Karnoski v. Trump

Defendant motions to dismiss and stay

The United States Department of Justice Civil Division (USDOJ) filed a motion to dismiss on October 16, 2017, repeating arguments made in similar motions to dismiss for the related suits Jane Doe v. Trump, Stone v. Trump, and Stockman v. Trump. In the motion to dismiss, USDOJ called the challenge "premature several times over", asserting the Presidential Memorandum of August 25 merely ordered further studies and no policy changes would be implemented before March 18. In addition, USDOJ argued Secretary Mattis's Interim Guidance of September 14 prevented the involuntary discharge of any Service member on the basis of transgender status, and would continue to be provide medical treatment to Service members who were diagnosed with gender dysphoria.^[9]:4 Several days after the preliminary injunction was granted in Doe v. Trump, the Plaintiffs filed an opposing motion replying to the motion to dismiss, stating "The government’s defense is most notable for what it lacks: factual support to justify the Ban. Instead, Defendants assert that courts must defer to the military in military affairs. But it is difficult to imagine a situation where the extraordinary deference sought by the government would be less appropriate than here, where the President has discarded the military’s own considered judgment without any factual support for doing so."^[10]:11 USDOJ filed a response in support of dismissal on November 9, again asserting that since the issue is still being studied, "it remains uncertain whether Plaintiffs will suffer a cognizable injury caused by the military’s future policy."^[11]:3

On November 7, USDOJ filed a motion requesting a stay of proceedings, arguing "this Court should stay further proceedings in this case while the preliminary injunction in Doe remains in place",^[12]:2 referring to the October 30 Order by Judge Kollar-Kotelly in Jane Doe v. Trump providing a preliminary injunction to the implementation of the Presidential Memorandum. Both the State of Washington and the Plaintiffs filed motions opposing the stay on November 9.^[13][14] The motion to stay was denied on November 11.^[15]

Preliminary injunction

Not only did the DoD previously conclude that allowing transgender individuals to serve openly would not impact military effectiveness and readiness, the working group tasked to evaluate the issue also concluded that prohibiting open service would have negative impacts including loss of qualified personnel, erosion of unit cohesion, and erosion of trust in command.
 [...] The Court concludes that the policy set forth in the Presidential Memorandum constitutes [a governmental intrusion upon a fundamental liberty interest]. The policy directly interferes with Plaintiffs’ ability to define and express their gender identity, and penalizes Plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.
 [...] The policy penalizes transgender service members—but not others—for disclosing their gender identity, and is therefore a content-based restriction. Even giving the government the benefit of a more deferential standard of review under Brown, 444 U.S. at 355,^[16] the policy does not survive.

— Judge Marsha J. Pechman, Order, Case 17-cv-01297-MJP (December 11, 2017)^{[17]:16;19–20}

On December 11, 2017, Judge Marsha J. Pechman issued a preliminary injunction blocking the Presidential Memorandum of August 25,^[18] stating the "Defendants have failed to demonstrate that the policy prohibiting transgender individuals from serving openly is substantially related to important government interests" and "the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation. (See Dkt. No. 30 at ¶¶ 172-184.)^[6]:26–28 The policy is therefore not entitled to Rostker deference," referring to Rostker v. Goldberg, 453 U.S. 57 (1981). The Order granted in part the Defendants' motion to dismiss as the Plaintiffs' Amended Complaint had not properly plead the procedural due process claim, but the Order also denied the other claims in the motion to dismiss and granted the motion for preliminary injunction in full.^{[17]:18–20;22–23}

Appeals

On December 14, 2017, USDOJ filed a notice declaring its intent to appeal the preliminary injunction.^[19] A Motion for Clarification and partial stay was filed the next day asking the same questions as the motion for emergency stay with the 9th Circuit.^[20] Both the plaintiffs and State of Washington filed opposition briefs to the Motion for Clarification on December 27, 2017.^[21][22] Judge Pechman rejected the appeal on December 29, writing that "Secretary Mattis does not have authority to effectuate an unconstitutional policy, and certainly not one which has been enjoined" and "Defendants have provided no evidence that the accessions criteria for transgender enlistees are any more complex or burdensome than the criteria for non-transgender enlistees."^[23]:4–5

Meanwhile, USDOJ also filed a motion for an emergency stay with the 9th Circuit on December 15, 2017.^[24] In the motion, USDOJ made similar arguments as those filed earlier in December before the 4th Circuit (in Stone v. Trump) and D.C. Circuit (in Jane Doe v. Trump), namely either that Secretary Mattis could exercise his independent authority to implement a further delay on accession of transgender candidates, or that the injunction could be narrowly restricted to allow the accession only of the Plaintiffs found to have standing.^[24]:2–3 The Plaintiffs and the State of Washington filed opposing motions on December 19, 2017, stating "the constitutional defects in the accession ban cannot be cured by merely having another government official re-authorize its extension, even if acting on a supposedly independent basis"^[25]:2 and noting that "[t]hough the first ruling was over six weeks ago, Defendants waited until late last week to seek an emergency stay. In the meantime, Defendants issued detailed guidance to the military on how to comply with the court rulings, guidance that will come as no surprise given that the military has been preparing to allow accession of transgender individuals for 18 months."^[26]:1 In the reply to support the motion to dismiss filed on December 20, USDOJ argued that "Plaintiffs cannot plausibly characterize as irrational the current accession policy—a rule that, until 2016, was upheld by military leadership under every president for decades. The mere fact that this policy was revised by former-Secretary Carter cannot foreclose Secretary Mattis and President Trump from reconsidering its validity."^[27]:19 The day after Judge Pechman rejected the motion for clarification, USDOJ applied to withdraw their appeal with the 9th Circuit,^[28] which was granted.^[29]

Summary judgment

On January 25, 2018, the Plaintiffs moved for summary judgment, arguing that "this Court concluded that the Ban was unsupported by any adequate justification; indeed, it also found that the proffered justifications were contradicted by the extant evidence, including the military’s own comprehensive review. Defendants cannot rectify this deficiency with post hoc factual support that could not have actually motivated President Trump’s decision because it did not exist when the decision was made. Instead, the Ban must be measured against the state of affairs that existed on July 26, 2017—and this Court has already confirmed that the Ban fails any level of constitutional scrutiny when examined against that record."^[30]:1 The State of Washington also filed a motion for summary judgment, noting "Defendants have simply presented no evidence whatsoever that military readiness and unit cohesion are actually put at risk by open service by transgender service members" and "the challenged policy undermines the important governmental interest purportedly served by the discriminatory policy."^[31]:9–10

In their reply, USDOJ challenged the motion for summary judgment as the discovery process for the declarants in support of the motion were scheduled for mid-to-late March, saying the "lack of a fair opportunity to test these asserted facts [the "Statement of Undisputed Fact" in the original motion] will necessarily hinter Defendants' efforts to oppose Plaintiffs' and intervenor's summary judgment motions."^[32]:3–5 The Plaintiffs noted that USDOJ had "significant advance notice" prior to the filing of the motion for summary judgment, but "Defendants took no steps to obtain any discovery whatsoever in the two months before their opposition deadline."^[33]:3 The State of Washington, as the Intervenor, wrote "the Rule 56(d) request appears to be a strategy to buy time until defendants can finalize and produce the new "study" that they hope will provide the missing support for the Ban."^[34]:5 On February 21, Judge Pechman denied the USDOJ motion to continue the motion for summary judgment, and ordered USDOJ to file any opposition to the motion for summary judgment within seven days.^[35]

The next day, the Plaintiffs filed a motion to compel initial disclosures from the Defendants, asking the Court to force the Defendants to identify the individuals, documents, and information that would be used to support their defense.^[36]