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Doe v. Mattis

United States District Court, District of Columbia

November 30, 2018

JANE DOE 2, et al., Plaintiffs
v.
JAMES MATTIS, et al., Defendants

          ORDER

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion to Stay the Preliminary Injunction Pending Appeal. Defendants request a stay of the Court's October 30, 2017, preliminary injunction, which prevents Defendants from enforcing a ban on transgender individuals serving in the military. Defendants ask that the stay be granted pending any potential, future proceedings in the United States Supreme Court. Alternatively, at a minimum, Defendants request a stay of the nationwide scope of the injunction pending the outcome of their appeal to the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), in which oral argument will be heard on December 10, 2018. Plaintiffs oppose Defendants' motion on various grounds.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as it currently stands, the Court concludes that a stay is not warranted. Defendants have not proven that they are likely to succeed on the merits of their appeal, that they face irreparable harm, that Plaintiffs would not be harmed by a stay, or that public interest favors a stay. Accordingly, Defendants' [183] Motion is DENIED.

         I. Background

         This is not the first, or even the second, attempt by Defendants to either stay or dissolve the Court's preliminary injunction. On October 30, 2017, the Court granted Plaintiffs a preliminary injunction against the enforcement of a 2017 Presidential Memorandum prohibiting transgender individuals from serving in the military. As is relevant here, the effect of the Court's preliminary injunction was “to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum-that is, the retention and accession policies established in a June 30, 2016 Directive-type Memorandum and later modified by Secretary of Defense James Mattis on June 30, 2017.” Doe 1 v. Trump, 275 F.Supp.3d 167, 177 (D.D.C. 2017). The policies that Defendants were required to follow allowed for the accession and retention of transgender individuals in the military beginning on January 1, 2018.

         Following the Court's issuance of the preliminary injunction, Defendants moved for a partial stay of the preliminary injunction pending appeal. See Defs.' Mot. for Partial Stay of Preliminary Injunction Pending Appeal, ECF No. 73. Specifically, Defendants asked the Court to stay the portion of the preliminary injunction which prevented Defendants from indefinitely extending a prohibition against transgender individuals entering the military. The Court refused to grant a stay, finding that the factual record had not changed in any material way since the Court issued the preliminary injunction and that a stay was not otherwise justified. See generally Doe 1 v. Trump, No. 17-1597, 2017 WL 6816476 (D.D.C. Dec. 11, 2017).

         Defendants next made an emergency motion to the D.C. Circuit for an administrative stay and a partial stay of the preliminary injunction pending appeal. But, Defendants' motion was denied as the Circuit Court concluded that Defendants had not demonstrated that they had a strong likelihood of success on appeal, that they would face irreparable harm, that the stay would not harm other parties to the proceeding, or that public interest warranted a stay. See generally Doe 1 v. Trump, No. 17-5267, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017). The Circuit Court reminded Defendants “that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.” Id. at *3. Following the decision by the D.C. Circuit, Defendants voluntarily dismissed their appeal of this Court's preliminary injunction issued on October 30, 2017. See USCA Order, ECF No. 79-1.

         With the preliminary injunction still in place, the case moved forward with discovery. But, despite Court orders mandating discovery, that discovery remained unfinished in early 2018 because Defendants asserted privileges over a large portion of the documents and information requested by Plaintiffs. In March of 2018, the President issued another Presidential Memorandum revoking his 2017 Presidential Memorandum and any other directives involving transgender military service. Defs.' Notice, 2018 Presidential Memorandum, ECF No. 95-1, 1. The 2018 memorandum ordered that “[t]he Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, may exercise their authority to implement any appropriate policies concerning military service by transgender individuals.” Id. The “appropriate policies” had already been developed and proposed to the President in the form of the Mattis Implementation Plan.

         In summary form, the Mattis Implementation Plan implements the 2017 Presidential Memorandum banning transgender individuals from serving in the military. Unlike the 2017 memorandum, the Mattis Implementation Plan purports not to ban all transgender individuals from serving in the military. But, as the Court has previously explained, “the plan effectively implements such a ban by targeting proxies of transgender status, such as ‘gender dysphoria' and ‘gender transition,' and by requiring all service members to serve ‘in their biological sex.'” Doe 2 v. Trump, 315 F.Supp.3d 474, 482 (D.D.C. 2018).

         Following the development of the Mattis Implementation Plan, Defendants asked that this Court dissolve its preliminary injunction as the implementation plan represented a new policy which did not harm Plaintiffs. See generally Defs.' Mot. to Dissolve the Preliminary Injunction, ECF No. 116. The Court denied Defendants' motion to dissolve the preliminary injunction. Doe 2, 315 F.Supp.3d at 496-98. The Court found that, although the Mattis Implementation Plan was longer and more detailed, it was not materially different from the 2017 Presidential Memorandum that preceded it in that it effectively prevents military service by transgender individuals. Id. at 496-97. Most relevantly, the Mattis Implementation Plan prohibits military service by those with “gender dysphoria” and those who have undergone or require “gender transition, ” both of which function as euphemisms for transgender status. Id. at 482-83. The plan does allow transgender individuals to serve in the military if they do so in their biological sex. But, given that, by definition, transgender individuals do not identify or live in accord with their biological sex, the Court concluded that “[t]olerating a person with a certain characteristic only on the condition that they renounce that characteristic is the same as not tolerating them at all.” Id. at 495. Because the Mattis Implementation Plan fundamentally implemented the 2017 Presidential Memorandum banning transgender military service, the Court concluded that the need for the preliminary injunction remained unchanged.[2]

         After the Court's denial of Defendants' motion to dissolve the preliminary injunction, the parties continued with discovery. The parties' discovery has been consistently plagued by disputes and delays. Plaintiffs completed briefing their motion to compel discovery and Defendants their motions for protective orders on November 13, 2018. Eight days later, Defendants filed this motion, again attempting to stay the Court's preliminary injunction.

         Despite the lack of material changes to the factual record, Defendants are again attempting to rid themselves of the Court's preliminary injunction. And, the Court cannot help but question why Defendants have, again, decided to challenge the Court's preliminary injunction at this point in the litigation. The preliminary injunction has been in place for more than a year. Yet, Defendants present no evidence that the Court's preliminary injunction maintaining the status quo of allowing transgender individuals to serve in the military has harmed military readiness. Accordingly, the Court fails to understand why Defendants' need for relief from the Court's preliminary injunction has suddenly become urgent, requiring an expedited ruling. The only apparent justification for Defendants' choice to bring this motion at this time is that Defendants have recently filed a petition for a writ of certiorari in the Supreme Court, asking the Supreme Court to review this Court's preliminary injunction before the D.C. Circuit has had the opportunity to issue a judgment. See generally Defs.' Notice of Filing Pet. for Writ of Cert. before Judgment, ECF No. 184. But, that petition would seem to have no bearing on Defendants' decision to file this motion, which is, after all, their third bite at the apple in this Court. If Defendants are eager to rid themselves of the Court's preliminary injunction, Defendants should note that motions such as this one serve to slow litigation and only increase the time which Defendants must wait for the Court's final decision on the merits.

         II. Legal Standard

         Upon careful consideration of Defendants' arguments, the Court concludes that a stay of the Court's preliminary injunction is not warranted. “In the D.C. Circuit, a court assesses four factors when considering a motion to stay an injunction pending appeal: (1) the moving party's likelihood of success on the merits of its appeal, (2) whether the moving party will suffer irreparable injury, (3) whether issuance of the stay would substantially harm other parties in the proceeding, and (4) the public interest.” Akiachak Native Cmty. v. Jewell, 995 F.Supp.2d 7, 12 (D.D.C. 2014) (citing Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)). The Court concludes that none of these factors justifies staying the Court's preliminary injunction. Accordingly, Defendants' motion is DENIED.

         III. Likelihood of Success on the Merits

         The Court begins with the main focus of Defendants' motion: that they are likely to succeed on the merits of their appeal. Defendants have two main arguments as to why they are likely to succeed on appeal. First, Defendants argue that Plaintiffs' constitutional challenges lack merit. Second, Defendants contend that the nationwide scope of the Court's preliminary injunction is improper. The Court concludes that neither argument is persuasive.

         A. Constitutional Merit of Plaintiffs' Claims

         First, Defendants claim that they are likely to succeed on the merits of their appeal because Plaintiffs' constitutional challenges lack merit. Specifically, Defendants contend that the Mattis Implementation Plan turns on a medical condition, gender dysphoria, and its treatment, gender transition, not on any suspect classification such as transgender status or gender. Accordingly, Defendants argue that rational basis review applies, and the policy satisfies that deferential review because it reflects the military's reasoned judgment. See Defs.' Mot., ECF No. 183, 5.

         Unsurprisingly, the Court does not agree with Defendants that Plaintiffs' constitutional challenges lack merit. As the Court has previously found, the Mattis Implementation Plan, like the 2017 Presidential Memorandum which preceded it, functionally prevents transgender individuals from serving in the military. See Doe 2, 315 F.Supp.3d at 492-96. Because the Mattis Implementation Plan functions as a class-wide ban based on a protected status, the Court's initial conclusion that Plaintiffs are likely to succeed on their Fifth Amendment claims remains unchanged by the development of the Mattis Implementation Plan. See Doe 1, 275 F.Supp.3d at 208-211 (explaining that the ban discriminates on the basis of transgender status, which is likely a quasi-suspect classification, and gender, which is subject to intermediate scrutiny).

         The Court concludes for three reasons that the Mattis Implementation Plan does not change the Court's initial assessment that Plaintiffs are likely to succeed on their constitutional claims. First, the 2017 Presidential Memorandum ordered that a plan to implement a policy prohibiting transgender military service be submitted by February 2018. Second, in the months following the issuance of the 2017 Presidential Memorandum, Department of Defense officials repeatedly stated that they were preparing such an implementation plan based on the President's policy directive. And third, the Mattis Implementation Plan was provided to the President in February 2018, and it in fact prohibits transgender military service.

         The 2017 Presidential Memorandum directed the Department of Defense to submit, by February 2018, a plan to implement the President's policy directive banning transgender individuals from serving in the military. The 2017 Presidential Memorandum ordered the Secretary of Defense to prepare an “implementation plan” that was circumscribed to suggestions about how to “implement a policy under which transgender accession is prohibited, and discharge of transgender service members is authorized.” Doe 1, 275 F.Supp.3d at 195; see also 2017 Presidential Memorandum, ECF No. 34-1 (instructing the Secretaries of Defense and Homeland Security to “submit to [the President] a plan for implementing both the general policy … and the specific directives set forth in … this memorandum”). The memorandum did not ask for the submission of a new policy on transgender service. And the memorandum did not ask for an independent reexamination of whether or not transgender military service should be permitted. See Karnoski v. Trump, No. C17-1297, 2018 WL 1784464, at *6 (W.D. Wash. Apr. 13, 2018) (“The 2017 Memorandum did not direct Secretary Mattis to determine whether or not the directives should be implemented, but instead ordered the directives to be implemented by specific dates and requested a plan for how to do so.” (emphasis in original)). The 2017 Presidential Memorandum simply asked the Department of Defense to submit an implementation plan for carrying out a predetermined objective-banning transgender individuals from serving or joining the military.

         Second, the actions and statements of Secretary Mattis, and the Department of Defense generally, preceding the Mattis Implementation Plan indicate that the plan was being developed to implement President Trump's 2017 policy directives, not to examine, question, or possibly amend those directives. On August 29, 2017, Secretary Mattis issued a statement on “Military Service by Transgender Individuals.” Milgroom Decl., ECF No. 128, Ex U. It is clear from the title of the statement that it pertained to service by transgender individuals, not just those with gender dysphoria or those who had undergone or planned to undergo gender transition. In the statement, Secretary Mattis made clear that the Department of Defense had “received the [2017] Presidential Memorandum” and would “carry out the president's policy direction.” Id. He further stated that he would establish a panel of experts not to decide whether or not transgender individuals should be permitted to serve, but instead simply “to provide advice and recommendations on the implementation of the president's direction.” Id. (emphasis added). Following the panel report and consultation with the Department of Homeland Security, Secretary Mattis indicated that he would ...


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