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Karnoski v. Trump

United States Court of Appeals, Ninth Circuit

June 14, 2019

Ryan Karnoski; Cathrine Schmid, Staff Sergeant; D. L., FKA K. G., by his next friend and mother, Laura Garza; Human Rights Campaign Fund; Gender Justice League; Lindsey Muller, Chief Warrant Officer; Terece Lewis, Petty Officer First Class; Phillip Stephens, Petty Officer Second Class; Megan Winters, Petty Officer Second Class; Jane Doe; American Military Partner Association, Plaintiffs-Appellees,
v.
Donald J. Trump, in his official capacity as President of the United States; United States of America; Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense; United States Department of Defense, Defendants-Appellants. State of Washington, Attorney General's Office Civil Rights Unit, Intervenor-Plaintiff-Appellee, In re Donald J. Trump, in his official capacity as President of the United States; United States of America; Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense; United States Department of Defense; U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Secretary of Homeland Security, Donald J. Trump, in his official capacity as President of the United States; United States of America; Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense; United States Department of Defense; U.S. Department of Homeland Security; Kevin K. McAleenan, Acting Secretary of Homeland Security, Petitioners,
v.
United States District Court for the Western District of Washington, Seattle, Respondent, Ryan Karnoski; Cathrine Schmid; D.L.; Laura Garza; Human Rights Campaign; Gender Justice League; Lindsey Muller; Terece Lewis; Phillip Stephens; Megan Winters; Jane Doe; American Military Partner Association; State of Washington, Real Parties in Interest.

          Argued and Submitted October 10, 2018 Portland, Oregon

          Appeal from the United States District Court for the Western District of Washington D.C. Nos. 2:17-cv-01297-MJP, 2:17-cv-01297-MJP Marsha J. Pechman, District Judge, Presiding

         Petition for Writ of Mandamus

          Brinton Lucas (argued), Counsel to the Assistant Attorney General; Tara S. Morrissey and Marleigh D. Dover, Appellate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Stephen R. Patton (argued), Daniel Siegfried, Vanessa Barsanti, Scott Lerner, and James F. Hurst, Kirkland & Ellis LLP, Chicago, Illinois; Peter C. Renn, Lambda Legal Defense and Education Fund Inc., Los Angeles, California; Tara L. Borelli, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia; Kara Ingelhart and Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Sasha Buchert and Diana Flynn, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Carl Charles, Lambda Legal Defense and Education Fund Inc., New York, New York; Peter E. Perkowski, OutServe-SLDN Inc., Los Angeles, California; Jason B. Sykes and Derek A. Newman, Newman Du Wors LLP, Seattle, Washington; for Plaintiffs-Appellees.

          La Rond Baker (argued) and Colleen Melody, Assistant Attorneys General; Alan Copsey, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for Intervenor-Plaintiff-Appellee.

          Maura Healey, Attorney General; Sara A. Colb, Kimberly A. Parr, and Genevieve C. Nadeau, Assistant Attorneys General; Office of Attorney General, Boston, Massachusetts; Xavier Becerra, Attorney General of California, Sacramento, California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut; Matthew P. Denn, Attorney General of Delaware, Wilmington, Delaware; Karl A. Racine, Attorney General of the District of Columbia, Washington, D.C.; Russell A. Suzuki, Attorney General of Hawaii, Honolulu, Hawaii; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois; Tom Miller, Attorney General of Iowa, Des Moines, Iowa; Janet T. Mills, Attorney General of Maine, Augusta, Maine; Brian E. Frosh, Attorney General of Maryland; Baltimore, Maryland; Gurbir S. Grewal, Attorney General of New Jersey, Trenton, New Jersey; Hector Balderas, Attorney General of New Mexico, Santa Fe, New Mexico; Barbara D. Underwood, Attorney General of New York, New York, New York; Joshua H. Stein, Attorney General of North Carolina, Raleigh, North Carolina; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon; Josh Shapiro, Attorney General of Pennsylvania, Harrisburg, Pennsylvania; Peter F. Kilmartin, Attorney General of Rhode Island, Providence, Rhode Island; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia; Thomas J. Donovan, Jr., Attorney General of Vermont, Montpelier, Vermont, for Amici Curiae Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, and the District of Columbia.

          Douglas C. Dreier and Stuart F. Delery, Gibson Dunn & Crutcher LLP, Washington, D.C., for Amicus Curiae The Trevor Project.

          Sherrilyn A. Ifill, Director-Counsel, Janai S. Nelson, and Samuel Spital, NAACP Legal Defense & Educational Fund, Inc., New York, New York; Daniel S. Harawa, NAACP Legal Defense & Educational Fund Inc., Washington, D.C.; for Amicus Curiae NAACP Legal Defense & Educational Fund Inc.

          Devi M. Rao and Scott B. Wilkens, Jenner & Block LLP, Washington, D.C.; Benjamin J. Brysacz, Jenner & Block LLP, Los Angeles, California; for Amici Curiae American Medical Association, American College of Physicians, and Nine Other Health Care Organizations.

          William B. Stafford and Abha Khanna, Perkins Coie LLP, Seattle, Washington; Ashwin P. Phatak, David H. Gans, Brianne J. Gorod, and Elizabeth B. Wydra, Constitutional Accountability Center, Washington, D.C.; for Amicus Curiae Constitutional Accountability Center.

          Matthew S. Blumenthal and Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, Connecticut; Jake Ewart, Hillis Clark Martin & Peterson P.S., Seattle, Washington; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Retired Military Officers and Former National Security Officials.

          Suzanne B. Goldberg, Sexuality and Gender Law Clinic, Columbia Law School, New York, New York; William C. Miller, Robert C. K. Boyd, and Cynthia Cook Robertson, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C., for Amici Curiae The Service Women's Action Network, California Women Lawyers, Center for Reproductive Rights, Columbia Law School Sexuality and Gender Law Clinic, Connecticut Women's Education and Legal Fund, Equal Rights Advocates, Legal Voice, Michigan Association for Justice, National Women's Law Center, and the Women's Bar Association of the District of Columbia.

          John C. Quinn, Julie E. Fink, Roberta A. Kaplan, and Joshua Matz, Kaplan Hecker & Fink LLP, New York, New York, for Amici Curiae National Center for Transgender Equality, Southern Arizona Gender Alliance, The Trans Youth Equality Foundation, Transcend Legal, Transgender Allies Group, Transgender Legal Defense & Education Fund, and Transgender Resource Center of New Mexico.

          Susan Baker Manning, Morgan Lewis & Bockius LLP, Washington, D.C.; Corey Houmand, Morgan Lewis & Bockius LLP, Palo Alto, California; for Amici Curiae Vice Admiral Donald C. Arthur, USN (Ret.), former Surgeon General of the U.S. Navy; Major General Gale Pollock, USA (Ret.), former Acting Surgeon General of the U.S. Army, and Rear Admiral Alan M. Steinman, USPHS/USCG (Ret.), Former Director of Health and Safety of the U.S. Coast Guard.

          Mark R. Freeman (argued), Brad Hinshelwood, Tara S. Morrissey, Marleigh D. Dover, and Mark B. Stern, Appellate Staff; Brinton Lucas, Counsel to the Assistant Attorney General; Hashim M. Mooppan, Deputy Assistant Attorney General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Petitioners.

          Stephen R. Patton (argued), Daniel Siegfried, Vanessa Barsanti, Scott Lerner, Jordan M. Heinz, and James F. Hurst, Kirkland & Ellis LLP, Chicago, Illinois; Peter C. Renn, Lambda Legal Defense and Education Fund Inc., Los Angeles, California; Tara L. Borelli, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia; Sasha Buchert and Diana Flynn, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Kara Ingelhart and Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Paul D. Castillo, Lambda Legal Defense and Education Fund Inc., Dallas, Texas; Peter E. Perkowski, OutServe-SLDN Inc., Los Angeles, California; Jason B. Sykes and Derek A. Newman, Newman Du Wors LLP, Seattle, Washington; for Real Parties in Interest.

          Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         In an action challenging a 2017 Presidential Memorandum which barred transgender individuals from serving in the military, the panel: (1) vacated the district court's order striking the defendants' motion to dissolve a 2017 preliminary injunction that had stayed enforcement, and remanded to the district court to reconsider the motion; (2) stayed the 2017 preliminary injunction through the district court's further consideration of defendants' motion to dissolve the injunction; and (3) issued a writ of mandamus vacating the district court's discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges.

         In July 2017, President Trump announced on Twitter that transgender individuals would not be allowed to serve in the military. This was followed by an August 2017 Memorandum implementing his announcement. Plaintiffs brought suit alleging that the Twitter Announcement and 2017 Memorandum unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum, essentially holding that it was not a considered military judgment that warranted deference. In March 2018, the President revoked the 2017 Memorandum and authorized then-Secretary of Defense James Mattis to implement a policy, based on a 44-page report, which addressed a medical condition, gender dysphoria, rather than transgender status. Defendants then asked the district court to dissolve the 2017 preliminary injunction on the basis that the 2018 Policy was a new policy to be evaluated on its own merit. The district court struck the motion to dissolve.

         In vacating the district court's order striking defendants' motion to dissolve the 2017 preliminary injunction, the panel held that the 2018 Policy was significantly different from the 2017 Memorandum in both its creation and its specific provisions and therefore defendant had made the requisite threshold showing of a significant change of facts. The panel therefore remanded for the district court to address whether the change warranted dissolution of the 2017 preliminary injunction.

         In determining what level of scrutiny the district court should apply on remand, the panel concluded that the 2018 Policy on its face treated transgender persons differently than other persons, and consequently something more than rational basis but less than strict scrutiny applied to the military's decisionmaking. The panel further concluded that on the current record, a presumption of deference was owed to the decisionmaking because the 2018 Policy appeared to have been the product of independent military judgment, and therefore the district court could not substitute its own evaluation of evidence for a reasonable evaluation by the military. The panel further stayed the 2017 preliminary injunction consistent with the Supreme Court's order of January 22, 2019, which had stayed the preliminary injunction pending appeal in the Ninth Circuit. The panel stated that should the district court deny the motion to dissolve the injunction, the stay would remain in place throughout this Court's disposition of any appeal by the Government.

         The panel issued a writ of mandamus vacating the district court's discovery order which had granted plaintiffs' motion to compel discovery of government documents. The panel held that the executive privileges-the presidential communications privilege and deliberative process privilege-although not absolute, required careful consideration by the judiciary, even when they have not been clearly or persuasively raised by the government. The panel held that in its further considerations of plaintiffs' discovery requests, the district court should give careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984).

          OPINION

          PER CURIAM:

         In July 2017, President Trump announced on Twitter that transgender individuals would not be allowed to serve in the military. This was followed by an August 2017 Memorandum implementing his announcement. Plaintiffs, transgender individuals who serve in the military or seek to do so, subsequently joined by the State of Washington, brought this lawsuit alleging that the 2017 Memorandum unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum, essentially holding that it was not a considered military judgment that warranted deference. Defendants, the President and certain federal agencies and officials, appealed the preliminary injunction but then voluntarily withdrew their appeal.

         In the meantime, a panel appointed by then-Secretary of Defense James Mattis studied the issue of transgender individuals serving in the military. After the panel completed its work, the Defense Department produced a 44-page report. Based on this report, Secretary Mattis recommended to the President that he revoke the 2017 Memorandum so that he could adopt the report's recommendation. The President followed the recommendation and on March 23, 2018, revoked his 2017 Memorandum and authorized Secretary Mattis to implement the policies he proposed based on the 44-page report (these are sometimes referred to collectively as the "2018 Policy").

         Defendants then requested that the district court dissolve its preliminary injunction on the basis that the 2018 Policy was a new policy that had to be evaluated on its own merit. Defendants asserted that the 2018 Policy addressed a medical condition, gender dysphoria, rather than transgender status. The district court struck the motion to dissolve the injunction. Defendants filed this appeal from that order.

         Proceedings continued in the district court. On April 19, 2018, the district court struck Defendants' motion for a protective order precluding discovery pending the resolution of Defendants' appeal. On July 27, 2018, the district court issued an order denying Defendants' motion for a protective order of discovery directed at President Trump and granting Plaintiffs' motion to compel the production of documents withheld solely under the deliberative process privilege within ten days. Defendants filed a petition for writ of mandamus with this Court challenging the discovery order. Subsequent orders have stayed further discovery until after we decide the petition.

         We vacate the district court's order striking the Defendants' motion to dissolve the preliminary injunction and we remand to the district court to reconsider the motion. In light of the Supreme Court's January 22, 2019 stay of the district court's preliminary injunction, we stay the preliminary injunction through the district court's further consideration of Defendants' motion to dissolve the injunction. In addition, we issue a writ vacating the district court's discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984).

         I

         A. Background

         Historically, transgender individuals could not serve openly in the military.[1] In August 2014, the Department of Defense ("DoD") eliminated its categorical ban on retention of transgender service members, enabling each branch of the military to reassess its own policies. In 2015, then-Secretary of Defense Ashton Carter created a working group to study the policy and readiness implications of allowing transgender individuals to serve in the military. Secretary Carter instructed the working group to "start with the presumption that transgender persons can serve openly without adverse impact on military effectiveness and readiness, unless and except where objective, practical impediments are identified." As part of this review, the RAND National Defense Research Institute was commissioned to conduct a study and issue a report of its findings (the "RAND Report").[2] The RAND Report concluded that health care for transgender service members would be a "very small part of the total health care" provided to service members and estimated the impact on the military's readiness from accepting transgender individuals would be "negligible."

         Following the issuance of the RAND Report, Secretary Carter in June 2016 ordered the armed forces to adopt a new policy on military service by transgender individuals (the "Carter Policy"). The policy provided that "transgender individuals shall be allowed to serve [openly] in the military . . . while being subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming, deployability, and retention."

         On June 30, 2017, Secretary Mattis deferred accessing transgender applicants into the military until January 1, 2018.[3] The announcement stated that the armed forces "will review their accession plans and provide input on the impact to the readiness and lethality of our forces."

         1. The July 26, 2017 Twitter Announcement

         On July 26, 2017, President Trump announced over Twitter that the United States would no longer accept or allow transgender people to serve in the military:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

         This is sometimes referred to as the "Twitter Announcement."

         2. The August 25, 2017 Presidential Memorandum

         The Twitter Announcement was followed on August 25, 2017, by a Presidential Memorandum (the "2017 Memorandum," and collectively with the Twitter Announcement, sometimes referred to as "the Ban"). The 2017 Memorandum noted that until June 2016, the DoD and the Department of Homeland Security ("DHS") "generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals." The 2017 Memorandum noted that Secretary Carter had revised those policies in 2016, but it expressed the view that Secretary Carter had "failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources."

         The 2017 Memorandum "direct[ed] the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not . . . . hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources."

         Specifically, the 2017 Memorandum directed the Departments to "maintain the [pre-2016] policy regarding accession of transgender individuals into military service," and to "halt all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel."[4] It directed the Secretary of Defense, in consultation with the Secretary of Homeland Security, to submit "a plan for implementing" the general policy and the specific directives of the 2017 Memorandum by February 21, 2018. It provided that, "[a]s part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military," but stated that, "[u]ntil the Secretary has made that determination, no action may be taken against such individuals under the policy [mandating a return to the pre-2016 policy]."[5]

         3. The Complaint

         Following the Twitter Announcement and the 2017 Memorandum, a complaint was filed in the District Court for the Western District of Washington. Shortly thereafter, Plaintiffs filed an amended complaint, which is the most recent statement of Plaintiffs' claims. The amended complaint alleges that the policy adopted through the Twitter Announcement and the 2017 Memorandum discriminates against transgender people regarding military service in violation of the equal protection and substantive due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment of the U.S. Constitution.

         Plaintiffs included nine individuals, three organizations, and, as intervenor, the State of Washington. Plaintiff Ryan Karnoski, for example, is a transgender man who holds a master's degree in social work, works as a mental health technician, comes from a family with a history of military service, and aspires to serve as an officer in the military. His desire to join the military came into sharper focus following the death of his cousin, who was killed in action in Afghanistan in 2009. He would like to join the military but is prohibited from doing so because of his transgender status. Plaintiff Staff Sergeant Cathrine Schmid is a transgender woman who was diagnosed with gender dysphoria in 2013. She joined the Army in 2005, has received numerous awards and decorations for her service, and currently serves as a Signals Intelligence Analyst. She serves openly as a woman, and she is recognized and treated as female in all aspects of military life. In June 2017, Staff Sergeant Schmid submitted an application to become an Army warrant officer, but her application was placed on hold in light of her transgender status.

         4. Secretary Mattis' September 2017 Interim Guidance

         On September 14, 2017, Secretary Mattis acknowledged receipt of the 2017 Memorandum and promised to "present the President with a plan to implement the policy and directives in the Presidential Memorandum" no later than February 21, 2018. Secretary Mattis also issued "Interim Guidance" to take effect immediately and remain in effect pending promulgation of a final policy. The Interim Guidance provided that the pre-2016 policies prohibiting the accession of transgender individuals into the military would remain in effect and that no new sex reassignment surgical procedures for military personnel would be permitted after March 22, 2018. It further provided that "no action may be taken to involuntarily separate or discharge an otherwise qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender status" during the interim period.

         5. Secretary Mattis' Creation of a Panel to Develop the Implementation Plan

         On the same day that Secretary Mattis issued the Interim Guidance, he directed "the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff to lead the [DoD] in developing an Implementation Plan on military service by transgender individuals, to effect the policy and directives in [the] Presidential Memorandum." The Implementation Plan was to "establish the policy, standards and procedures for service by transgender individuals in the military, consistent with military readiness, lethality, deployability, budgetary constraints, and applicable law." The Deputy Secretary of Defense and Vice Chairman of the Joint Chiefs of Staff were to be supported by "a panel of experts drawn from [the] DoD and [DHS]," consisting of "senior uniformed and civilian Defense Department and U.S. Coast Guard leaders" and "combat veterans." Secretary Mattis directed this panel to "bring a comprehensive, holistic, and objective approach to study military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion, with due regard for budgetary constraints and consistent with applicable law."

         6. The December 11, 2017 Preliminary Injunction

         On December 11, 2017, the district court issued a nationwide preliminary injunction enjoining Defendants from "taking any action relative to transgender people that is inconsistent with the status quo that existed prior to President Trump's July 26, 2017 announcement."[6] Defendants filed an appeal from the preliminary injunction, but subsequently moved to voluntarily dismiss their appeal.[7]

         7. The February 2018 Defense Department Report

         The panel created by Secretary Mattis met 13 times over a period of 90 days. Secretary Mattis reported that the panel: \

met with and received input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professionals with experience in the care and treatment of individuals with gender dysphoria. The [p]anel also reviewed available information on gender dysphoria, the treatment of gender dysphoria, and the effects of currently serving individuals with gender dysphoria on military effectiveness, unit cohesion, and resources. Unlike previous reviews on military service by transgender individuals, the [p]anel's analysis was informed by the Department's own data obtained since the [Carter Policy] began to take effect last year.

         In February 2018, the Department of Defense produced a 44-page report based on the panel's ...


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