A sailor who lost his federal court bid to stay in the Navy despite admitted homosexual acts will remain on duty at least until next week, attorneys said Wednesday.
U.S. District Judge William Dwyer, who on March 17 reluctantly upheld the Navy’s recommended discharge of Machinist’s Mate 2nd Class Mark A. Philips, granted a defense request to allow Philips to remain in the service until Tuesday.
The defense motion argues that Philips will suffer irreparable harm if he is separated from the service while his case is being appealed to the 9th U.S. Circuit Court of Appeals in San Francisco.
“The net effect is that Petty Officer Philips will not be discharged this evening,” his attorney, Jett Whitmer, said of Dwyer’s decision.
Philips’ commanding officer had told him he would be discharged at 1 p.m. PST Wednesday, Whitmer said. Philips is stationed at the Navy’s Trident submarine base at Bangor, Wash.
The government is to file a response with Dwyer by Friday, said Justice Department attorney Mark Quinlavin from Washington, D.C.
Quinlaven declined comment on the motion or his planned response.
“Our papers are due on the 24th. … We can’t say in advance what our position will be,” he said.
Dwyer was asked to continue the injunction he imposed in December barring Philips’ discharge “to give us enough time to make the same request” to the 9th Circuit, Whitmer said.
The judge said he would rule by Tuesday, Whitmer said.
If Dwyer grants the motion, Philips’ attorneys would have five days to ask the 9th Circuit for the same consideration - that Philips be allowed to stay in the service until his appeal is resolved, Whitmer said. The appeal must be filed within 30 days of Dwyer’s ruling.
Whitmer said he expects the government to argue that a discharge would not cause Philips irreparable harm.
If Dwyer lifts the injunction next week and Philips is discharged, it would be difficult getting him reinstated to wait out his appeals, the attorney said.
“It’s much more difficult to convince the court there’s irreparable harm once the harm has been done,” Whitmer said.