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Doe v. Esper

United States District Court, District of Columbia

September 13, 2019

JANE DOE 2, et al., Plaintiffs
v.
MARK T. ESPER, et al., Defendants

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY United States District Judge.

         The Court has considered Plaintiffs' [213-1] Motion to Compel Production of Documents Improperly Withheld by Defendants.[1] The parties present a myriad of discovery disputes ranging from broad issues, such as whether or not certain topics are relevant to this lawsuit, to specific issues, such as whether or not certain entries in Defendants' Vaughn index are sufficiently detailed. In an effort to narrow or reframe the issues requiring the Court's resolution, the Court will now resolve many of the overarching disagreements between the parties.

         In summary, the Court has reached the following four conclusions. First, the Court rejects Defendants' argument that the level of deference to be applied to the Mattis Plan is already conclusively established. On the current record, the level of deference to be applied to the Mattis Plan remains unclear. Additional discovery is needed to determine if the Plan is the product of considered military decision-making that reasonably and evenhandedly regulates the matter at issue. Second, the Court concludes that the relevant time-period for discovery is the development of the Mattis Plan. On the current record, Plaintiffs have not established a sufficient connection between the development of the Mattis Plan and the earlier delay of the Carter Policy, the President's 2017 tweet, and the 2017 Presidential Memorandum to justify further discovery into those earlier events. Third, the Court concludes that Defendants may not assert the deliberative process privilege over documents that were used or considered in the Panel of Experts for the Transgender Policy Review's (the “Panel”) development of the Mattis Plan as those documents go to the heart of Defendants' intent and decision-making process. The Court further finds that, even if the deliberative process privilege were to apply to this subcategory of documents, Plaintiffs need for the information overcomes Defendants' privilege. The Court acknowledges that this conclusion will likely still require the Court to determine whether or not certain, individual documents fall into this subcategory of documents which is not protected by the deliberative process privilege. Finally, the Court concludes that the parties need to conduct additional negotiations to determine whether or not Plaintiffs' narrowed requests for the raw data, personnel files, and field reports supporting the statistical summaries and conclusions of the Mattis Report remain overly burdensome.

         In resolving these overarching disagreements, Plaintiffs will be able to narrow their discovery requests and Defendants will be able to respond to these narrowed requests with the knowledge of what matters are subject to discovery in this case, either producing documents or formulating refined objections. The parties should meet and confer to determine how they can most efficiently proceed using the Court's guidance contained herein. The Court notes that in complying with the Court's findings and conclusions regarding the nature and scope of discovery in this case, the parties are not withdrawing their arguments and/or objections; all of which are preserved for the record. The parties shall file a Status Report by OCTOBER 25, 2019, indicating how they intend to proceed given the findings and conclusions in this Memorandum Opinion.

         I. Level of Deference to be Applied to the Mattis Plan

         The first overarching issue that the Court will address is the level of deference to be applied to the Mattis Plan in this case. Defendants contend that “this Court must apply military deference in reviewing the [Mattis Plan] and that discovery about the process behind the development of the new policy is irrelevant to determining whether military deference applies.” Defs.' Res., ECF No. 218, 12 (emphasis in original). The Court disagrees.

         Defendants argue that the D.C. Circuit's judgment and concurring opinions reversing this Court's denial of Defendants' motion to dissolve the preliminary injunction conclusively establish that military deference is owed in this case. See generally Doe v. Shanahan, 755 Fed.Appx. 19 (D.C. Cir. 2019) (judgment); Doe v. Shanahan, 917 F.3d 694 (D.C. Cir. 2019) (concurring opinions). Defendants quote language from the D.C. Circuit's judgment stating that “in a constitutional challenge ‘to decisions by the executive and legislative branches regarding the composition and internal administration of combat-ready military forces[, ]' ‘courts must give great deference to the professional judgment of military authorities.'” Defs.' Res., ECF No. 218, 11 (quoting Doe, 755 Fed.Appx. at 24). Defendants further explain that, because the Mattis Plan involves issues of military readiness, the Court must be careful to avoid substituting its own judgment for the military's reasoned judgment. Defendants' argument is particularly reliant on the concurring opinion of Judge Williams. Defendants cite to Judge Williams's rejection of “‘plaintiffs' contention, accepted by the district court, that deference to military decisionmaking … depends on the actual exercise of independent military judgment.'” Defs.' Res., ECF No. 218, 13 (quoting Doe, 917 F.3d at 729 (Williams, J., concurring)). Instead, Judge Williams explained that “‘the Constitution itself requires deference to the military choices of the political branches.'” Id. (quoting Doe, 917 F.3d at 730 (Williams, J., concurring)).

         Under Defendants' theory, deference is owed to the Mattis Plan regardless of the decision-making process in which Defendants engaged. Because the decision-making process is irrelevant to the Court's standard of review, Defendants argue that discovery into the decision-making process is improper. The Court concludes that Defendants have misinterpreted the D.C. Circuit's judgment and are overly reliant on the concurring opinion of Judge Williams.

         First, the D.C. Circuit's judgment did not require that military deference be applied in this case on the limited record before the Court. The D.C. Circuit explained that “[c]ourts ‘must be particularly careful not to substitute our judgment of what is desirable for that of [the executive and legislative branches], or our own evaluation of evidence for [their] reasonable evaluation.'” Doe, 755 Fed.Appx. at 24 (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981) (emphasis added)). Here, the D.C. Circuit does not require blind deference to any decision labeled as “military.” Instead, the D.C. Circuit instructs courts to defer to the military's “reasonable evaluation.” In order to determine whether or not the military's evaluation was reasonable, some discovery into Defendants' decision-making process is required.

         In making its ruling, the D.C. Circuit relied heavily on three Supreme Court cases each granting military deference. But, in all three of these cases, deference was granted after the Court had already determined that reasoned decision-making had taken place. First, in Rostker, the Supreme Court concluded that a sex-based draft registration statute, which excluded women from registering, was permissible and should be granted military deference. Rostker, 453 U.S. at 79. In granting deference, the Court found that “Congress carefully evaluated the testimony” that ran counter to the proposed policy. Id. at 82. The Court cited extensively to the evidence considered by Congress and repeatedly referred to Congress' “evaluation of that evidence.” Id. at 83. Next, in Goldman v. Weinberger, 475 U.S. 503 (1986), the Court rejected a First Amendment challenge to Air Force uniform regulations which prohibited the plaintiff from wearing a yarmulke. 475 U.S. at 509. Again, in upholding the military dress policy, the Court noted that it must give deference “to the professional judgment of military authorities.” Id. at 507. Deference was not granted automatically. Instead, the Court emphasized the “considered professional judgment” which contributed to a 190-page document describing in minute detail requirements for military dress. Id. at 508. Finally, in Trump v. Hawaii, 138 S.Ct. 2392 (2018), the Court upheld an executive order placing entry restrictions on nationals from eight foreign states. 138 S.Ct. at 2403-05. In granting the President deference on matters of national security, the Court emphasized the comprehensive nature of the world-wide study which led the President to place restrictions on those specific foreign states. Id. Notably, the Court found that the process did not begin with a preordained outcome. Instead, the Department of Homeland Security “collected and evaluated data regarding all foreign governments.” Id. at 2405. Accordingly, in the Supreme Court's opinions granting military and national security deference, a precursor to that grant of deference was the finding that reasoned decision-making had taken place.

         While the D.C. Circuit's Judgment did find that the Mattis Plan “plausibly” rests on reasoned military judgment, this finding was sufficient only to make the preliminary injunction unjustified. Doe, 755 Fed.Appx. at 25. This finding of plausibility does not negate the parties' material dispute of fact as to whether or not the Mattis Plan was based on the military's reasoned judgment. In his concurring opinion, Judge Wilkins explicitly refused to express a view on whether or not “the Mattis Plan was a product of comparable ‘considered professional judgment' as the policy in Goldman.” Doe, 917 F.3d at 704 (Wilkins, J., concurring).

         Based on these Supreme Court cases as well as the D.C. Circuit's judgment, the Court finds that military deference is not guaranteed based on the mere fact that the challenged policy concerns the military. Instead, military deference is granted to the military's “considered professional judgment” after the military has undertaken a “reasonable evaluation.” Goldman, 475 U.S. at 508; Rostker, 453 U.S. at 68.

         Judge Williams's concurring opinion in the judgment reversing this Court's denial of Defendants' motion to dissolve the preliminary injunction does not change the Court's analysis. Defendants are correct that Judge Williams implies that deference applies in cases related to the military regardless of whether or not the challenged decision was the result of reasoned decision-making. According to Judge Williams, deference applies to the decisions of military officials “not because of their expertise-but because the military authorities have been charged by the constitutionally responsible branches-that is, the Executive and Legislative Branches-with carrying out our Nation's military policy.” Doe, 917 F.3d at 730 (Williams, J., concurring) (internal quotation marks omitted). According to Judge Williams, no further discovery should be granted in this case because the Court should simply defer to the military's judgment.

         However, no other judge from the three-judge panel joined Judge Williams's concurring opinion. And, Judge Williams's concurring opinion is not binding on this Court. Moreover, another judge on the panel, Judge Wilkins, also filed a concurring opinion refuting some of Judge Williams's arguments. Judge Wilkins expressly disagreed with the notion that further discovery in this case should be prohibited. Judge Wilkins explained that “Congress and the Executive receive deference only where military policies are based upon the ‘considered professional judgment' of ‘appropriate military officials' and only after finding that these policies ‘reasonably and evenhandedly regulate' the matter at issue.” Id. at 703-04 (Wilkins, J., concurring) (quoting Goldman, 475 U.S. at 509-10). According to Judge Wilkins, the standard of review which should be used to assess the Mattis Plan depends on a variety of factors including “whether the policy was motivated by animus, ” “what military purposes are furthered by the policy, ” and “whether Congress or the Executive used considered judgment and accommodated the servicemembers' rights in a reasonable and evenhanded manner.” Id. at 704 (Wilkins, J., concurring). Additional discovery into the decision-making process of the Panel's development of the Mattis Plan is required to answer these questions.

         Accordingly, the Court finds that Judge Williams's concurring opinion fails to establish the level of deference the Court must exercise in evaluating the Mattis Plan. The level of deference to be applied depends, in part, on whether or not the Mattis Plan is a product of reasoned decision-making and an even-handed evaluation of the evidence.

         In sum, the Court concludes that, on the current record, neither party has established the level of deference owed to the Mattis Plan due to the absence or presence of reasoned military judgment. Additional discovery into the process of the Panel in developing the Mattis Plan is needed before the Court can determine the level of deference owed to the Plan.

         II. Relevant Time Period for Discovery

         The next broad issue presented in the parties' discovery briefing involves the relevant time period for discovery. Plaintiffs contend that Defendants have improperly withheld documents relating to the decision to delay implementation of the Carter Policy and the pre-Tweet review process. According to Plaintiffs, Defendants attempt to avoid claims of animus by alleging that, even before the President's 2017 Tweet, then-Secretary of Defense Jim Mattis had already initiated an independent review of the Carter Policy. Plaintiffs contend that they are entitled to documents relating to the scope and purpose of the pre-Tweet review of the Carter Policy. The Court disagrees and concludes that Plaintiffs' discovery requests should focus on the development of the Mattis Plan, not on the development or delay of policies which came before.

         The Court begins by addressing one of Plaintiffs' primary arguments in support of discovery into the pre-Tweet review of the Carter Policy. Plaintiffs contend that they “have a specific basis for [requesting] information relating to the scope and purpose of [the pre-Tweet] review, because information already produced by the government indicates that the object of the pre-Tweet process was to justify reversing the Carter Policy.” Pls.' Mot., ECF No. 213-1, 10. However, in its September 13, 2019 Sealed Memorandum Opinion, the Court found that the document on which Plaintiffs primarily rely is subject to multiple privileges and was ...


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