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NO. 10-56634

UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

LOG CABIN REPUBLICANS,

Plaintiff-Appellees,

v.

UNITED STATES OF AMERICA; and ROBERT M. GATES, Secretary of


Defense,

Defendant-Appellants.

Brief of Amicus Curiae Servicemembers United


In Support of Appellees’ Opposition to a Stay Pending Appeal

On Appeal from The United States District Court


for The Central District of California
No. 05-08425, Honorable Virginia A. Phillips

Raven W. Sarnoff (State Bar No. 240133)


David J. Sarnoff (State Bar No. 239363)
SARNOFF + SARNOFF, APLC
707 Wilshire Boulevard, Suite 4750
Los Angeles, CA 90017
Telephone: (213) 536-4236
Facsimile: (213) 536-4246
E-Mail: rsarnoff@sarnofflaw.com
dsarnoff@sarnofflaw.com

Attorneys for Amicus Curiae


Servicemembers United
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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for Amicus

Curiae Servicemembers United, certifies that:

1. Servicemembers United is a not-for-profit corporation organized

under the District of Columbia Nonprofit Corporation Act and section

501(c)(4) of the Internal Revenue Code.

2. Servicemembers United has no parent corporation and no

publicly-held corporation owns ten percent or more of

Servicemembers United.

3.

DATED: October 25, 2010 SARNOFF + SARNOFF, APLC

By: s/ Raven W. Sarnoff


Raven W. Sarnoff
David J. Sarnoff

Attorneys for Amicus Curiae


Servicemembers United

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TABLE OF CONTENTS

Page

Table of Contents ................................................................................................ ii

Table of Authorities ............................................................................................ iv

Interest of Amicus Curiae .................................................................................... 1

Argument.....................................................................................................................2

A. The Requested Stay Will Substantially and Irreparably Harm Other


Interested Parties and the Public ................................................................2

1. A Lengthy Stay Would Permanently Preclude Countless Gay


and Lesbian Citizens and Veterans From Enlisting and
Re-enlisting in the Military..................................................................3

a. Sergeant Kevin Forte .......................................................................5

b. Sergeant Brian Fricke ......................................................................6

c. Specialist Jarrod Chlapowski .........................................................6

d. Brad Beckett.....................................................................................7

e. Chris Robinson.................................................................................7

2. The Stay Will Substantially and Irreparably Harm SU and its


Members’ Free Speech Rights ............................................................8

3. The Stay Will Substantially and Irreparably Harm SU’s Right of


Association ............................................................................................9

4. The Stay Will Substantially and Irreparably Harm SU’s Right to


Petition the Government for Redress of Grievances .........................10

5. The Stay Will Substantially and Irreparably Harm the Public..........11

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B. The Harm to Interested Parties and the Public if this Court


Grants the Stay Sharply Outweighs that Claimed by the
Government if it is Denied .....................................................................11

1. The Military’s Significant Increase of the Authority Required


to Discharge under DADT Demonstrates its Ability to Comply
with the Injunction Without Sustaining Substantial or Irreparable
Harm ....................................................................................................12

2. The Military Suffered No Irreparable Harm During Enforcement


of DADT’s Injunction Earlier this Month........................................13

3. The Military Suffered No Irreparable Harm During Voluntary


Suspensions of DADT During Periods of Heightened Conflict ... 14

Conclusion ......................................................................................................... 16

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TABLE OF AUTHORITIES

CASES Page

Golden Gate Rest. Ass’n v. City and County of San Francisco


512 F.3d 1112 (9th Cir. 2008) ................................................................... 2

Hilton v. Braunskill
481 U.S. 770 (1987)................................................................................... 2

NAACP v. Alabama, ex rel. Patterson


357 U.S. 449 (1958)................................................................................... 9

STATUTES

10 U.S.C. § 654.................................................................................................... 1

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Amicus curiae, Servicemembers United, submits this brief in support of the

Log Cabin Republican’s (Plaintiff-Appellees) position in opposition to the United

States of America and Robert M. Gates, Secretary of Defense’s (Defendant-

Appellants) (“the Government”) Emergency Motion for Stay Pending Appeal Under

Circuit Rule 27-3 and for Temporary Administrative Stay pending appeal of the

District Court’s October 12, 2010 injunction of the “Don’t Ask, Don’t Tell” Act, 10

U.S.C. § 654, (“DADT”), in the case of Log Cabin Republicans v. United States of

America and Gates, Case No. CV 04-08425-VAP, United States District Court for

the Central District of California. This brief is filed pursuant to the consent of all

parties.

INTEREST OF AMICUS CURIAE

Servicemembers United (“SU”), a non-profit and non-partisan organization,

is the nation's largest organization of gay and lesbian troops and veterans and their

supporters. SU engages in organizing, education, and advocacy on the issues that

impact the gay military, veteran, and defense community. SU was founded by gay

and lesbian troops and veterans in order to provide a way for those actually

affected by DADT to join the movement for its repeal. SU’s membership consists

of active duty gay and lesbian servicememmbers, veterans, and other individuals

who recognize that discrimination is not an American value. Based on its extensive

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work in support of gay and lesbian troops and veterans, including its efforts to

repeal DADT, SU is uniquely qualified to assist the Court in the instant case.

ARGUMENT

A continued stay of the District Court’s judgment enjoining enforcement of

DADT will cause substantial and irreparable harm to SU’s individual members, the

organization itself, and the public, which sharply outweighs the harm claimed by

the Government if DADT is enjoined.

A. The Requested Stay Will Substantially and Irreparably Harm Other


Interested Parties and the Public

The factors this Court must consider in deciding whether to issue the stay

sought by the Government are: “(1) whether the stay applicant has made a strong

showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially

injure the other parties interested in the proceeding; and (4) where the public

interest lies.” Golden Gate Rest. Ass’n v. City and County of San Francisco, 512

F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776

(1987)). As advocates and educators on issues affecting the gay military, veteran,

and defense community, SU addresses in this amicus brief how SU’s members, the

association itself, and the public, will be substantially and irreparably harmed if

this Court grants the instant stay.

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1. A Lengthy Stay Would Permanently Preclude Countless Gay and


Lesbian Citizens and Veterans From Enlisting and Re-enlisting in
the Military

A continued stay of the injunction against DADT will cause substantial and

irreparable injury to the many gays and lesbians who seek to enlist or re-enlist in

the military if enforcement of DADT is enjoined. Tens of thousands of brave and

patriotic servicemembers have either been discharged or have left the military due

to the emotional and physical burdens placed on them by this unconstitutional

policy. Many of these individuals as well as civilians who never enlisted due to

DADT, will seek to re-enlist or enlist for the first time if DADT remains enjoined.

However, because the military branches have strict age limitations for enlistment

and re-enlistment, 1 if the stay is granted, a significant number of these courageous

individuals will “age-out” during the stay and lose the opportunity to serve their

country. The military has similar age limits for becoming a commissioned officer,

which will cause numerous gays and lesbians seeking enlistment or re-enlistment

to “age-out” of the opportunity to become commissioned officers if the stay is

1
For example, in order to enlist in the Air Force for active duty without prior
service, an individual must be 27 years of age or less. Likewise, 28 years old is the
limit for the Marines, 34 for the Navy, and 42 for the Army. Servicemembers who
wish to re-enlist may have their prior service considered and may have the age
limit waived. However, there is no guarantee of receiving an age waiver, and this
decision is left to the discretion of the person handling the enlistment application.
Each branch of the military treats those with prior service differently, regardless of
whether they are enlisting for active duty or seeking commissions.

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granted. These honorable individuals will certainly suffer substantial and

irreparable harm if the stay is continued.

Moreover, the potential harm of a continued stay is even greater for enlistees

and commissioned officers already discharged under DADT or who may be

discharged under DADT during the requested stay. Once servicemembers leave

the military, it becomes harder every day to return, especially for commissioned

officers. After a certain period of time, some branches will not restore

servicemembers to the position they left. Returning servicemembers may also be

demoted in rank, thereby losing status, pay, and benefits, and may be required to

repeat basic training. Therefore, each day the stay remains in effect, it becomes

more difficult for servicemembers affected by DADT to return to active duty.

The substantial and irreparable harm these admirable gay and lesbian

civilians and discharged servicemembers will suffer is not merely speculative.

Granting the stay will foreclose the opportunity for many of them to join the

military, join the service branch of their choice, become commissioned officers, or

restore military careers destroyed by DADT.

When DADT is ultimately affirmed on appeal, the military will also have

lost the service of countless highly skilled individuals who would have otherwise

served their country during the stay. Many of the servicemembers ousted from

their military careers by DADT were highly trained soldiers, officers, and

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specialists whose skills the military certainly needs. Their talents, and the effort

put forth by the military to train them, will be for naught if the injunction is

stayed.

If appeal of this case takes the typical year or more for completion,

numerous individuals hoping to serve their country will “age-out” during the stay.

The following examples of SU members who want to enlist or re-enlist in the

military but will likely “age-out” during the next year or more represent the real

and imminent harm that countless individuals will suffer if the stay is granted.

a. Sergeant Kevin Forte

Sergeant Kevin Forte, a current SU member, is a decorated veteran who left

the Marines due to the enormous toll exacted upon him by serving in the military

under DADT. During his service, he received the Navy and Marine Corps

Achievement Medal, Marine Corps Good Conduct Medal, Combat Action Ribbon

for his service in Iraq, Marine Corps Overseas Ribbon, Marine Security Guard

Ribbon, Global War On Terrorism Service Medal, Global War on Terrorism

Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Ribbon,

Navy Meritorious Unit Commendation Medal, Presidential Unit Citation – Navy,

Meritorious Mast, and Certificate of Appreciation. Sergeant Forte would

undoubtedly still be a Marine but for the distress he suffered from being forced to

hide his sexual identity to avoid discharge under DADT. If this Court grants the

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stay, Sergeant Forte will likely never have the opportunity to rejoin his ranks, as he

is currently 27 years old and may soon become ineligible to re-enlist or be

commissioned in either the Marines or the Air Force.

b. Sergeant Brian Fricke

Sergeant Brian Fricke, a member of SU, served in the Marines for five years,

before leaving the service because of DADT. As a Marine, Sergeant Fricke

received the Meritorious Mast, Letter of Achievement, two Navy Marine Corps

Achievement Medals, Good Conduct Medal, Global War on Terror Service Medal,

Global War on Terror Expeditionary Medal, National Defense Medal, and the Iraq

Campaign Medal. Sergeant Fricke wants to return to the service if DADT is

enjoined, but because he turns 28 years old next month, he may be forever barred

from becoming a commissioned Marine officer, resulting in a waste of both his

ambition and the Marines’ time and expense training Sergeant Fricke.

c. Specialist Jarrod Chlapowski

Similarly, SU member Specialist Jarrod Chlapowski, age 28, served in the

Army for five years before leaving because of DADT. Like Sergeant Forte,

Specialist Chlapowski received numerous awards, medals, and commendations for

his service including the Army Commendation Medal, Army Achievement Medal,

Army Good Conduct Medal, National Defense Service Medal, Korea Defense

Service Medal, Non Commissioned Officer Professional Development Ribbon,

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Army Service Ribbon, and Global War on Terrorism Service Medal. Specialist

Chlapowski wants to return to the service in the Marines, yet, because of his age,

he will soon be beyond the age limitation to be commissioned as a Marine officer.

d. Brad Beckett

Brad Beckett, a 26 year-old gay civilian and member of SU, wants to join

the Air Force, but currently cannot because of DADT. Beckett will lose the

opportunity to ever join the Air Force if this Court stays the injunction of DADT

beyond the next 13 months, since the Air Force requires enlistees to be no older

than 27 years old. Thus, a lengthy stay would effectively preclude Beckett from

ever serving in the Air Force.

e. Chris Robinson

Chris Robinson, a 33 year-old gay civilian and SU member, also wants to

join the military, but is barred from doing so by DADT. Robinson, who will be 34

years old in November 2010, will very likely be prohibited from enlisting in the

Navy, and will be illegible to become a commissioned officer in the Army, Navy,

or Air Force if the stay continues.

As demonstrated by these examples of SU members, granting the stay will

cause substantial and irreparable harm to the many gay and lesbian individuals

who want to serve their country and defend it from the many challenges it will

face, but will likely “age-out” during the stay.

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2. The Stay Will Substantially and Irreparably Harm SU and its


Members’ Free Speech Rights

If this Court grants the requested stay, DADT will continue to infringe upon

SU and its members’ First Amendment free speech rights every day that it remains

in effect. Approximately one-third of SU’s members are active duty gay and

lesbian servicemembers forced by DADT to conceal their sexual orientation. Not

only does DADT silence these servicemembers’ daily speech regarding their

personal lives, identity, and feelings, it also prevents the very people affected by

DADT from speaking out against the policy. Every day that DADT remains in

effect, is another day that the voices of the very people injured by the policy

remain silenced and unable to advocate on their own behalf. Not only does this

diminish SU’s effectiveness, it also squelches public discourse by active duty gay

and lesbian servicemembers regarding all aspects of gay rights (gay marriage,

adoption, etc.) for fear of discharge under DADT.

SU was founded to give a voice to gay and lesbian servicemembers affected

by DADT and provide a way for them to join the movement for DADT’s repeal.

However, it is not a perfect solution. SU’s very existence is only necessary

because DADT prevents self-advocacy by the individuals actually affected by the

policy. If the stay is granted, these servicemembers’ will suffer substantial and

irreparable harm as a result of being excluded from the public discourse regarding

DADT’s constitutionally while this very issue is on appeal.

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3. The Stay Will Substantially and Irreparably Harm SU’s Right of


Association

If the injunction is further stayed, DADT will also continue to infringe upon

SU and its members’ constitutional right of association. The freedom of

association is an essential part of the freedom of speech because, as noted by the

United State Supreme Court in NAACP v. Alabama, ex rel. Patterson, 357 U.S.

449, 460 (1958), in many cases, effective speech can only happen when people

join together. In Patterson, the Supreme Court overturned a state law compelling

disclosure of the NAACP’s membership because it found it to be an

unconstitutional restraint on association that “may induce members to withdraw

from the Association and dissuade others from joining it because of fear of

exposure of their beliefs shown through their associations and of the consequences

of this exposure.” Id. at 463.

DADT similarly restrains SU’s right of association by dissuading active duty

gay and lesbian servicemembers from joining and publicly participating in SU for

fear that doing so will arouse suspicion about their sexual orientation. The

deleterious effect DADT has on SU’s membership substantially and irreparably

harms both the gay and lesbian servicemembers who choose not to join or actively

participate in SU, as well as the organization itself. Many servicemembers choose

not to join or actively participate in SU because of the risk doing so could pose to

their military careers. By dissuading servicemembers from joining or publically

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participating in SU, DADT’s continued enforcement compromises SU’s mission to

educate and advocate on behalf of gay and lesbian servicemembers. For every

servicemember who chooses not to join or actively participate in SU for fear of

reprisal under DADT, not only is the size and efficacy of SU’s membership

diminished, so too is the diversity of ideas and perspectives that might otherwise

flourish.

4. The Stay Will Substantially and Irreparably Harm SU’s Right to


Petition the Government for Redress of Grievances

Every day that DADT is not enjoined, active duty gay and lesbian

servicemembers will suffer substantial and irreparable harm because they are

precluded from exercising their First Amendment right to Petition the Government

for redress of grievances. One-third of SU’s membership, the gay and lesbian

troops actively serving in the military, is precluded from petitioning the

government to seek changes regarding its policies toward gays and lesbians,

including DADT. Moreover, countless gay and lesbian servicemembers never join

organizations such as SU that promote gay rights in fear of career ending dismissal

under DADT. Thus, the voices of those oppressed by DADT are silenced from

petitioning our government for redress of their grievances regarding the very

policy that silences them. Additionally, active duty gay and lesbian

servicemembers are prohibited from advocating regarding any aspect of gay rights

for fear of discharge under DADT.

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5. The Stay Will Substantially and Irreparably Harm the Public

Granting the requested stay will also inflict substantial and irreparable harm

on the public. DADT infringes upon the First Amendment rights of speech and

association of every person who is a family member, friend, spouse or, partner of a

gay or lesbian servicemember. Every person close to a gay or lesbian

servicemember is involuntarily enlisted in hiding the truth about the

servicemember’s sexual orientation. They must censor their written and public

communications, avoid associating with certain people or in certain places, and

repress behavior that may arouse suspicion about the servicemember’s sexual

orientation. As recognized by SU’s civilian and/or heterosexual membership,

DADT substantially and irreparably harms the public every day that it remains in

effect by enforcing and condoning unconstitutional discrimination that is wholly

inconsistent both with the military’s mission to safeguard and advance freedom, as

well as the American public’s interest in freedom and equality under the law.

B. The Harm to Interested Parties and the Public if this Court Grants
the Stay Sharply Outweighs that Claimed by the Government if it is
Denied

The Government claims that the military will sustain irreparable harm absent

a continued stay of DADT’s injunction because it will interfere with the military’s

efforts to devise an orderly end to DADT. However, the military’s own voluntary

response to DADT’s injunction, as well its historical willingness to suspend DADT

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during periods of heightened conflict, belies the Government’s argument.

Moreover, any negligible harm the military may sustain from DADT’s immediate

injunction is clearly outweighed by the continued deprivation of constitutional

rights interested parties such as SU, its membership, and the public will suffer if

the stay is granted.

1. The Military’s Significant Increase of the Authority Required to


Discharge under DADT Demonstrates its Ability to Comply with
the Injunction Without Sustaining Substantial or Irreparable
Harm

Rather than falling into the administrative disarray the Government claims it

will if the Court denies the stay, the military has responded to DADT’s inevitable

repeal efficiently and cooperatively. As early as March 25, 2010, the military

raised the authority to initiate investigations and approve discharges under DADT

to the one-star general level. 2 On October 21, 2010, Defense Secretary Robert

Gates raised the level of authority required to approve DADT discharges to the

armed services secretaries under consultation with the Under Secretary of Defense

for Personnel and Readiness and the General Counsel of the Department of

Defense. By raising this authority to such a high level, Gates’ directive effectively

requires the military to comply with the injunction’s order to suspend discharges

2
Before March 25, 2010, the authority to initiate an investigation under DADT
was usually vested in a company commander, and the authority to sign-off on a
DADT discharge generally rested with a brigade commander.

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under DADT. The higher in the chain of command approval of discharges lies, the

fewer discharges will be referred up the chain and the longer the discharge process

will be. 3 The military’s voluntary compliance with at least half of the District

Court’s injunction makes it clear that a stay is not necessary to effectuate an

orderly end of DADT.

2. The Military Suffered No Irreparable Harm During Enforcement


of DADT’s Injunction Earlier this Month

The Government has further failed to meet its burden to prove the

irreparable harm necessary to justify a stay by failing to identify any harm to the

military during the approximately one-week period DADT was enjoined. During

that time, not only did the military not sustain irreparable harm, it demonstrated

ability to comply with the injunction. On October 12, 2010, all services branches

ordered immediate cessation of all discharges and investigations under DADT in

compliance with the District Court’s injunction. The Government has submitted

no evidence that the military suffered any harm, let alone irreparable harm, during

the injunction. Similarly, a Pentagon spokesman admitted six days after issuance

of the injunction that “no disciplinary problems or mass-resignations,” two

consequences of halting gay discharges consistently predicted by DADT’s

3
Prior to Gates’ October 12, 2010 memorandum, discharging an officer, which
required approval at the service secretary level typically took 12-16 months.
Discharging an enlistee, which did not require service secretary approval prior to
the memorandum, typically took one week to two months.

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defenders, were reported following issuance of the injunction. 4 The fact that the

military immediately complied with the injunction without suffering any harm, let

alone irreparable harm, warrants denial of the stay.

3. The Military Suffered No Irreparable Harm During Voluntary


Suspensions of DADT During Periods of Heightened Conflict

Although the military has maintained an official policy of excluding gays

and lesbians since World War II, enforcement has fluctuated relative to the

personnel needs of the military. 5 The military relaxes restrictions on gays serving

in the military during periods of heightened conflict pursuant to “stop-loss” orders

issued by the president. 6 During the first Gulf War, President Bush invoked a

4
Michael Bowman, Judicial Battle Continues Over Repeal of Openly-Gay
Military Service Ban, Voice of America,
http://www.voanews.com/english/news/usa/Judicial-Battle-Continues-Over-
Repeal-of-Openly-Gay-Military-Service-Ban-105281723.html.
5
Rhonda Evans, Center for the Study of Sexual Minorities in the Military, Institute
for Social, Behavioral, and Economic Research, UC Santa Barbara, U.S Military
Policies Concerning Homosexuals: Development, Implementation and Outcomes
15-16, 22 (2001).
6
Id. Discharge statistics corroborate a pattern of rising expulsions during
peacetime and plummeting rates during military conflicts, and Pentagon statistics
confirm that, as has been the case in every war since World War II, gay discharges
have declined during the current conflict in the Middle East. Press Release,
Geoffrey Bateman, Center for the Study of Sexual Minorities in the Military,
University of California, Santa Barbara, Researchers Locate Army Document
Ordering Commanders Not to Fire Gays (September 13, 2005),
http://www.palmcenter.org/press/dadt/releases/researchers_locate_army_document
_ordering_commanders_not_to_fire_gays; DADT Discharges by Fiscal Year

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“stop-loss” order allowing the suspension of discharge proceedings, which was

applicable to those facing separation for homosexuality.7 Three days after the

terrorist attacks of 9/11, President Bush signed an executive order that authorized

the individual service branches to initiate a “stop-loss,” allowing (but not ordering)

the military to suspend laws relating to separation of military personnel. 8

Not surprisingly, given that DADT requires gays and lesbians to be

discharged whether or not the country is at war, the military has consistently

denied that it suspends DADT during heightened conflict. However, in 2005,

researchers discovered a regulation in the "Reserve Component Unit Commander's

Handbook" which stated that if a discharge for homosexual conduct is requested

"prior to the unit's receipt of alert notification, discharge isn't authorized. Member

will enter AD [active duty] with the unit." 9 Clearly, the military voluntarily

1994-2009 from Servicemembers United (based on data from the Office of the
Secretary of Defense, the Department of Homeland Security, and the Army
National Guard Bureau), http://dadtarchive.org/ (2010) (charting the decline in
discharges of gay and lesbian troops by approximately one-third after 9/11, and the
same after the U.S. invasion of Iraq).
7
Nathaniel Frank, Ph.D., Palm Center, Research Note on Pentagon Practice of
Sending Known Gays to War 2 (July 1, 2007).
8
Id. at 2.
9
Press Release, Geoffrey Bateman, Center for the Study of Sexual Minorities in
the Military, University of California, Santa Barbara, Researchers Locate Army
Document Ordering Commanders Not to Fire Gays (September 13, 2005),
www.palmcenter.org/press/press-releases; FORSCOM Regulation 500-3-3

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suspends DADT’s enforcement where there is a practical need for increased

manpower. In light of this policy, the Government can hardly demonstrate that

enjoining DADT pending appeal will cause the military irreparable harm, since the

military itself voluntarily suspends DADT without any deleterious effects.

CONCLUSION

For all the reasons stated above, Servicemembers United respectfully

requests that the Court deny a stay pending appeal.

DATED: October 25, 2010 Respectfully submitted,


SARNOFF + SARNOFF, APLC

By: s/ Raven W. Sarnoff


Raven W. Sarnoff
David J. Sarnoff

Attorneys for Amicus Curiae


Servicemembers United

Volume III, Reserve Component Unit Commanders Handbook, 15 July 1999,


available at http://www.palmcenter.org/files/active/0/2005-09_forscomReport.pdf.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because it contains 3,622 words, excluding the

parts of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because it has been prepared in a proportionally

spaced typeface using Microsoft Word 2003 in size 14 Time News Roman font.

DATED: October 25, 2010 SARNOFF + SARNOFF, APLC

By: s/ Raven W. Sarnoff


Raven W. Sarnoff
David J. Sarnoff

Attorneys for Amicus Curiae


Servicemembers United

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CERTIFICATE OF SERVICE

I am employed in the County of Los Angeles, State of California. I am

over the age of 18 and not a party to the within action. My business address is

707 Wilshire Blvd., Ste. 4750, Los Angeles, CA 90017.

I herby certify that on October 25, 2010, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF will be served by the

appellate CM/ECF system.

I further certify that some of the participants in the case are not registered

CM/ECF users. I have mailed the foregoing document by First-Class Mail,

postage prepaid, or have dispatched it to a third party commercial carrier for

delivery within 3 calendar days, to the following non-CM/ECF participants:

Executed on October 25, 2010, at Los Angeles, California.

I declare that I am employed in the office of a member of the bar of this

Court at whose direction the service was made.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

/s/ David J. Sarnoff


David J. Sarnoff