An applicant for vacatur of a stay pending appeal granted by a court of appeals ordinarily must demonstrate, first, a reasonable probability that the case will eventually come before this Court for plenary consideration; second, a significant possibility that a majority of the Court eventually will agree with the District Court's decision; and, third, that the failure to vacate the stay probably will cause irreparable harm that outweighs the irreparable harm to the government from a vacatur of the stay.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. On Sunday, Gates called on the 112th Congress to repeal DADT [JURIST report]. In October, Gates issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Department of Defense officials. In September, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] a US Air Force officer to be reinstated after being previously discharged under DADT. Also in September, the US Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the US House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.