calls for added argument by the parties. However, the additional briefing plaintiff requests should not be limited to this narrow issue. Plaintiff requests the opportunity to address the entirety of the Witt holding and its effect upon any and all aspects of the pending due process claim. -2LOSANGELES 802972 (2K)

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This Court should also vacate the stay in the interests of judicial efficiency as it would moot Plaintiff's pending Petition for Writ of Mandamus. Defendants' Position Defendants believe that the Court's Order staying this matter should remain in effect until the Government has a full and adequate opportunity to decide whether to seek a writ of certiorari of the Ninth Circuit's decision in Witt and, if such a writ is sought, for the Supreme Court to review that request and render a decision. The Ninth Circuit's substantive due process analysis in Witt, requiring heightened scrutiny of the policy, reflects a shift in Ninth Circuit precedent. The Court properly recognized that the analysis adopted by the panel in Witt should not be applied to allegations presented in the complaint in this case until the impact of Witt is finally settled. Defendants also note that the issue between the parties is the same issue that is now before the Ninth Circuit on Plaintiff's Mandamus Petition in which it asks the Ninth Circuit to vacate the existing stay order. This Court may wish to await the Ninth Circuit's decision before acting upon Plaintiff's scheduling request. To the extent the Court believes that the effect of Witt should be briefed now, Defendants propose that such briefing be focused upon having Plaintiff explain how it can pursue a "facial" challenge to the Don't Ask, Don't Tell statute, 10 U.S.C. § 654, rather than an "as-applied" challenge in light of Witt. The panel in Witt held that its analysis "is as-applied rather than facial." Witt, 527 F.3d at 819. In so holding, the panel noted that "`[t]his is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.'" Id. (quoting Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432 447, 105 S. Ct. 3249, 87 L.Ed.2d 313 (1985)). This distinction is of great significance in constitutional jurisprudence. In fact, it is the only basis that the panel had for distinguishing the Ninth Circuit's precedent in Beller v. Middendorf, 632 F.2d 788, -3LOSANGELES 802972 (2K)

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(9th Cir. 1980), which ruled that a predecessor policy to the Don't Ask, Don't Tell statute survived heightened scrutiny. See Witt, 527 F.2d at 820-21. Yet, Plaintiff has represented that its challenge is a facial challenge. See e.g., Writ of Mandamus filed by Log Cabin Republicans, dated July 21, 2008, at 4 ("Witt involves an "as-applied" challenge to the policy while the Log Cabin Republicans' complaint involves a facial challenge to the policy"). In light of that position, Plaintiff should first explain how its facial substantive due process challenge can proceed under the threshold, as-applied analysis in Witt before the Court wades into the other aspects of the Witt panel's decision. If Plaintiff cannot make this showing, the case can come to a conclusion and no further briefing is necessary. Witt does not impact the First Amendment and equal protection claims already briefed, and argued, by the parties under the Defendants' already submitted motion to dismiss.

Dated: January 21, 2009

WHITE & CASE LLP By: /s/ Patrick Hunnius Attorneys for Plaintiff Log Cabin Republicans

Dated: January 21, 2009

U.S. DEPARTMENT OF JUSTICE By:

Paul G. Freeborne Attorneys for Defendants United States of America and Robert M. Gates

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