ByWASHINGTON — A federal circuit court announced Monday it will hold oral arguments in May to determine whether a lower court erred when it blocked the Pentagon from downgrading Arizona Democratic Sen. Mark Kelly’s retirement rank and pay for appearing in the “Don’t Give Up The Ship” video.
The U.S. Court of Appeals for the District of Columbia Circuit’s new schedule came just days after the Trump administration requested an expedited timeline.
“In light of the public’s unusual interest in prompt disposition of this appeal, the government respectfully requests that this Court set an expedited briefing schedule that will allow the Court to hear oral argument this Term, before the Court’s summer recess,” Assistant Attorney General Brett A. Shumate wrote in a filing submitted Friday.
The circuit court now expects the Trump administration to file a brief by March 20 explaining why it appealed the district court’s ruling and for Kelly’s legal team to file its reply brief by April 27. Attorneys for both sides would then present their oral arguments May 7.
Karen LeCraft Henderson, nominated by President George H.W. Bush in 1990; Cornelia T.L. Pillard, nominated by President Barack Obama in 2013; and Florence Y. Pan, nominated by President Joe Biden in 2022, make up the three-judge panel that will rule on the appeal.
90-second video
The Defense Department’s attempt to punish Kelly stems from when he and five other Democratic lawmakers posted a 90-second video last year, telling members of the military and those in the nation’s intelligence communities that they can and must refuse illegal orders.
Kelly, a former Navy captain, was the only member of the group still subject to the military’s judicial system, leading Defense Secretary Pete Hegseth to issue a letter of censure and initiate proceedings to downgrade the senator’s retirement rank and pay.
Kelly filed a lawsuit in January, seeking to block those efforts on several fronts, including that it violated his constitutional rights.
“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” Kelly’s lawsuit stated. “That prohibition applies with particular force to legislators speaking on matters of public policy. As the Supreme Court held 60 years ago, the Constitution ‘requires that legislators be given the widest latitude to express their views on issues of policy,’ and the government may not recharacterize protected speech as supposed incitement in order to punish it.”
Judge rules for Kelly
Senior Judge Richard J. Leon of the District of Columbia District Court wrote in his 29-page ruling granting Kelly a preliminary injunction that “it is a particularly valuable asset for our country to have retired veterans contributing to public discussion on military matters and policy.
“Given their ‘distinct perspective and specialized expertise,’ it is essential for retired veterans to contribute to our ‘public discourse’ on issues of military policy. Allowing Defendants’ actions against Senator Kelly to stand would further chill the speech of these retired servicemembers and thereby ‘impoverish public debate on critical issues relating to our military and its role in domestic and foreign affairs.’”
The Department of Justice had sought a grand jury indictment against Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander for their participation in the video. But it was unsuccessful.
