LCR v. USA - Minutes, Proceedings in Chambers 10/12/2010
LCR v. USA - Minutes, Proceedings in Chambers 10/12/2010
LCR v. USA - Minutes, Proceedings in Chambers 10/12/2010
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
None None
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
After Plaintiff filed the Request for Permanent Injunction (Doc No. 233),
Defendants filed the following objections to Plaintiff's Request: (1) Plaintiff's
proposed injunction is overbroad because it (a) should be limited to Plaintiff and its
members, (b) "would foreclose the United States from litigating the constitutionality of
DADT in other courts," (c) "improperly seeks to prevent the government from making
the showing permitted by the Ninth Circuit in Witt,"1 and (d) "impermissibly seeks to
effectively negate Courts of Appeals' rulings upholding DADT"; (2) Plaintiff's
proposed injunction "seeks to extend beyond enjoining DADT"; (3) "no injunction
1
Witt v. Dep't of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (holding the Don't
Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of
homosexuals, in a manner that implicates the rights identified in Lawrence," and is
subject to heightened scrutiny.).
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
should be entered or made effective until the Government has had an opportunity to
consider the terms of any injunction and move for a stay"; and (4) "Log Cabin is not
entitled to EAJA [Equal Access to Justice Act] Fees." (Doc. No. 235 (Defs.'
Objections) at i.) Plaintiff filed its Response on September 24, 2010 (Doc. No. 236)
and an Amended Request on September 28, 2010 (Doc. No. 238). On September
29, 2010, Defendants filed a "Supplement to Objections." (Doc. No. 239.)
II. ANALYSIS
A. Plaintiff Is Entitled to a Permanent Injunction
"The requirements for the issuance of a permanent injunction are 'the likelihood
of substantial and immediate irreparable injury and the inadequacy of remedies at
law.'" American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066-67
(9th Cir. 1995) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir. 1985),
modified, 796 F.2d 309 (9th Cir. 1986)).
Plaintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures
servicemembers by infringing their fundamental rights and violating (a) the
substantive due process rights guaranteed under the Fifth Amendment to the United
States Constitution, and (b) the rights to freedom of speech and to petition the
Government for redress of grievances guaranteed by the First Amendment to the
United States Constitution. (See Mem. Op. at 12-13, 74, 83, 85; see American-Arab
Anti-Discrimination Comm., 70 F.3d at 1071 (holding that violations of procedural
due process and First Amendment rights constitute irreparable harm).) Furthermore,
there is no adequate remedy at law to prevent the continued violation of
servicemembers' rights or to compensate them for violation of their rights. See
American-Arab Anti-Discrimination Comm., 70 F.3d at 1071 (holding there is no
adequate remedy at law for "denial of legalization based on a constitutional
violation").
Defendants do not contend Plaintiff has not satisfied these requirements for
issuance of a permanent injunction. In fact, Defendants do not address the
requirements in their Objections.
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
As Plaintiff correctly points out, it challenged the Act on its face, not as applied
to it or its members. (Resp. at 4-5.) Therefore, its entitlement to relief is not
constrained as Defendants suggest, and the Court is not limited to granting a remedy
that would affect only Plaintiff and its members. The Court found the Act
unconstitutional on its face; accordingly, the resulting remedy should be as broad as
necessary to achieve the relief Plaintiff sought. Furthermore, Plaintiff's proposed
injunction does not bind nonparties as Defendants suggest; instead, it binds the
actual, named Defendants in this action -- the United States of America and Robert
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
The remedy Plaintiff sought and obtained here was invalidation of the Don't
Ask, Don't Tell Act. The nature of the remedy stems from the nature of the challenge
-- here, a facial challenge. As set forth below, courts may invalidate a statute in its
entirety pursuant to a facial challenge, though partial invalidation is preferred where
possible.
In Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), the Ninth Circuit held a
district court did not abuse its discretion in ordering what was, in effect, nationwide
relief. There, plaintiff migrant workers sought a declaratory judgment that the
Migrant and Seasonal Agricultural Workers Protection Act applied to forestry workers
and an injunction requiring the Secretary of Labor to enforce the Act in the industry.
In analyzing the appropriate scope of the injunction, the Bresgal court noted, "The
Supreme Court has held that a federal agency is not necessarily entitled to confine
any ruling of a court of appeals to its immediate jurisdiction." Id. at 1170 (discussing
Califano v. Yamasaki, 442 U.S. 682, 702 (1979), which held there are no legal limits
on the geographical scope of a class action brought in federal district court). "Thus
there is no bar against class-wide, and nationwide relief in federal district or circuit
court when it is appropriate." Bresgal, 843 F.2d at 1170 (citations omitted).
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
grounds, 524 U.S. 569 (1998); Hodel v. Va. Surface Min. & Reclamation Ass'n, Inc.,
483 F. Supp. 425 (D.C. Va. 1980) (finding Surface Mining Control and Reclamation
Act unconstitutional and permanently enjoining the Secretary from enforcing various
provisions of the Act), rev'd on other grounds, 452 U.S. 264 (1981); see also
Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349 (Fed. Cir. 2002)
(noting that where a party challenges a regulation's facial validity, total invalidation is
an appropriate remedy).
b. Severability
Generally, however, an injunction "should be no more burdensome to the
defendant than necessary to provide complete relief to the plaintiff." (Defs.'
Objections at 3-4 (citing Califano, 442 U.S. at 702).) Accordingly, partial, rather than
total, invalidation is "the normal rule," and invalid provisions should be severed from
valid provisions whenever possible. Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 329, 331 (2006) (holding, in response to a facial challenge to
a statute's constitutionality, courts should issue a narrower remedy whenever
possible); United States v. AMC Entm't, Inc., 549 F.3d 760, 774-75 (9th Cir. 2008)
(Wardlaw, J., concurring in part and dissenting in part) (hereinafter "AMC Entm't (9th
Cir.)") ("district courts within our circuit commonly issue nationwide injunctions where
the 'injunction . . . is tailored to the violation of law that the Court already found -- an
injunction that is no broader but also no narrower than necessary to remedy the
violations." (citing California ex rel. Lockyer v. USDA, 468 F. Supp. 2d 1140, 1144
(N.D. Cal. 2006))); Golden Door, Inc. v. Odisho, 437 F. Supp. 956, 968 (N.D. Cal.
1977), aff'd, 646 F.2d 347 (9th Cir. 1980), abrogated on other grounds by Japan
Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866 (9th Cir. 2002) ("Plaintiff's
market area, and hence the sphere of its reputation, are nationwide. Accordingly, it
is entitled to nationwide protection against confusion and dilution. The scope of the
injunction must therefore be nationwide."); see Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684-86 (1987) (setting out rules governing severability of federal statutes);
Sabri v. United States, 541 U.S. 600, 608-09 (2004); Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 501-03 (1985); Regan v. Time, Inc., 468 U.S. 641, 653 (1984)
(plurality opinion) (adopting presumption of severability); United States v. Raines,
362 U.S. 17, 21 (1960); Champlin Refining Co. v. Corp. Comm'n, 286 U.S. 210, 234
(1932); Richard H. Fallon et al., Hart and Wechsler's The Federal Courts and the
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
Federal System 162-65 (6th ed. 2009) (describing severability doctrine as applied to
federal statutes).
In accordance with these principles, the Court considers whether the Act
contains constitutional provisions that are "separable" or "severable" from the
unconstitutional portions. Though the Government objected to the breadth of
Plaintiff's proposed injunction, it never addressed the possibility of severance.
Nevertheless, the Court has considered severability sua sponte and finds it
impossible to sever the unconstitutional provisions of the Act for the reasons
discussed below.
Here, severing the unconstitutional provisions of the Act would not leave a fully
operative law because the invalid provisions are so intertwined with any valid
provisions that a limiting construction is not feasible. The Act provides that any
member of the United States military who engages in "homosexual conduct" is
subject to discharge unless the servicemember is able to demonstrate that he or she
does not have a propensity to engage in "homosexual conduct." See 10 U.S.C. §
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
Defendants next argue that the Court should not issue a nationwide injunction
because other circuit courts have found the Act constitutional. Defendants cite no
case in which a court finding a federal statute unconstitutional on its face has limited
its ruling to a particular judicial district. Defendants instead cite four circuit cases
holding the Don't Ask, Don't Tell Act constitutional: Cook v. Gates, 528 F.3d 42 (1st
Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry,
97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)
(en banc). The fact that courts in other circuits have not invalidated the Don't Ask,
Don't Tell Act does not prevent this Court from doing so. Able, Richenberg, and
Thomasson all predate the Supreme Court's decision in Lawrence v. Texas, 539
U.S. 558 (2003), which recognized a fundamental right to "an autonomy of self that
includes freedom of thought, belief, expression, and certain intimate conduct." 539
U.S. at 562. Cases that predate Lawrence are not relevant to this inquiry because
the Court's decision here relied upon the Ninth Circuit's holding in Witt, which
adopted the heightened level of scrutiny announced in Lawrence. See Witt, 527
F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an intrusion "upon the
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
personal and private lives of homosexuals, in a manner that implicates the rights
identified in Lawrence," and is subject to heightened scrutiny). Defendants chose not
to appeal Witt and accordingly are bound by it.
As for Cook, its disposition is distinguishable from this case because Cook
arose after the district court granted a motion to dismiss, not on the merits after a
trial, as here. Furthermore, as discussed more fully in its Memorandum Opinion, the
Court finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a
facial due process challenge to the Don't Ask, Don't Tell Act, the Cook court
presented two "circumstances under which the Act would be valid." See Cook, 528
F.3d at 56 (holding the Act is constitutional on its face because it provides for
separation of a servicemember "who engages in a public homosexual act or who
coerces another person to engage in a homosexual act." (citing United States v.
Salerno, 481 U.S. 739, 745 (1987))). Those examples are bases for discharge of
any servicemember, whether the conduct in question is homosexual or heterosexual.
(See Mem. Op. at 15-16 (noting that "the Cook decision provide[d] no citation to any
provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as
grounds for discharge under that legislation.").)
d. Comity
The Court next turns to Defendants' argument that comity prevents the Court
from issuing a nationwide injunction. As noted above, of the four circuit cases
holding the Don't Ask, Don't Tell Act constitutional, Cook is the only case decided
after Lawrence and accordingly the only one relevant here. The doctrine of comity is
a "prudential consideration" that arises when there is a tension between courts
having concurrent jurisdiction over the same matter. See Pennsylvania v. Union Gas
Co., 491 U.S. 1, 23-29 (1989) (Stevens, J., concurring), rev'd on other grounds,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Erwin Chemerinsky, Federal
Jurisdiction 39-40, n.28 (5th Ed. 2007) (citing Paul Finkelman, An Imperfect Union:
Slavery, Federalism and Comity 4 (1981) (defining comity as "the courtesy or
consideration that one jurisdiction gives by enforcing the laws of another, granted out
of respect and deference rather than obligation.")). The doctrine of comity is not a
rule of law, but rather is grounded in equitable considerations of respect, goodwill,
cooperation, and harmony among courts. See Danforth v. Minnesota, 552 U.S. 264,
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
278-280, n.15 (2008) (discussing comity in the context of habeas corpus); Younger
v. Harris, 401 U.S. 37 (1971) (holding that comity prevents federal courts from
enjoining pending state court proceedings); Cornfeld v. Investors Overseas Servs.,
Ltd., 471 F. Supp. 1255, 1258-62 (D.C.N.Y. 1979) (international comity);
Chemerinsky, Federal Jurisdiction, supra, at 39-40, n.28. Though comity often
arises in the context of federalism and the attendant deference federal courts owe
state courts, the Ninth Circuit also has invoked the doctrine to encourage deference
among federal courts. See generally AMC Entm't (9th Cir.), 549 F.3d at 760.
In AMC Entertainment, the United States brought suit against a national movie
theater owner alleging that some of its theaters violated Americans with Disabilities
Act ("ADA") regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter "AMC
Entm't (C.D. Cal.)"). The district court granted the government's motion for summary
judgment and issued a nationwide injunction requiring the defendants to comply with
the ADA regulations, and the defendants appealed. Id.
The Ninth Circuit began its analysis by recognizing that district courts have the
power to issue nationwide injunctions. AMC Entm't (9th Cir.), 549 F.3d at 770-71
("Once a court has obtained personal jurisdiction over a defendant, the court has the
power to enforce the terms of the injunction outside the territorial jurisdiction of the
court, including issuing a nationwide injunction." (citing Steele v. Bulova Watch Co.,
344 U.S. 280, 289 (1952) ("the District Court in exercising its equity powers may
command persons properly before it to cease or perform acts outside its territorial
jurisdiction"); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981)
("When a district court has jurisdiction over all parties involved, it may enjoin the
commission of acts outside of its district."))).
Nevertheless, the divided Ninth Circuit panel went on to hold that the district
court abused its discretion by issuing a nationwide injunction because "the principles
of comity" should have constrained the court from enjoining defendants' theaters in
the Fifth Circuit, which previously had held defendants' theaters did not violate the
ADA. AMC Entm't (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit
"judicially repudiated" the reasoning adopted by the district court "when considering
the same arguments" enforced in the district court's injunction). The panel held:
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
Principles of comity require that, once a sister circuit has spoken to an issue,
that pronouncement is the law of that geographical area. Courts in the Ninth
Circuit should not grant relief that would cause substantial interference with
the established judicial pronouncements of such sister circuits. To hold
otherwise would create tension between circuits and would encourage forum
shopping.
Id. at 773.
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
In its Response and Amended Request for Injunction, Plaintiff clarifies that its
injunction was not intended to extend beyond the Don't Ask, Don't Tell Act to enjoin
extraneous conduct such as sexual harassment or sexual misconduct that are
already covered under other provisions of military law and regulations. (Resp. at 9.)
To address Defendants' concern, Plaintiff suggests adding the phrase "under the
color of law or military regulation." (Id.)
The Court finds this modification does not sufficiently constrain the language of
the injunction to the confines of the Act and accordingly sustains Defendants'
objection.
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
for Stay) at 5.) The Court has provided Defendants sufficient opportunity to consider
the terms of Plaintiff's proposed injunction and request a stay. They have failed to do
so. For these reasons and those set forth in the Court's previous rulings on the
issuance of a stay, the Court declines to delay entry of the injunction.
III. CONCLUSION
For the forgoing reasons, the Court:
(1) DECLARES that the act known as "Don't Ask, Don't Tell"2 infringes the
fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights guaranteed
under the Fifth Amendment to the United States Constitution, and (b) the rights to
freedom of speech and to petition the Government for redress of grievances
guaranteed by the First Amendment to the United States Constitution;
2
Codified in statute at 10 U.S.C. § 654 and implemented by regulations
comprising Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and
1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008)
(incorporating March 29, 2010, changes) and 1332.30 (2008) (incorporating March
29, 2010, changes).
CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010
command, from enforcing or applying the "Don't Ask, Don't Tell" Act and
implementing regulations, against any person under their jurisdiction or command;
(4) GRANTS Plaintiff Log Cabin Republicans' request to apply for attorneys'
fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and
(5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion for costs
of suit, to the extent allowed by law.
IT IS SO ORDERED.