658 F.3d 1162 (9th Cir. 2011), 10-56634, Log Cabin Republicans v. United States

Docket Nº:10-56634, 10-56813.
Citation:658 F.3d 1162
Opinion Judge:PER CURIAM:
Party Name:LOG CABIN REPUBLICANS, a non-profit corporation, Plaintiff-Appellee, v. UNITED STATES of America; Leon Panetta, Secretary of Defense, in his official capacity, Defendants-Appellants. Log Cabin Republicans, a non-profit corporation, Plaintiff-Appellant, v. United States of America; Leon Panetta, Secretary of Defense, in his official capacity, Defend
Attorney:Henry C. Whitaker, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., argued the cause and filed the briefs for the defendants-appellants/defendants-appellees. With him on the briefs were Tony West, Assistant Attorney General, Andr
Judge Panel:Before: ARTHUR L. ALARC
Case Date:September 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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658 F.3d 1162 (9th Cir. 2011)

LOG CABIN REPUBLICANS, a non-profit corporation, Plaintiff-Appellee,

v.

UNITED STATES of America; Leon Panetta, Secretary of Defense, in his official capacity, Defendants-Appellants.

Log Cabin Republicans, a non-profit corporation, Plaintiff-Appellant,

v.

United States of America; Leon Panetta, Secretary of Defense, in his official capacity, Defendants-Appellees.

Nos. 10-56634, 10-56813.

United States Court of Appeals, Ninth Circuit.

September 29, 2011

Argued and Submitted Sept. 1, 2011.

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[Copyrighted Material Omitted]

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Henry C. Whitaker, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., argued the cause and filed the briefs for the defendants-appellants/defendants-appellees. With him on the briefs were Tony West, Assistant Attorney General, André Birotte Jr., United States Attorney, and Anthony J. Steinmeyer and August E. Flentje, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.

Dan Woods, White & Case LLP, Los Angeles, CA, argued the cause and filed a brief for the plaintiff-appellee/plaintiff-appellant. With him on the brief was Earle Miller, Aaron A. Kahn, and Devon A. Myers, White & Case LLP, Los Angeles, CA.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 2:04-cv-08425-VAP-E.

Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN, and BARRY G. SILVERMAN, Circuit Judges.

PER CURIAM Opinion; Concurrence by Judge O'SCANNLAIN.

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OPINION

PER CURIAM:

We are called upon to decide whether the congressionally enacted " Don't Ask, Don't Tell" policy respecting homosexual conduct in the military is unconstitutional on its face.

I

A

In 1993, Congress enacted the policy widely known as Don't Ask, Don't Tell. The policy generally required that a service member be separated from the military if he had engaged or attempted to engage in homosexual acts, stated that he is a homosexual, or married or attempted to marry a person of the same sex. 10 U.S.C. § 654(b) (repealed); see, e.g., Dep't of Def. Instructions 1332.14, 1332.30 (2008).

The nonprofit corporation Log Cabin Republicans brought this suit in 2004, challenging section 654 and its implementing regulations as facially unconstitutional under the due process clause of the Fifth Amendment, the right to equal protection guaranteed by that Amendment, and the First Amendment right to freedom of speech. Log Cabin sought a declaration that the policy is facially unconstitutional and an injunction barring the United States from applying the policy. The district court dismissed the equal protection claim under Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir.2008) (upholding section 654 against a facial equal protection challenge), but allowed the due process and First Amendment challenges to proceed to trial.

After a bench trial, in October 2010 the district court ruled that section 654 on its face violates due process and the First Amendment. The court permanently enjoined the United States from applying section 654 and its implementing regulations to anyone. The United States appealed; Log Cabin cross-appealed the dismissal of its equal protection claim.

B

While the appeal was pending, Congress enacted the Don't Ask, Don't Tell Repeal Act of 2010, Pub.L. No. 111-321, 124 Stat. 3515 (2010) (" Repeal Act" ). That statute provides that section 654 would be repealed 60 days after: (1) the Secretary of Defense received a report determining the impact of repealing section 654 and recommending any necessary changes to military policy, and (2) the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certified that they had considered the report's recommendations and were prepared to implement the repeal consistent with military readiness, military effectiveness, and unit cohesion. Repeal Act § 2(b). The Repeal Act left section 654 in effect until the prerequisites to repeal were satisfied and 60 days had then passed.

The report was issued November 30, 2010, and certification occurred July 21, 2011. Section 654 was thus repealed September 20, 2011.

II

A

Because section 654 has now been repealed, we must determine whether this case is moot. " [I]t is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment" is under review. Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). Article III of the United States Constitution " requires that there be a live case or controversy at the time that" a reviewing federal court decides the case. Id.

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Applying that limitation, the Supreme Court and our court have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language. In determining whether a case has become moot on appeal, the appellate court " review[s] the judgment below in light of the ... statute as it now stands, not as it ... did" before the district court. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (per curiam); see Burke, 479 U.S. at 363, 107 S.Ct. 734.

In Hall v. Beals, for example, the Supreme Court deemed moot a challenge to a six-month residency requirement imposed by Colorado for eligibility to vote in the 1968 presidential election. 396 U.S. at 46-48, 90 S.Ct. 200. After the district court rejected the challenge and the Supreme Court noted probable jurisdiction, the Colorado legislature reduced the residency requirement to two months, which the plaintiffs would have met at the time of the 1968 election. Id. at 47-48, 90 S.Ct. 200. The case was moot because, " under the statute as ... written" when the Supreme Court reviewed the district court's judgment, " the appellants could have voted in the 1968 presidential election." Id. at 48, 90 S.Ct. 200. Similarly, in United States Department of the Treasury v. Galioto, after the Supreme Court had noted probable jurisdiction to review a ruling that federal firearms legislation unconstitutionally singled out mental patients, the case became moot because Congress amended the statute to remove the challenged language. 477 U.S. 556, 559-60, 106 S.Ct. 2683, 91 L.Ed.2d 459 (1986). And in Burke v. Barnes, where several congressmen challenged the President's attempt to " pocket-veto" a bill, the Supreme Court deemed the case moot because the bill expired by its own terms before the Court could rule on the case. 479 U.S. at 363, 107 S.Ct. 734. As in cases dealing with repealed legislation, the Court " analyze[d] th[e] case as if [the plaintiffs] had originally sought to litigate the validity of a statute which by its terms had already expired." See id.

Following the Court's lead, we have routinely deemed cases moot where " a new law is enacted during the pendency of an appeal and resolves the parties' dispute." Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1181 (9th Cir.2006) (Qwest's challenge to ordinances rendered moot by amendment exempting Qwest from ordinances); see Chem. Producers & Distribs. Ass'n v. Helliker, 463 F.3d 871, 875-78 (9th Cir.2006) (case moot where amendment eliminated challenged part of pesticide registration law); Martinez v. Wilson, 32 F.3d 1415, 1419-20 (9th Cir.1994) (case moot where, after injunction was issued, statute was amended to eliminate challenged factors used by the State of California in distributing funds under the Older Americans Act). Under these precedents, when a statutory repeal or amendment gives a plaintiff " everything [it] hoped to achieve" by its lawsuit, the controversy is moot. Helliker, 463 F.3d at 876.

This suit became moot when the repeal of section 654 took effect on September 20. If Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654. The repeal, in short, gave Log Cabin " everything" its complaint " hoped to achieve." Helliker, 463 F.3d at 876. There is no longer " a present, live controversy of the kind that must exist" for us to reach the merits. Hall, 396 U.S. at 48, 90 S.Ct. 200.

B

Log Cabin concedes that " the injunctive relief awarded by the district court [has]

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become moot" due to the repeal, but contends that its quest for declaratory relief is live under either of two exceptions to mootness.

We are not persuaded. When a statutory repeal or amendment extinguishes a controversy, the case is moot. There is no exception for declaratory relief. See Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1514 (9th Cir.1994) (" Declaratory relief is unavailable where [a] claim is otherwise moot...." ); Pub. Utils. Comm'n of State of Cal. v. FERC, 100 F.3d 1451, 1459 (9th Cir.1996) (same).

In any event, no exception to mootness applies here. Log Cabin notes that generally " a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). But voluntary cessation is different from a statutory amendment or repeal. Repeal is " usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed." Helliker, 463 F.3d at 878. Cases rejecting mootness in such circumstances " are rare and typically involve situations where it is virtually certain that the...

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