United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge.
26, 2017, President Donald J. Trump issued a statement via
Twitter announcing that “the United States Government
will not accept or allow transgender individuals to serve in
any capacity in the U.S. Military.” This lawsuit
followed. On October 30, 2017, the Court issued a preliminary
injunction, the effect of which was to revert to the
status quo ante with regard to military policy on
have filed several motions which are currently pending before
the Court, including Defendants'  Motion for a
Protective Order and  Partial Motion for Judgment on the
Pleadings and Unopposed Motion to Partially Dissolve the
Preliminary Injunction, both of which relate only to the
status of President Donald J. Trump as a party in this
litigation. In summary form, Defendants move for the
dismissal of the President as a party in this case. In
addition, Defendants move to dissolve the preliminary
injunction as it applies to the President only. Finally,
Defendants also move for an order that the President himself
does not have to respond to certain discovery requests that
Plaintiffs have issued to him as a party in this case.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court will GRANT
Defendant's Partial Motion for Judgment on the Pleadings
and to Partially Dissolve the Preliminary Injunction only as
to President Trump as a Defendant in this case. The President
will be dismissed as a party and the Court's preliminary
injunction will be dissolved only as it applies to the
President. The Court shall not grant injunctive or
declaratory relief directly against the President with
respect to his discretionary acts that are the focus of this
lawsuit. Because no relief will be granted directly against
the President in this case, the Court will dismiss him as a
party to avoid unnecessary constitutional confrontations. The
Court emphasizes that, regardless of this decision, the Court
is still able to review the legality of the President's
actions, and Plaintiffs-if successful-can still obtain
all of the relief that they seek. Given that the
President is no longer a party to the case, the Court will
DENY as MOOT Defendants' Motion for a Protective Order.
That motion sought to prevent discovery that Plaintiffs had
requested from the President as a party to this case. The
President is no longer a party.
to Federal Rule 12(c), a party may move for judgment on the
pleadings “[a]fter the pleadings are closed-but early
enough not to delay trial.” The standard for reviewing
a motion for judgment on the pleadings is virtually identical
to that applied to a motion to dismiss under Rule 12(b)(6).
See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.
Cir. 1987), abrogated on other grounds by Hartman v.
Moore, 547 U.S. 250 (2006); Jung v. Ass'n of Am.
Med. Colleges, 339 F.Supp.2d 26, 36 (D.D.C. 2004)
(“[T]he standard of review for motions for judgment on
the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is essentially the same as that for motions to
dismiss under Rule 12(b)(6).”). “The court is
limited to considering facts alleged in the complaint, any
documents attached to or incorporated in the complaint,
matters of which the court may take judicial notice, and
matters of public record.” Baumann v. D.C.,
744 F.Supp.2d 216, 222 (D.D.C. 2010).
Partial Motion for Judgment on the Pleadings and Motion to
Partially Dissolve the Preliminary Injunction
initial matter, Plaintiffs do not oppose the dissolution of
the preliminary injunction insofar as it runs against the
President. See Pls.' Opp'n at 14. In fact,
in their recently-filed Second Amended Complaint, Plaintiffs
specify that they are no longer seeking preliminary (or
permanent) injunctive relief from the President at all.
See Second Amended Compl., ECF No. 106
(“Compl.”), at 20. Accordingly, the Court GRANTS
Defendants' motion to partially dissolve the preliminary
injunction as unopposed. The Court will dissolve its October
30, 2017 preliminary injunction to the extent that the
injunction applied to the President. The injunction
remains in force as it applies to all other Defendants.
the Court also GRANTS Defendants' motion in that it will
dismiss the President himself as a party to this case.
Through this lawsuit, Plaintiffs ask this Court to enjoin a
policy that represents an official, non-ministerial act of
the President, and declare that policy unlawful. See
Compl. at 20. Sound separation-of-power principles counsel
the Court against granting these forms of relief against the
President directly. See Franklin v. Massachusetts,
505 U.S. 788, 802- 03 (1992) (holding that “in general
‘this court has no jurisdiction of a bill to enjoin the
President in the performance of his official
duties.'”) (quoting State of Mississippi v.
Johnson, 71 U.S. 475, 501 (1866)); Id. at 827
(Scalia, J., concurring in part and concurring in the
judgment) (“The apparently unbroken historical
tradition supports the view, which I think implicit in the
separation of powers established by the Constitution, that
the principals in whom the executive and legislative powers
are ultimately vested-viz., the President and the Congress
(as opposed to their agents)-may not be ordered to perform
particular executive or legislative acts at the behest of the
Judiciary. For similar reasons, I think we cannot issue a
declaratory judgment against the President.”);
Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir.
2010) (“With regard to the President, courts do not
have jurisdiction to enjoin him, and have never submitted the
President to declaratory relief”) (internal citation
omitted); Swan v. Clinton, 100 F.3d 973, 978 (D.C.
Cir. 1996) (holding that courts do not have authority to
enjoin the President in the performance of his official
duties, and noting that the rationale for this limitation is
“painfully obvious”); Id. at 976 n.1
(“similar considerations regarding a court's power
to issue relief against the President himself apply to
[plaintiff's] request for a declaratory
judgment.”); Newdow v. Bush, 355 F.Supp.2d
265, 280 (D.D.C. 2005) (“There is longstanding legal
authority that the judiciary lacks the power to issue an
injunction or declaratory judgment against the co-equal
branches of the government-the President and the
that the Court will not grant Plaintiffs the relief that they
seek against the President himself, the President should be
dismissed. “‘[O]ccasion[s] for constitutional
confrontation between the two branches' should be avoided
whenever possible.” Cheney v. U.S. Dist. Court for
D.C., 542 U.S. 367, 389-90 (2004) (quoting United
States v. Nixon, 418 U.S. 683, 692 (1974)).
Confrontation can be easily avoided here, because dismissing
the President will have little or no substantive effect on
this litigation. Plaintiffs argue that the acts of the
President himself are central to this case, and the Court
agrees. But dismissing the President as a Defendant does not
mean that those acts will not be subject to judicial review.
The Court can still review those acts and, if Plaintiffs are
successful in proving that they are unconstitutional,
Plaintiffs can still obtain all of the relief that they seek
from the other Defendants. See Defs.' Mot. at 7
(conceding that “Plaintiffs could obtain full relief
for their alleged injuries through injunctive relief
against” the Defendants other than the President);
see also Swan, 100 F.3d at 978 (“In most
cases, any conflict between the desire to avoid confronting
the elected head of a coequal branch of government and to
ensure the rule of law can be successfully bypassed, because
the injury at issue can be rectified by injunctive relief
against subordinate officials.”).
raise a number of arguments against dismissal of the
President, but none of them are persuasive. First, Plaintiffs
argue that the case law cited above addresses whether
injunctive and declaratory relief is available against the
President, not whether the President must be dismissed from a
civil lawsuit altogether. This is true. However, the
Court's decision, informed by this case law, that it will
not grant relief against the President still counsels in
favor of dismissing him as a party from this case. It makes
little sense to retain a party in a case from whom no relief
will be granted under ordinary circumstances, and especially
little sense when retaining that party risks unnecessary
constitutional confrontations. By this ruling the Court does
not, as Plaintiffs suggest, announce a new rule of
“absolute immunity” for the President from civil
suits for equitable relief. The Court merely holds that on
the particular facts of this case- where no relief is
available from the President himself, the Court can review
the policy at issue without the President as a party, and
Plaintiffs can obtain all of the relief that they seek from
other Defendants-there is no sound reason for risking
constitutional confrontations by retaining the President as a
Plaintiffs point out that Defendants did not move to dismiss
the President earlier, and suggest that Defendants are only
now seeking to do so now in order to avoid the President
having to respond to pending discovery requests.
Defendants' motion was technically timely. A party may
move for judgment on the pleadings “[a]fter the
pleadings are closed-but early enough not to delay
trial.” Fed.R.Civ.P. 12(c). More importantly, even
assuming that Plaintiffs are correct about Defendants'
motive in moving to dismiss the President, the Court would
hesitate to deny the motion on that basis. Regardless of the
motivation for filing it, Defendants' motion presents
sound reasons for dismissing the President based on
well-established separation of power principles set forth in
United States Supreme Court and D.C. Circuit precedent.
Plaintiffs argue that if the President is dismissed, seeking
discovery from him will be more difficult. Pls.'
Opp'n at 1-2. But it would not be appropriate to retain
the President as a party to this case simply because it will
be more complicated to seek discovery from him if he is
dismissed. To the extent that there exists relevant and
appropriate discovery related to the President, Plaintiffs
will still be able to obtain that discovery despite the
President not being a party to the case.
Plaintiffs cite Nat'l Treasury Employees Union v.
Nixon, 492 F.2d 587 (D.C. Cir. 1974)
(“NTEU”) for the proposition that
“no immunity established under any case known to this
Court bars every suit against the President for injunctive,
declaratory or mandamus relief.” Id. at 609.
As an initial matter, NTEU predated the Supreme
Court's decision in Franklin-which warned that
injunctive relief against the President personally is an
extraordinary measure not lightly to be undertaken-and
accordingly the D.C. Circuit has commented that “[i]t
is not entirely clear, of course, whether, and to what
extent, [that] decision[ ] remain[s] good law.”
Swan, 100 F.3d at 978. Regardless, NTEU is
distinguishable. That case dealt with the question-left open
by Mississippi v. Johnson-of “whether a court
can compel the President to perform a ministerial
act” (in that case, adjusting the pay of federal
employees as required by an act of Congress). Id. at
607 (emphasis added). “A ministerial duty . . . is one
in respect to which nothing is left to discretion.”
State of Mississippi v. Johnson, 71 U.S. at 498.
“It is a simple, definite duty, arising under
conditions admitted or proved to exist, and imposed by
law.” Id. The acts of the President at issue
in this case cannot plausibly be considered
“ministerial.” In addition, the court in
NTEU distinguished the facts of that case from those
in Mississippi v. Johnson by noting that “[i]n
sharp contrast to Mississ ...