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On June 14, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Karnoski v. Trump, one of the cases challenging the Trump administration’s ban on military service by transgender individuals. In a per curiam opinion, the three-judge 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, keeping with the Supreme Court’s grant of a stay in January; and (3) issued a writ of mandamus vacating the district court’s discovery order and directing the district court to reconsider the government’s assertions of presidential communications privilege and deliberative process privilege.
Significantly, the court concluded both that “a presumption of deference is owed [to the government], because the 2018 Policy appears to have been the product of independent military judgment,” and that the policy facially discriminates on the basis of transgender status and is properly subject to heightened scrutiny. This means that the government bears the burden on remand “of establishing that they reasonably determined the policy ‘significantly furthers’ the government’s important interests.”
Prior Lawfare coverage of the litigation can be found here.
The plaintiffs in Karnoski include nine individuals, three organizations, and, as an intervenor, the state of Washington. They allege that the Trump administration’s policy discriminates against transgender people 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. In December 2017, Judge Marsha Pechman of the U.S. District Court for the Western District of Washington granted plaintiffs’ request for a preliminary injunction, preventing implementation of the August 2017 presidential memorandum issuing the policy.
In March 2018, the White House withdrew the August 2017 memorandum and issued a new one, along with a report prepared in the preceding months by the Defense Department recommending revisions to the ban. The 2018 memorandum adopted then-Secretary of Defense James Mattis’s recommendations that:
- Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under the following limited circumstances (1) if they have been stable for 36 consecutive months in their biological sex prior to accession; (2) Service members diagnosed with gender dysphoria after entering into service may be retained if they do not require a change of gender and remain deployable within applicable retention standards; and (3) currently serving Service members who have been diagnosed with gender dysphoria since the previous administration’s policy took effect and prior to the effective date of this new policy, may continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria.
- Transgender persons who require or have undergone gender transition are disqualified from military service.
- Transgender persons without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, may serve, like all other Service members, in their biological sex.
Simultaneously, the government moved for summary judgment and to dissolve the preliminary injunction in Karnoski, on the grounds that the revised policy supplanted the 2017 memorandum and mooted the plaintiffs’ challenge.
In April 2018, Judge Pechman struck the motion to dissolve, finding that “that the 2018 Memorandum and the Implementation Plan do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place.” She also concluded that transgender individuals constitute a suspect class and that the administration’s policy should be subject to the most exacting standard of scrutiny; denied summary judgment as to the level of deference due to the defense department’s conclusions about transgender service reflected in its report; denied plaintiffs’ request for summary judgment on their equal protection, due process, and First Amendment claims; and granted the government’s motion for partial summary judgment exempting the president from injunctive relief.
In July 2018, Judge Pechman granted plaintiffs’ motion to compel discovery related to the administration’s rationale for and implementation of the ban, rejecting the government’s request for a protective order and broad assertions of executive privilege over relevant material. The court found that the deliberative process privilege should be narrowly construed; that the government did not meet its burden of establishing its applicability; and that the requested evidence concerning deliberations over the policy was not otherwise available to plaintiffs because it was in the sole possession of the administration. Accordingly, Judge Pechman directed the government to produce revised privilege logs within 10 days.
The government appealed and the Ninth Circuit heard oral argument in October 2018. In November, the government sought expedited consideration of Karnoski and the companion cases in the Supreme Court, seeking certiorari before judgment in the courts of appeals or at least a stay of the preliminary injunctions pending ultimate determination on the merits. The Supreme Court granted the stay in January 2019 and the ban went into effect on April 12.
Heightened Scrutiny and Presumption of Deference
In the June 14 ruling, the Ninth Circuit panel, unlike the D.C. Circuit, did not vacate the preliminary injunction but rather remanded the case to the district court for reconsideration of the government’s motion to dissolve the preliminary injunction. The panel concluded that Judge Pechman erred in striking the motion to dissolve and viewing the 2018 policy as functionally identical to the original ban. The court wrote that “[d]efendants have made the requisite threshold showing of a significant change in facts. … [R]egardless of its overall effect, the 2018 Policy is significantly different from the 2017 Memorandum in both its creation and its specific provisions.” The court considered it significant that Mattis conducted a new review of the policy with senior defense officials and included a reliance exception for transgender service members who began serving openly at the end of the Obama administration. Notably, however, the court found specious and rejected the government’s argument that “the policy does not preclude service by all transgender persons because there exists a subset of transgender persons who do not have a history or diagnosis of gender dysphoria, do not wish to transition, and do not wish to live or serve in their gender identity. Even assuming that subset exists, the policy indisputably bars many transgender persons from military service.”
The panel tasked the district court with reconsidering on remand the “level of constitutional scrutiny applicable to the equal protection or substantive due process rights of transgender persons and also the deference due to military decisionmaking.” The district court, the Ninth Circuit said, “reasonably applied the factors ordinarily used to determine whether a classification affects a suspect or quasi-suspect class” in assessing the appropriate level of scrutiny for a policy that “on its face treats transgender persons differently than other persons” but erred in determining that strict scrutiny was the appropriate standard. Rather, “in light of the analysis in [United States v. Virginia] and [Witt v. Department of the Air Force], the district court should apply a standard of review that is more than rational basis but less than strict scrutiny,” that is, heightened scrutiny.
Turning to the question of deference, the panel wrote that “the current record does not bear out the contention that the 2018 Policy was nothing more than an implementation of the 2017 Memorandum, or that the review that produced the 2018 Policy was limited to this purpose,” given that Secretary Mattis “directed the panel not only to develop an implementation plan but also to ‘bring a comprehensive, holistic, and objective approach to study military service by transgender individuals.’” Accordingly, the district court owes a presumption of deference to “independent military judgment.”
Discovery Order and Executive Privilege
Granting the government’s petition for a writ of mandamus vacating the district court’s discovery order, the Ninth Circuit concluded that the litigation implicates both the presidential communications privilege—which protects in their entirety “documents reflecting ‘presidential decisionmaking and deliberations,’ regardless of whether the documents are predecisional or not”—and the deliberative process privilege—which protects only the privileged portions of “‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Because “Plaintiffs raise non-frivolous arguments that the 2018 Policy did not independently analyze the impact of transgender individuals serving in the armed services, but rather implemented the 2017 Memorandum … the litigation may require the district court to consider the basis of the President’s initial decision, as well as the 2018 Policy.”
With regard to presidential communications privilege, the Ninth Circuit, citing the Supreme Court’s decision in Cheney v. U.S. District Court for the District of Columbia, wrote that the district court erred in ruling that “the President had to assert the presidential communications privilege to the specific documents covered by Plaintiffs’ discovery requests before Defendants could lodge a separation-of-powers objection.” Even though the government’s “tactics in opposing discovery may have been unhelpful, they did not absolve the district court from ‘explor[ing] other avenues, short of forcing the Executive to invoke privilege.’” The initial burden in the discovery fight is not on the government; rather, plaintiffs must more narrowly tailor their discovery requests and “make a preliminary showing of need demonstrating ‘that the evidence sought [is] directly relevant to issues that are expected to be central to the trial’ and ‘is not available with due diligence elsewhere.’” If the plaintiffs meet their burden, “the President must be given the opportunity to invoke the privilege formally and make particularized objections to ‘show that the interest in secrecy or nondisclosure outweighs the need’ for responsive materials … and the district court must conduct in camera review before any materials are turned over to Plaintiffs to excise non-relevant material and ‘ensure that presidential confidentiality is not unnecessarily breached.’” The district court, the panel said, must “give due deference to the presidential communications privilege, but also recognize that it is not absolute.”
The Ninth Circuit also called on the district court to redo its analysis of deliberative process privilege in accordance with FTC v. Warner Communications Inc., which requires a balancing of four factors to determine whether a party may obtain deliberative process material from the government: “1) the relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” The second and third criteria favor the plaintiffs, but the “existing record is not adequate to evaluate the relevance of all of the requested information, at least in terms of balancing production of materials against the military’s countervailing confidentiality interest” and further discovery as to relevance may be necessary. Additionally, “the fourth factor deserves careful consideration, because the military’s interest in full and frank communication about policymaking raises serious—although not insurmountable—national defense interests.” The district court should, in the panel’s view, consider different categories of requested deliberative process documents separately rather than all together, and be mindful that “[d]ocuments involving the most senior executive branch officials, for example, may require greater deference. (They may, of course, also be the most relevant.)”
Concluding, the panel commented that while, in its view, the “district court did not adequately consider the weighty issues implicated by Plaintiffs’ discovery requests,” the government’s “responses to those requests may not have helped the district court in performing its difficult task.” Going forward, the court expected “that the parties will provide the district court with the information and arguments it needs to balance the significant interests at play under the tests we have discussed above.”
The case now returns to the district court for reconsideration of the government’s motion to dissolve the preliminary injunction, which is stayed pending final resolution of the motion. However, following the Supreme Court’s issuance of a stay in January, the plaintiffs indicated they would not oppose vacatur of the preliminary injunction and transition to the merits phase of the litigation. If this is still the case, the parties may bypass final resolution of the validity of the preliminary injunction and proceed to trial. Also ahead are further negotiations over discovery and likely-inevitable disputes over the applicability of presidential communications privilege and deliberative process privilege to plaintiffs’ requested documents.