As reported in MetroWeekly, the United States Circuit Court of Appeals for the Ninth Circuit has issued an order suggesting that the LCR v. US lawsuit be dismissed as moot because the goverment appears not to be defending the constitutionality of DADT.
This opens a whole can of worms. What happens to the case now?
The legal concept of "mootness" in this context refers to the idea that no ultimate decision on the issue can be rendered in the case because the issue has been effectively resolved by changes in circumstance.
An example is the case of a person who sued because he had been denied admission to law school based on discrimination. He was then been provisionally admitted during the pendancy of the case. Because the student was slated to graduate within a few months at the time the decision was rendered, and there was no action the law school could take to prevent that, the Court dismissed the case as "moot."
If the LCR v. US case is dismissed as moot, then there are important questions as to the remaining effect, if any, of the District Court ruling that DADT is unconstitutional. Would the District Court decision that DADT is unconstitutional, and its worldwide ban on discharges, remain in effect? Will the District Court decision and opinion retain a precedential effect, meaning that it is binding on federal District Courts in the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands? Could it be cited by courts outside of the Ninth Circuit as having a persuasive effect?
The Court also suggested that the Department of Justice could submit a report to Congress detailing a decision not to defend DADT, as it did in February regarding Section 3 of DOMA. If DOJ does that, then Speaker Boehner could have Congress hire a law firm and intervene to argue that DADT is constitutional. This could affect the question I discussed last week on the question of whether the U.S. Supreme Court would reinstate the stay on the District Court's decision.
That would be a kettle of fish!
The DOJ could, of course, try to argue that the case is not moot. But what exactly is "mootness," anyway?
Wikipedia provides this explanation of "mootness":
In the U.S. federal judicial system, a moot case must be dismissed, there being a constitutional limitation on the jurisdiction of the federal courts. The reason for this is that Article Three of the United States Constitution limits the jurisdiction of all federal courts to "cases and controversies". Thus, a civil action or appeal in which the court's decision will not affect the rights of the parties is ordinarily beyond the power of the court to decide, provided it does not fall within one of the recognized exceptions.
In other words, if every litigant in the case agrees that DADT is unconstitutional, and the government says that it will no longer enforce DADT, then, I suppose, the case is over. The lawsuit was initiated to prevent discharges, and no further discharges would then occur. Voila! LCR would effectively have won the case.
Check out this blog for a discussion of the effect of a dismissal for mootness on a lower court decision in a bankruptcy case. It's not simple.
And here's what Lambda Legal has to say about the effect, as posted on AmericaBlog.
But a smart lawyer knows not to rely on slippery unwritten assurances of an adversary that they won't do it again. I would want agreement on a written stipulation and settlement that they won't under any circumstances discharge a solider because of his or her sexual orientation. There may be ways in which regulations put in place under DADT could still be effective, and I'd want to make sure every one of those loopholes were closed. It would take an extensive review of the regulations, in my book.
Worse, this throws open the door to Boehner et al getting in on the fun and causing a ruckus in a case that seems to have been already clearly decided.
Perhaps DOJ should continue to defend DADT on a "technical" basis, at least to the extent that they are not ready to implement the District Court right this minute. Otherwise, we might have a circus on our hands.