Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 1 of 46
CASREF,STAYED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:17−cv−02459−GLR

Stone et al v. Trump et al

Date Filed: 08/28/2017

Assigned to: Judge George Levi Russell, III

Jury Demand: None

Referred to: Magistrate Judge A. David Copperthite

Nature of Suit: 440 Civil Rights: Other

Case in other court: Fourth Circuit Court of Appeals, 17−02398 Jurisdiction: U.S. Government Defendant

Cause: 28:1331 Federal Question: Other Civil Rights

Plaintiff

Brock Stone Petty Officer First Class

represented by Deborah A Jeon American Civil Liberties Union of Maryland Foundation 3600 Clipper Mill Rd Ste 350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: jeon@aclu−md.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marianne F Kies Covington and Burling LLP One CityCenter 850 Tenth St NW Washington, DC 20001 2026625005 Fax: 2027785005 Email: mkies@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Augustus Golden Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625742 Fax: 2027785742 Email: agolden@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Carolyn Frances Corwin Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625338 Fax: 2027785338 Email: ccorwin@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Chase Strangio American Civil Liberties Union 125 Broad St. 18th Fl. New York, NY 10004 2122847320 Fax: 2125492650 Email: cstrangio@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

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Christopher Justin Hanson Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625977 Fax: 2027785977 Email: chanson@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah ACLU of Maryland 3600 Clipper Mill Rd, #350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: rocah@aclu−md.org ATTORNEY TO BE NOTICED
David Meir Zionts Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625987 Fax: 2027785987 Email: dzionts@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jaclyn Elysse Martinez Resly Covington and Burling LLP 850 Tenth St NW Washington, DC 20001 2026625528 Fax: 2027785528 Email: jmartinezresly@cov.com TERMINATED: 02/28/2019 PRO HAC VICE
James Esseks American Civil Liberties Union 125 Broad St. 18th Fl. New York, NY 10004 2125492623 Fax: 2125492650 Email: JEsseks@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Todd Bozman Covington and Burling LLp 850 Tenth St. NW Washington, DC 20001 2026625829 Fax: 2027785829 Email: jbozman@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Huberman Covington and Burling LLP 850 10th St. NW Washington, DC 20001 2026625166

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Fax: 2026626291 Email: jhuberman@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Block American Civil Liberties Union 125 Broad St. 18th Fl. New York, NY 10004 2125492593 Fax: 2125492650 Email: jblock@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Roselman Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625572 Fax: 2027785572 Email: jroselman@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper American Civil Liberties Union 125 Broad St. 18th Fl. New York, NY 10004 2125492584 Fax: 2125492650 Email: LCOOPER@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mark E Andrews−Lee Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625359 Fax: 2027785359 Email: MAndrewsLee@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Henry Lynch Covington and Burling 850 St NW One CityCenter Washington, DC 20001 2026625544 Fax: 2026626291 Email: mlynch@cov.com ATTORNEY TO BE NOTICED
Mitchell Kamin Covington and Burling LLP 1999 Avenue of the Stars Los Angeles, CA 90067 4243324759 Fax: 4243324749 Email: mkamin@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

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Nicholas Monroe Lampros Covington and Burling LLP 1999 Avenue of the Stars Ste. 3500 Los Angeles, CA 90067 4243324755 Fax: 4243324749 Email: nlampros@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III Covington & Burling LLP One City Center 850 Tenth St NW Washington, DC 20001 202−662−5780 Fax: 202−778−5780 Email: pkomorowski@cov.com ATTORNEY TO BE NOTICED

Rishi R Gupta Covington and Burling LLP 850 10th St. NW Washington, DC 20001 2026625879 Fax: 2027785005 Email: rrgupta@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Sara Sunderland Covington and Burling LLP One Front Street San Francisco, CA 94111 4155917004 Fax: 4159556504 Email: ssunderland@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Ian Plotkin Covington and Burling LLP 850 Tenth St. NW Washington, DC 20001 2026625318 Fax: 2027785318 Email: tplotkin@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Kate Cole Staff Sergeant

represented by Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Augustus Golden (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED
Carolyn Frances Corwin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Justin Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
David Meir Zionts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jaclyn Elysse Martinez Resly (See above for address) TERMINATED: 02/28/2019 PRO HAC VICE
James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Todd Bozman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Roselman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark E Andrews−Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff
John Doe 1 Staff Sergeant

Mark Henry Lynch (See above for address) ATTORNEY TO BE NOTICED
Mitchell Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Monroe Lampros (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED
Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Sunderland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Ian Plotkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Augustus Golden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carolyn Frances Corwin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Justin Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
David Meir Zionts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jaclyn Elysse Martinez Resly (See above for address) TERMINATED: 02/28/2019 PRO HAC VICE
James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Todd Bozman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Roselman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark E Andrews−Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Henry Lynch (See above for address) ATTORNEY TO BE NOTICED
Mitchell Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Monroe Lampros (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter John Komorowski , III

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 8 of 46

(See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sara Sunderland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Ian Plotkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Seven Ero George Airman First Class

represented by Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Augustus Golden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Carolyn Frances Corwin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Justin Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

David Meir Zionts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jaclyn Elysse Martinez Resly (See above for address) TERMINATED: 02/28/2019 PRO HAC VICE

James Esseks

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 9 of 46
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Todd Bozman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Roselman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark E Andrews−Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Henry Lynch (See above for address) ATTORNEY TO BE NOTICED
Mitchell Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Monroe Lampros (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED
Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Sunderland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Ian Plotkin (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED

Plaintiff
Teagan Gilbert Petty Officer First Class

represented by Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Augustus Golden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Carolyn Frances Corwin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Justin Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

David Meir Zionts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jaclyn Elysse Martinez Resly (See above for address) TERMINATED: 02/28/2019 PRO HAC VICE

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey Todd Bozman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua Block (See above for address)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 11 of 46

PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua D Roselman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mark E Andrews−Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) ATTORNEY TO BE NOTICED

Mitchell Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nicholas Monroe Lampros (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sara Sunderland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Ian Plotkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Tommie Parker Technical Sergeant

represented by Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Augustus Golden (See above for address)

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PRO HAC VICE ATTORNEY TO BE NOTICED
Carolyn Frances Corwin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Justin Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
David Meir Zionts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jaclyn Elysse Martinez Resly (See above for address) TERMINATED: 02/28/2019 PRO HAC VICE
James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Todd Bozman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Roselman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark E Andrews−Lee (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED

Mark Henry Lynch (See above for address) ATTORNEY TO BE NOTICED

Mitchell Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nicholas Monroe Lampros (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sara Sunderland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Ian Plotkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Teddy D'Atri

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ryan Wood

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Niko Branco

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff John Doe 2

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Roe 1

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III

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(See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
John Doe 3 by his next friends and mother and father

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Roe 2

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff John Doe 4

represented by Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED

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Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union of Maryland, Inc.

represented by Deborah A Jeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marianne F Kies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Augustus Golden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Carolyn Frances Corwin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Justin Hanson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

David Meir Zionts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jaclyn Elysse Martinez Resly (See above for address) TERMINATED: 02/28/2019 PRO HAC VICE ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey Todd Bozman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey Huberman (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED
Joshua Block (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua D Roselman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark E Andrews−Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Henry Lynch (See above for address) ATTORNEY TO BE NOTICED
Mitchell Kamin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Monroe Lampros (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter John Komorowski , III (See above for address) ATTORNEY TO BE NOTICED
Rishi R Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sara Sunderland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Ian Plotkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his official capacity as President of the United States

represented by Ashley A Cheung U.S. Department Of Justice 1100 L St. NW Washington, DC 20005 2026168267 Email: ashley.cheung@usdoj.gov

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TERMINATED: 10/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney D Enlow U.S. Department Of Justice 1100 L Street, NW Room 12102 Washington, DC 20005 2026168467 Fax: 2026168470 Email: courtney.d.enlow@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi 1100 L St. NW Rm. 12212 Washington, DC 20530 2026160680 Fax: 2026168470 Email: michael.j.gerardi@usdoj.gov ATTORNEY TO BE NOTICED

Ryan Bradley Parker United States Department Of Justice Civil Division 20 Mass Ave. NW Washington, DC 20001 2025144336 Fax: 2026168202 Email: ryan.parker@usdoj.gov TERMINATED: 06/08/2018

Defendant
Mark Esper in his official capacity as Secretary of Defense

represented by Courtney D Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ryan McCarthy in his official capacity as Secretary of the U.S. Department of the Army

represented by Ashley A Cheung (See above for address) TERMINATED: 10/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney D Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi (See above for address) ATTORNEY TO BE NOTICED

Ryan Bradley Parker (See above for address)

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TERMINATED: 06/08/2018

Defendant
Richard Spencer in his official capacity as Secretary of the U.S. Department of the Navy

represented by Ashley A Cheung (See above for address) TERMINATED: 10/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney D Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi (See above for address) ATTORNEY TO BE NOTICED

Ryan Bradley Parker (See above for address) TERMINATED: 06/08/2018

Defendant
Barbara Barrett in her official capacity as Secretary of the U.S. Department of the Air Force

represented by Ashley A Cheung (See above for address) TERMINATED: 10/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney D Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi (See above for address) ATTORNEY TO BE NOTICED

Ryan Bradley Parker (See above for address) TERMINATED: 06/08/2018

Defendant
Kevin McAleenan in his official capacity as Acting Secretary of Homeland Security

represented by Ashley A Cheung (See above for address) TERMINATED: 10/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney D Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi (See above for address) ATTORNEY TO BE NOTICED

Ryan Bradley Parker (See above for address)

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TERMINATED: 06/08/2018

Defendant
Karl Schultz in his official capacity as Commandant of the U.S. Coast Guard

represented by Ashley A Cheung (See above for address) TERMINATED: 10/18/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney D Enlow (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Gerardi (See above for address) ATTORNEY TO BE NOTICED

Ryan Bradley Parker (See above for address) TERMINATED: 06/08/2018

Amicus
Commonwealth of Massachusetts, Commonwealth of Massachusetts

represented by Sara A Colb Office of the Attorney General Civil Rights Division One Ashburton Place Boston, MA 02108 617−963−2031 Email: Sara.Colb@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Retired Military Officers and Former National Security Officials

represented by Phillip Michael Spector Messing & Spector LLP 1200 Steuart Street #2112 Baltimore, MD 21230 2022778173 Email: ps@messingspector.com ATTORNEY TO BE NOTICED

Amicus Trevor Project

represented by Jeffrey Saul Rosenberg Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. 3rd Floor Washington, DC 20036 202−955−8297 Email: jsrosenberg@gibsondunn.com ATTORNEY TO BE NOTICED

Date Filed 08/28/2017

# Docket Text
1 COMPLAINT against Donald J. Trump , James Mattis , Ryan McCarthy, Richard Spencer, Heather Wilson ( Filing fee $ 400 receipt number 0416−6854041.), filed by John Doe, Kate Cole, Brock Stone, American Civil Liberties Union of Maryland, Inc., Seven Ero George, Teagan Gilbert, Tommie Parker. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Kies, Marianne) (Entered:

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08/28/2017 08/28/2017 08/28/2017 08/28/2017 08/28/2017 08/28/2017 08/28/2017
08/28/2017
08/28/2017 08/28/2017 08/28/2017 08/28/2017 08/29/2017

08/28/2017)
2 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 1 Complaint, Summons to Defendant Trump (Kies, Marianne) (Entered: 08/28/2017)
3 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 1 Complaint, Summons to Defendant Mattis (Kies, Marianne) (Entered: 08/28/2017)
4 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 1 Complaint, Summons to Defendant McCarthy (Kies, Marianne) (Entered: 08/28/2017)
5 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 1 Complaint, Summons to Defendant Spencer (Kies, Marianne) (Entered: 08/28/2017)
6 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 1 Complaint, Summons to Defendant Wilson (Kies, Marianne) (Entered: 08/28/2017)
7 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 1 Complaint, Summonses to Attorney General and U.S. Attorney (Attachments: # 1 Supplement)(Kies, Marianne) (Entered: 08/28/2017)
8 MOTION for Other Relief Motion for Permission for Plaintiff John Doe to Proceed Under Pseudonym, and Motion to Omit Individual Plaintiffs' Home Addresses from Caption by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Memorandum ISO Motion, # 3 Affidavit Strangio Decl., # 4 Exhibit Ex. A to Strangio Decl., # 5 Exhibit Ex. B to Strangio Decl., # 6 Exhibit Ex. C to Strangio Decl., # 7 Exhibit Notice of Filing of Document Under Seal, # 8 Affidavit Stone Decl., # 9 Affidavit George Decl., # 10 Affidavit Gilbert Decl., # 11 Affidavit Parker Decl., # 12 Affidavit Cole Decl.)(Kies, Marianne) (Entered: 08/28/2017)
9 −SEALED − NOTICE of Filing Under Seal Declaration of John Doe by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 8 MOTION for Other Relief Motion for Permission for Plaintiff John Doe to Proceed Under Pseudonym, and Motion to Omit Individual Plaintiffs' Home Addresses from Caption (Kies, Marianne) (Entered: 08/28/2017)
10 MOTION to Seal Declaration of John Doe by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 08/28/2017)
11 MOTION to Appear Pro Hac Vice for David M. Zionts (Filing fee $100, receipt number 0416−6854875.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 08/28/2017)
12 MOTION to Appear Pro Hac Vice for Carolyn F. Corwin (Filing fee $100, receipt number 0416−6854881.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 08/28/2017)
13 Summons Issued 60 days as to James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(kw2s, Deputy Clerk) (Entered: 08/28/2017)
14 MOTION to Appear Pro Hac Vice for Mitchell A. Kamin (Filing fee $100, receipt number 0416−6857699.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 22 of 46

08/29/2017 08/29/2017 08/29/2017 08/29/2017 09/01/2017 09/01/2017 09/01/2017 09/01/2017 09/01/2017 09/01/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017

Stone(Kies, Marianne) (Entered: 08/29/2017)
15 MOTION to Appear Pro Hac Vice for Christopher J. Hanson (Filing fee $100, receipt number 0416−6857720.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 08/29/2017)
16 MOTION to Appear Pro Hac Vice for Jaclyn E. Martinez Resly (Filing fee $100, receipt number 0416−6857726.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 08/29/2017)
17 MOTION to Appear Pro Hac Vice for Jeffrey Todd Bozman (Filing fee $100, receipt number 0416−6857735.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 08/29/2017)
18 MOTION to Appear Pro Hac Vice for Tom Plotkin (Filing fee $100, receipt number 0416−6857753.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 08/29/2017)
19 MOTION to Appear Pro Hac Vice for Nicholas M. Lampros (Filing fee $100, receipt number 0416−6864318.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 09/01/2017)
20 NOTICE of Appearance by David Robert Rocah on behalf of All Plaintiffs (Rocah, David) (Entered: 09/01/2017)
21 MOTION to Appear Pro Hac Vice for Chase Strangio (Filing fee $100, receipt number 0416−6866493.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Rocah, David) (Entered: 09/01/2017)
22 MOTION to Appear Pro Hac Vice for James Esseks (Filing fee $100, receipt number 0416−6866557.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Rocah, David) (Entered: 09/01/2017)
23 MOTION to Appear Pro Hac Vice for Joshua Block (Filing fee $100, receipt number 0416−6866569.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Rocah, David) (Entered: 09/01/2017)
24 MOTION to Appear Pro Hac Vice for Leslie Cooper (Filing fee $100, receipt number 0416−6866581.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Rocah, David) (Entered: 09/01/2017)
25 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of David Zionts. Directing attorney David Zionts to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
26 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of Carolyn Corwin. Directing attorney Carolyn Corwin to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
27 PAPERLESS ORDER granting 14 Motion to Appear Pro Hac Vice on behalf of Mitchell Kamin. Directing attorney Mitchell Kamin to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
28 PAPERLESS ORDER granting 15 Motion to Appear Pro Hac Vice on behalf of Christopher J Hanson. Directing attorney Christopher J Hanson to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 23 of 46

09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/08/2017 09/11/2017 09/14/2017 09/14/2017

by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
29 PAPERLESS ORDER granting 16 Motion to Appear Pro Hac Vice on behalf of Jaclyn Elysse Martinez Resly. Attorney Jaclyn Elysse Martinez Resly will receive a separate email with the previously issued CM/ECF login and password. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
30 PAPERLESS ORDER granting 17 Motion to Appear Pro Hac Vice on behalf of Jeffrey Bozman. Directing attorney Jeffrey Bozman to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
31 PAPERLESS ORDER granting 18 Motion to Appear Pro Hac Vice on behalf of Tom Plotkin. Directing attorney Tom Plotkin to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
32 PAPERLESS ORDER granting 19 Motion to Appear Pro Hac Vice on behalf of Nicholas Lampros. Directing attorney Nicholas Lampros to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
33 PAPERLESS ORDER granting 21 Motion to Appear Pro Hac Vice on behalf of Chase Strangio. Directing attorney Chase Strangio to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
34 PAPERLESS ORDER granting 22 Motion to Appear Pro Hac Vice on behalf of James Esseks. Directing attorney James Esseks to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
35 PAPERLESS ORDER granting 23 Motion to Appear Pro Hac Vice on behalf of Joshua Block. Directing attorney Joshua Block to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
36 PAPERLESS ORDER granting 24 Motion to Appear Pro Hac Vice on behalf of Leslie Cooper. Directing attorney Leslie Cooper to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 9/5/2017. (srd, Deputy Clerk) (Entered: 09/05/2017)
37 Local Rule 103.3 Disclosure Statement by American Civil Liberties Union of Maryland, Inc. (Kies, Marianne) (Entered: 09/08/2017)
38 ORDER granting 10 MOTION to Seal Declaration of John Doe. Signed by Judge Marvin J. Garbis on 9/11/2017. (kw2s, Deputy Clerk) (Entered: 09/12/2017)
39 AMENDED COMPLAINT against All Defendants, filed by John Doe, Kate Cole, Brock Stone, American Civil Liberties Union of Maryland, Inc., Seven Ero George, Teagan Gilbert, Tommie Parker. (Attachments: # 1 Exhibit Identification of Amendments)(Kies, Marianne) (Entered: 09/14/2017)
40 MOTION for Preliminary Injunction by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Memorandum ISO Motion, # 3 Affidavit Declaration of Marianne F. Kies, # 4 Exhibit 1 to Kies Decl., # 5 Exhibit 2 to Kies Decl., # 6 Exhibit 3 to Kies Decl., # 7 Exhibit 4 to Kies Decl., # 8 Exhibit 5 to Kies Decl., # 9 Exhibit 6 to Kies Decl., # 10 Exhibit 7 to Kies Decl., # 11 Exhibit 8 to Kies Decl., # 12 Exhibit 9 to Kies Decl., # 13 Exhibit 10 to Kies Decl., # 14 Exhibit 11 to Kies Decl., # 15 Exhibit 12 to Kies Decl., # 16 Exhibit 13 to Kies Decl., # 17 Exhibit 14 to Kies Decl., # 18 Exhibit 15 to Kies Decl., # 19 Exhibit 16 to Kies Decl., # 20 Exhibit 17 to Kies Decl., # 21 Exhibit 18 to Kies Decl., # 22 Exhibit 19 to Kies Decl., # 23 Exhibit 20 to Kies Decl., # 24 Exhibit 21 to Kies Decl., # 25 Exhibit 22 to Kies Decl., # 26 Exhibit 23 to Kies Decl., # 27 Exhibit 24 to Kies Decl., # 28 Exhibit 25 to Kies Decl., # 29 Exhibit 26 to Kies Decl., # 30 Exhibit 27 to Kies Decl., # 31 Exhibit 28 to Kies Decl., # 32 Affidavit Expert Declaration of George R. Brown, # 33 Exhibit A to Brown Decl., # 34 Exhibit B to Brown Decl., # 35 Exhibit C

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 24 of 46

09/14/2017 09/14/2017 09/15/2017 09/21/2017 09/21/2017
09/21/2017 09/22/2017 09/27/2017 09/27/2017 09/29/2017
10/02/2017 10/02/2017 10/12/2017

to Brown Decl., # 36 Exhibit D to Brown Decl., # 37 Affidavit Expert Declaration of Brad R. Carson, # 38 Affidavit Expert Declaration of Margaret C. Wilmoth, # 39 Exhibit A to Wilmoth Decl., # 40 Affidavit Plaintiff Cole Decl., # 41 Supplement Notice of Filing Doe Decl. Under Seal, # 42 Affidavit Plaintiff George Decl., # 43 Affidavit Plaintiff Gilbert Decl., # 44 Affidavit Plaintiff Parker Decl., # 45 Affidavit Plaintiff Stone Decl.)(Kies, Marianne) (Entered: 09/14/2017)
41 −SEALED − NOTICE of Filing Under Seal Declaration of John Doe ISO Motion for Preliminary Injunction by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 40 MOTION for Preliminary Injunction (Kies, Marianne) (Entered: 09/14/2017)
42 MOTION to Seal (Unopposed) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 09/14/2017)
43 SUMMONS Returned Executed by John Doe, Kate Cole, Brock Stone, American Civil Liberties Union of Maryland, Inc., Seven Ero George, Teagan Gilbert, Tommie Parker. All Defendants. (Attachments: # 1 Supplement Service as to Acting U.S. Attorney (D. Md.))(Kies, Marianne) (Entered: 09/15/2017)
44 NOTICE of Appearance by Ryan Bradley Parker on behalf of All Defendants (Parker, Ryan) (Entered: 09/21/2017)
45 RESPONSE to Motion re 8 MOTION for Other Relief Motion for Permission for Plaintiff John Doe to Proceed Under Pseudonym, and Motion to Omit Individual Plaintiffs' Home Addresses from Caption filed by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson. (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 09/21/2017)
46 Consent MOTION for Extension of Time to Respond to Plaintiffs' Motion for a Preliminary Injunction and for Entry of a Breifing Schedule by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 09/21/2017)
47 ORDER granting Defendants' 46 Motion for Extension of Time to Respond to Plaintiffs' Motion for a Preliminary Injunction and for Entry of a Breifing Schedule. Signed by Judge Marvin J. Garbis on 9/22/2017. (dass, Deputy Clerk) (Entered: 09/22/2017)
Telephone Status Conference re: status and scheduling held on 9/27/2017 before Judge Marvin J. Garbis. (kw2s, Deputy Clerk) (Entered: 09/27/2017)
48 SCHEDULING ORDER. Signed by Judge Marvin J. Garbis on 9/27/2017. (kw2s, Deputy Clerk) (Entered: 09/27/2017)
49 Joint MOTION for Protective Order Regarding the Pseudonym Plaintiff's Identity and for Entry of Order Regarding Pending Motions Related to Plaintiffs' Privacy by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Stipulated Protective Order)(Kies, Marianne) (Entered: 09/29/2017)
50 ORDER granting 49 Joint MOTION for Protective Order Regarding the Pseudonym Plaintiff's Identity and for Entry of Order Regarding Pending Motions Related to Plaintiffs' Privacy. Signed by Judge Marvin J. Garbis on 9/29/2017. (kw2s, Deputy Clerk) (Entered: 10/02/2017)
51 ORDER granting 42 Motion to Seal. Signed by Judge Marvin J. Garbis on 10/2/2017. (kw2s, Deputy Clerk) (Entered: 10/02/2017)
52 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Memorandum of Points and Authorities, # 2 Johnson Declaration, # 3 Harris Declaration, # 4 Sileno Declaration, # 5 Text of Proposed Order)(Parker, Ryan) (Entered: 10/12/2017)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 25 of 46

10/12/2017 10/12/2017

53 −SEALED − NOTICE of Filing Under Seal Sealed Declarations in Support of Defendants' Motion to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson re 52 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration)(Parker, Ryan) (Entered: 10/12/2017)
54 Consent MOTION to Seal Declarations in Support of Defendants Motion to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson(Parker, Ryan) (Entered: 10/12/2017)

10/13/2017

55 ORDER GRANTING 54 Motion to Seal Declarations in Support of Defendants Motion to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction. Signed by Judge Marvin J. Garbis on 10/13/2017. (hmls, Deputy Clerk) (Entered: 10/13/2017)

10/17/2017 56 NOTICE of Appearance by Mark Henry Lynch on behalf of All Plaintiffs (Lynch, Mark) (Entered: 10/17/2017)

10/24/2017 10/24/2017 10/25/2017 10/25/2017

57 REDACTED DOCUMENT to 52 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction Redacted Declaration of Joey J. Johnson by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson(Parker, Ryan) (Entered: 10/24/2017)
58 REDACTED DOCUMENT to 52 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction Redacted Declaration of Kathleen P. Sileno by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson(Parker, Ryan) (Entered: 10/24/2017)
59 MOTION for Leave to File Amicus Brief by Trevor Project (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order)(Rosenberg, Jeffrey) (Entered: 10/25/2017)
60 NOTICE by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson of Filing Redacted Declarations and the Interim Guidance in Support of Defendants' Motion to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction (Attachments: # 1 Redacted Declaration of Matthew J. Vanderlugt, # 2 Redacted Declaration Faith K. Posey, # 3 Redacted Declaration of Collin Campbell, # 4 Redacted Declaration of Mark J. Brooks, # 5 Exhibit 1 − Interim Guidance)(Parker, Ryan) (Entered: 10/25/2017)

10/26/2017 61 ORDER granting 59 Motion for Leave to File Amicus Brief. Signed by Judge Marvin J. Garbis on 10/26/2017. (kw2s, Deputy Clerk) (Entered: 10/26/2017)

10/26/2017 62 Amicus Brief by Trevor Project (kw2s, Deputy Clerk) (Entered: 10/27/2017)

10/27/2017 10/27/2017
10/27/2017 10/27/2017

63 MOTION for Leave to File Amicus Brief by Commonwealth of Massachusetts, (Attachments: # 1 Exhibit Proposed Amicus Brief of Massachusetts et al, # 2 Text of Proposed Order Proposed Order)(Colb, Sara) (Entered: 10/27/2017)
64 (FILED IN ERROR) MOTION for Leave to File Amicus Curiae Brief by Retired Military Officers and Former National Security Officials (Attachments: # 1 Exhibit Brief of Retired Military Officers and Former National Security Officials as Amici Curiae in Support of Plaintiffs, # 2 Text of Proposed Order)(Spector, Phillip) Modified on 10/30/2017 (kw2s, Deputy Clerk). (Entered: 10/27/2017)
65 Corrected MOTION for Leave to File Amicus Curiae Brief by Retired Military Officers and Former National Security Officials (Attachments: # 1 Exhibit Corrected Brief of Retired Military Officers and Former National Security Officials as Amici Curiae, # 2 Text of Proposed Order)(Spector, Phillip) (Entered: 10/27/2017)
66 REPLY to Response to Motion re 40 MOTION for Preliminary Injunction & Opposition to Defendants' Motion to Dismiss (ECF No. 52) filed by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone. (Attachments: # 1 Affidavit Kies Declaration, # 2 Exhibit 29, # 3 Exhibit 30, # 4 Affidavit Eitelberg Declaration, # 5 Affidavit Fanning Declaration, # 6 Affidavit James Declaration, # 7 Affidavit Mabus Declaration, # 8

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 26 of 46

10/27/2017
10/27/2017 10/30/2017
10/30/2017 10/30/2017 10/30/2017 10/30/2017 10/31/2017
11/01/2017 11/02/2017
11/03/2017 11/07/2017 11/08/2017

Affidavit Suppl. Cole Declaration, # 9 Affidavit Suppl. George Declaration, # 10 Exhibit Exhibit to Suppl. George Declaration, # 11 Affidavit Suppl. Gilbert Declaration, # 12 Affidavit Suppl. Parker Declaration, # 13 Affidavit Suppl. Stone Declaration)(Kies, Marianne) Modified on 10/30/2017 (kw2s, Deputy Clerk). Modified on 10/30/2017 (kw2s, Deputy Clerk). (Entered: 10/27/2017)
67 −SEALED − NOTICE of Filing Under Seal Sealed Affidavits and Exhibit to Reply ISO Plaintiffs' Motion for Preliminary Injunction by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 66 Reply to Response to Motion,,, (Attachments: # 1 Exhibit to Suppl. George Declaration, # 2 Affidavit Suppl. Gilbert Declaration, # 3 Affidavit Suppl. Stone Declaration)(Kies, Marianne) (Entered: 10/27/2017)
68 Consent MOTION to Seal Supplemental Declarations and Exhibit to Declaration by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 10/27/2017)
69 (FILED IN ERROR BY CLERK)QC NOTICE: 66 Reply to Response to Motion,,, filed by John Doe, Commonwealth of Massachusetts,, Brock Stone, Kate Cole, Seven Ero George, Teagan Gilbert, Tommie Parker, American Civil Liberties Union of Maryland, Inc. was filed incorrectly. ***Please refile using the correct event under Responses and Replies−Response in Opposition to Motion. It has been noted as FILED IN ERROR, and the document link has been disabled. (kw2s, Deputy Clerk) Modified on 10/30/2017 (kw2s, Deputy Clerk). (Entered: 10/30/2017)
70 ORDER granting 65 Corrected MOTION for Leave to File Amicus Curiae Brief . Signed by Judge Marvin J. Garbis on 10/30/2017. (kw2s, Deputy Clerk) Modified on 10/30/2017 (kw2s, Deputy Clerk). (Entered: 10/30/2017)
71 Amicus Curiae Brief by Retired Military Officers and Former National Security Officials (kw2s, Deputy Clerk) (Entered: 10/30/2017)
72 ORDER granting 63 MOTION for Leave to File Amicus Brief. Signed by Judge Marvin J. Garbis on 10/30/2017. (kw2s, Deputy Clerk) (Entered: 10/30/2017)
73 Amicus Brief by Commonwealth of Massachusetts (kw2s, Deputy Clerk) (Entered: 10/30/2017)
74 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 66 Reply to Response to Motion,,, Supplemental Authority (Attachments: # 1 Exhibit 1 (Memorandum and Order))(Kies, Marianne) Modified on 11/2/2017 (kw2s, Deputy Clerk). (Entered: 10/31/2017)
75 NOTICE of Appearance by Peter John Komorowski, III on behalf of American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Komorowski, Peter) (Entered: 11/01/2017)
76 (FILED IN CLERKS EEROR)QC NOTICE: 74 Notice (Other), filed by John Doe, Kate Cole, Brock Stone, Teagan Gilbert, Seven Ero George, Tommie Parker, American Civil Liberties Union of Maryland, Inc. was filed incorrectly.***Please refile using the event under Responses and Replies − Response in Support of Motion AND Response in Opposition to Motion and link to the correct Motion. It has been noted as FILED IN ERROR, and the document link has been disabled. (kw2s, Deputy Clerk) Modified on 11/3/2017 (kw2s, Deputy Clerk). (Entered: 11/02/2017)
77 REPLY to Response to Motion re 52 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction filed by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson.(Parker, Ryan) (Entered: 11/03/2017)
78 RESPONSE re 74 Notice (Other), of Supplemental Authority filed by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson.(Parker, Ryan) (Entered: 11/07/2017)
79 ORDER advising that no person may possess or transport into Courtroom 5A any electronic devices, to include cellular telephones, cameras, recordingdevices of any

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 27 of 46

11/08/2017 11/09/2017 11/15/2017
11/15/2017 11/21/2017 11/21/2017 12/05/2017 12/05/2017 12/05/2017 12/05/2017 12/06/2017 12/12/2017 12/12/2017

type including "smart" watches and "smart" pens, and/or computers, to include laptops and tablets, without the express permission of the presiding judge. Signed by Judge Marvin J. Garbis on 11/8/2017. (kw2s, Deputy Clerk) (Entered: 11/08/2017)
80 Reply to 74 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone Reply ISO Notice of Supplemental Authority (ECF No. 74) (Kies, Marianne) Modified on 11/8/2017 (kw2s, Deputy Clerk). (Entered: 11/08/2017)
81 Motion Hearing held on 11/9/2017 re 40 MOTION for Preliminary Injunction filed by John Doe, Kate Cole, Brock Stone, Teagan Gilbert, Seven Ero George, Tommie Parker, American Civil Liberties Union of Maryland, Inc. before Judge Marvin J. Garbis.(Court Reporter: Douglas Zweizig) (mds, Deputy Clerk) (Entered: 11/09/2017)
82 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/9/2017, before Judge Garbis. Court Reporter/Transcriber Douglas J. Zweizig, RDR, CRR, Telephone number (410) 962−4474 − Douglas_Zweizig@mdd.uscourts.gov. Total number of pages filed: 82. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 12/6/2017. Redacted Transcript Deadline set for 12/18/2017. Release of Transcript Restriction set for 2/13/2018.(dz, Court Reporter) (Entered: 11/15/2017)
83 ORDER granting 68 Consent MOTION to Seal Supplemental Declarations and Exhibit to Declaration. Signed by Judge Marvin J. Garbis on 11/13/2017. (kw2s, Deputy Clerk) (Entered: 11/16/2017)
84 PRELIMINARY INJUNCTION. Signed by Judge Marvin J. Garbis on 11/21/2017. (kw2s, Deputy Clerk) (Entered: 11/21/2017)
85 MEMORANDUM AND ORDER granting 40 Motion for Preliminary Injunction; granting in part and denying in part 52 Motion to Dismiss. Signed by Judge Marvin J. Garbis on 11/21/2017. (kw2s, Deputy Clerk) (Entered: 11/21/2017)
86 NOTICE OF APPEAL as to 85 Memorandum and Order, Order on Motion for Preliminary Injunction, Order on Motion to Dismiss, 84 Preliminary Injunction by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson. (Parker, Ryan) (Entered: 12/05/2017)
87 MOTION for Extension of Time to File Answer by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 12/05/2017)
88 ORDER granting 87 Motion for Extension of Time to Answer James Mattis answer due 12/15/2017; Ryan McCarthy answer due 12/15/2017; Richard Spencer answer due 12/15/2017; Donald J. Trump answer due 12/15/2017; Heather Wilson answer due 12/15/2017. Signed by Judge Marvin J. Garbis on 12/5/2017. (kw2s, Deputy Clerk) (Entered: 12/05/2017)
89 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 86 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(slss, Deputy Clerk) (Entered: 12/05/2017)
90 USCA Case Number 17−2398 for 86 Notice of Appeal, filed by James Mattis, Heather Wilson, Richard Spencer, Donald J. Trump, Ryan McCarthy. Case Manager − Joy Hargett Moore (slss, Deputy Clerk) (Entered: 12/06/2017)
91 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Affidavit Lernes J. Hebert)(Parker, Ryan) (Entered: 12/12/2017)
92 Correspondence re: ECF No. 91 (Defendants' Motion for Clarification and Partial Stay of Preliminary Injunction) (Kies, Marianne) Modified on 12/13/2017 (kw2s, Deputy Clerk). (Entered: 12/12/2017)

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12/13/2017 12/13/2017

93 (FILED IN ERROR)QC NOTICE: 92 Miscellaneous Correspondence was filed incorrectly. ***Please refile using the event under Responses and Replies> Response in Opposition to Motion It has been noted as FILED IN ERROR, and the document link has been disabled. (kw2s, Deputy Clerk) Modified on 12/13/2017 (kw2s, Deputy Clerk). (Entered: 12/13/2017)
Telephone Status Conference held on 12/13/2017 before Judge Marvin J. Garbis. (kw2s, Deputy Clerk) (Entered: 12/13/2017)

12/14/2017 94 ORDER Confirmimg Conference. Signed by Judge Marvin J. Garbis on 12/13/2017. (kw2s, Deputy Clerk) (Entered: 12/14/2017)

12/15/2017

95 RESPONSE in Opposition re 91 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal filed by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone. (Attachments: # 1 Affidavit Marianne Kies Declaration, # 2 Exhibit 1 to Kies Decl., # 3 Exhibit 2 to Kies Decl., # 4 Exhibit 3 to Kies Decl., # 5 Exhibit 4 to Kies Decl., # 6 Exhibit 5 to Kies Decl., # 7 Exhibit 6 to Kies Decl., # 8 Affidavit George Brown Declaration, # 9 Affidavit Deborah James Declaration, # 10 Affidavit Raymond Mabus Declaration)(Kies, Marianne) (Entered: 12/15/2017)

12/15/2017 12/19/2017
12/20/2017 12/21/2017

96 ANSWER to 39 Amended Complaint, by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson.(Parker, Ryan) (Entered: 12/15/2017)
97 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone of Supplemental Authority (Attachments: # 1 Exhibit 1 DoD Memorandum)(Komorowski, Peter) (Entered: 12/19/2017)
98 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone JOINT Proposed Scheduling Order (Kies, Marianne) (Entered: 12/20/2017)
99 ORDER of USCA "Denying" motion for administrative stay and partial stay pending appeal as to 86 Notice of Appeal, filed by James Mattis, Heather Wilson, Richard Spencer, Donald J. Trump, Ryan McCarthy (slss, Deputy Clerk) (Entered: 12/21/2017)

12/27/2017 100 SCHEDULING ORDER. Signed by Judge Marvin J. Garbis on 12/27/2017. (kw2s, Deputy Clerk) (Entered: 12/27/2017)

12/28/2017 101 MEMORANDUM AND ORDER denying 91 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal. Signed by Judge Marvin J. Garbis on 12/28/2017. (kw2s, Deputy Clerk) (Entered: 12/28/2017)

01/09/2018 01/19/2018 01/22/2018 01/26/2018

102 STATUS REPORT (JOINT) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 01/09/2018)
103 MOTION to Appear Pro Hac Vice for Augustus Golden (Filing fee $100, receipt number 0416−7109792.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 01/19/2018)
104 PAPERLESS ORDER granting 103 Motion to Appear Pro Hac Vice on behalf of Augustus Golden. Directing attorney Augustus Golden to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 1/22/2018. (srd, Deputy Clerk) (Entered: 01/22/2018)
105 MOTION to Compel Initial Disclosures by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Memorandum ISO Motion, # 3 Affidavit Declaration of Mitchell Kamin, # 4 Exhibit 1 to Kamin Decl., # 5 Exhibit 2 to Kamin Decl., # 6 Exhibit 3 to Kamin Decl., # 7 Exhibit 4 to Kamin Decl.)(Komorowski, Peter) (Entered: 01/26/2018)

02/02/2018

106 ORDER of USCA "Granting" appellant's motion of voluntary dismissal of appeal with each side bearing its own costs as to 86 Notice of Appeal, filed by James Mattis, Heather Wilson, Richard Spencer, Donald J. Trump, Ryan McCarthy (slss, Deputy Clerk) (Entered: 02/02/2018)

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02/06/2018 02/06/2018

107 ORDER granting 105 MOTION to Compel Initial Disclosures. Signed by Judge Marvin J. Garbis on 2/6/2018. (kw2s, Deputy Clerk) (Entered: 02/07/2018)
Telephone Status Conference held on 2/6/2018 before Judge Marvin J. Garbis. (kw2s, Deputy Clerk) (Entered: 02/07/2018)

02/09/2018

108 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone JOINT Proposed Uniform Protective Order and Cross−Use Agreement (Attachments: # 1 Supplement Proposed 502(d) Order)(Kies, Marianne) (Entered: 02/09/2018)

02/12/2018

109 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 108 Notice (Other), Ex. A to Joint Proposed Uniform Protective Order and Cross−Use Agreement (Kies, Marianne) (Entered: 02/12/2018)

02/12/2018
02/14/2018
02/22/2018 02/23/2018

110 PROTECTIVE/CONFIDENTIALITY ORDER Approving terms and conditions of parties re: confidential information. Signed by Judge Marvin J. Garbis on 2/9/2018. (kw2s, Deputy Clerk) (Entered: 02/13/2018)
111 PROTECTIVE/CONFIDENTIALITY ORDER Approving terms and conditions of parties re: confidential information Signed by Judge Marvin J. Garbis on 2/9/2018. (kw2s, Deputy Clerk) (Entered: 02/14/2018)
112 Request for Conference (Kies, Marianne) (Entered: 02/22/2018)
113 RESPONSE re 112 Request for Conference filed by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson.(Parker, Ryan) (Entered: 02/23/2018)

02/24/2018

114 RESPONSE re 112 Request for Conference, 113 Response filed by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kies, Marianne) (Entered: 02/24/2018)

03/01/2018
03/01/2018 03/06/2018 03/09/2018
03/16/2018

115 MOTION for Judgment on the Pleadings and Motion to Partially Disolve the Preliminary Injunction by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 03/01/2018)
116 ORDER re: Conference. Signed by Judge Marvin J. Garbis on 3/1/2018. (kw2s, Deputy Clerk) (Entered: 03/05/2018)
Telephone Status Conference held on 3/1/2018 before Judge Marvin J. Garbis. (kw2s, Deputy Clerk) (Entered: 03/06/2018)
117 RESPONSE re 115 MOTION for Judgment on the Pleadings and Motion to Partially Disolve the Preliminary Injunction filed by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone.(Komorowski, Peter) (Entered: 03/09/2018)
118 REPLY to Response to Motion re 115 MOTION for Judgment on the Pleadings and Motion to Partially Disolve the Preliminary Injunction filed by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson.(Parker, Ryan) (Entered: 03/16/2018)

03/23/2018 119 NOTICE by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 03/23/2018)

03/23/2018 03/23/2018

120 MOTION to Dissolve the Preliminary Injunction by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parker, Ryan) (Entered: 03/23/2018)
121 MOTION for Protective Order by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 03/23/2018)

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03/29/2018 03/30/2018

122 Consent MOTION for Extension of Time to File Response/Reply as to 121 MOTION for Protective Order , 120 MOTION to Dissolve the Preliminary Injunction by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 03/29/2018)
123 ORDER granting 122 Consent MOTION for Extension of Time to File Response/Reply as to 121 MOTION for Protective Order, 120 MOTION to Dissolve the Preliminary Injunction. Signed by Judge Marvin J. Garbis on 3/30/2018. (kw2s, Deputy Clerk) (Entered: 03/30/2018)

04/11/2018

124 Consent MOTION for Extension of Time to File Response/Reply as to 121 MOTION for Protective Order by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 04/11/2018)

04/12/2018 125 MARGINAL ORDER granting 124 Consent MOTION for Extension of Time to File Response/Reply as to 121 MOTION for Protective Order. Signed by Judge Marvin J. Garbis on 4/12/2018. (kw2s, Deputy Clerk) (Entered: 04/12/2018)

04/13/2018 04/13/2018 04/13/2018 04/16/2018

126 MOTION to Appear Pro Hac Vice for Joshua Roselman (Filing fee $100, receipt number 0416−7268086.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 04/13/2018)
127 MOTION to Appear Pro Hac Vice for Sara Sunderland (Filing fee $100, receipt number 0416−7268093.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 04/13/2018)
128 RESPONSE in Opposition re 121 MOTION for Protective Order filed by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone. (Attachments: # 1 Affidavit of Marianne F. Kies, # 2 Exhibit 1 to Kies Decl., # 3 Exhibit 2 to Kies Decl., # 4 Exhibit 3 to Kies Decl.)(Kies, Marianne) (Entered: 04/13/2018)
129 MOTION to Appear Pro Hac Vice for Mark Neuman−Lee (Filing fee $100, receipt number 0416−7272140.) by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone(Kies, Marianne) (Entered: 04/16/2018)

04/18/2018

130 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 128 Response in Opposition to Motion, 117 Response, Notice of Supplemental Authority (Attachments: # 1 Exhibit Karnoski Order)(Kies, Marianne) (Entered: 04/18/2018)

04/18/2018

131 PAPERLESS ORDER granting 126 Motion to Appear Pro Hac Vice on behalf of Joshua Roselman. Directing attorney Joshua Roselman to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/18/2018. (srd, Deputy Clerk) (Entered: 04/18/2018)

04/18/2018 04/20/2018 04/20/2018

132 PAPERLESS ORDER granting 127 Motion to Appear Pro Hac Vice on behalf of Sara Sunderland. Directing attorney Sara Sunderland to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/18/2018. (srd, Deputy Clerk) (Entered: 04/18/2018)
133 NOTICE of filing Administrative Record by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson (Attachments: # 1 Certification of Administrative Record, # 2 Index of Administrative Record, # 3 AR Part 1, # 4 AR Part 2, # 5 AR Part 3, # 6 AR Part 4, # 7 AR Part 5, # 8 AR Part 6, # 9 AR Part 7, # 10 AR Part 8, # 11 AR Part 9, # 12 AR Part 10, # 13 AR Part 11, # 14 AR Part 12, # 15 AR Part 13)(Parker, Ryan) (Entered: 04/20/2018)
134 PAPERLESS ORDER granting 129 Motion to Appear Pro Hac Vice on behalf of Mark E Neuman−Lee. Directing attorney Mark E Neuman−Lee to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/20/2018. (srd, Deputy Clerk) (Entered: 04/20/2018)

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04/23/2018 04/23/2018

135 Consent MOTION for Leave to File Second Amended Complaint by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Memorandum ISO Motion, # 2 Text of Proposed Order, # 3 Exhibit 1 (Second Am. Complaint), # 4 Exhibit 2 (Redline Against First Am. Complaint))(Kies, Marianne) (Entered: 04/23/2018)
136 Consent MOTION for Other Relief Motion to Omit All Home Addresses from Caption and for Certain Additional Plaintiffs to Proceed Under Pseudonym by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Memorandum ISO Motion, # 2 Text of Proposed Order, # 3 Exhibit Notice of Filing of Document Under Seal (Doe 2), # 4 Exhibit Notice of Filing of Document Under Seal (Roe 1), # 5 Exhibit Notice of Filing of Document Under Seal (Doe 3), # 6 Affidavit D'Atri Declaration, # 7 Affidavit Wood Declaration, # 8 Affidavit Branco Declaration)(Kies, Marianne) (Entered: 04/23/2018)

04/23/2018

137 −SEALED − NOTICE of Filing Under Seal Doe 2 Declaration by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 136 Consent MOTION for Other Relief Motion to Omit All Home Addresses from Caption and for Certain Additional Plaintiffs to Proceed Under Pseudonym (Attachments: # 1 Affidavit Roe 1 Declaration, # 2 Affidavit Doe 3 Declaration)(Kies, Marianne) (Entered: 04/23/2018)

04/23/2018

138 MOTION to Seal Declarations of Doe 2, Roe 1, and Doe 3 by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 04/23/2018)

04/23/2018
04/23/2018 04/23/2018 04/23/2018

139 RESPONSE in Opposition re 120 MOTION to Dissolve the Preliminary Injunction filed by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone. (Attachments: # 1 Affidavit Declaration of Marianne F. Kies, # 2 Exhibit 1 to Kies Decl., # 3 Exhibit 2 to Kies Decl., # 4 Exhibit 3 to Kies Decl., # 5 Exhibit 4 to Kies Decl., # 6 Exhibit 5 to Kies Decl., # 7 Exhibit 6 to Kies Decl., # 8 Exhibit 7 to Kies Decl., # 9 Exhibit 8 to Kies Decl., # 10 Exhibit 9 to Kies Decl., # 11 Exhibit 10 to Kies Decl., # 12 Exhibit 11 to Kies Decl., # 13 Exhibit 12 to Kies Decl., # 14 Exhibit 13 to Kies Decl., # 15 Exhibit 14 to Kies Decl., # 16 Exhibit 15 to Kies Decl., # 17 Exhibit 16 to Kies Decl., # 18 Exhibit 17 to Kies Decl., # 19 Affidavit Declaration of George R. Brown, # 20 Exhibit A to Brown Decl., # 21 Exhibit B to Brown Decl., # 22 Exhibit C to Brown Decl., # 23 Exhibit D to Brown Decl., # 24 Exhibit E to Brown Decl., # 25 Exhibit F to Brown Decl., # 26 Exhibit G to Brown Decl., # 27 Exhibit H to Brown Decl., # 28 Exhibit I to Brown Decl., # 29 Affidavit Declaration of Brad R. Carson, # 30 Exhibit A to Carson Decl., # 31 Exhibit B to Carson Decl., # 32 Affidavit Declaration of Niko Branco, # 33 Affidavit Declaration of Brock Stone, # 34 Affidavit Declaration of Teddy D'Atri, # 35 Affidavit Declaration of Kate Cole, # 36 Affidavit Declaration of Ryan Wood, # 37 Affidavit Declaration of Seven Ero George, # 38 Affidavit Declaration of Teagan Gilbert, # 39 Affidavit Declaration of Tommie Parker, # 40 Exhibit Notice of Filing Under Seal (Doe 1), # 41 Exhibit Notice of Filing Under Seal (Doe 2), # 42 Exhibit Notice of Filing Under Seal (Doe 3), # 43 Exhibit Notice of Filing Under Seal (Roe 1))(Kies, Marianne) (Entered: 04/23/2018)
140 −SEALED − NOTICE of Filing Under Seal Doe 1 Declaration by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 139 Response in Opposition to Motion,,,,,,, (Attachments: # 1 Affidavit Doe 2 Declaration, # 2 Affidavit Doe 3 Declaration, # 3 Affidavit Roe 1 Declaration)(Kies, Marianne) (Entered: 04/23/2018)
141 MOTION to Seal Declarations of Doe 1, Doe 2, Doe 3, Roe 1 by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 04/23/2018)
142 Consent MOTION for Extension of Time to Complete Discovery and to Temporarily Suspend Discovery−Related Deadlines by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone (Attachments: # 1 Text of Proposed Order, # 2 Memorandum ISO Motion, # 3 Affidavit Declaration of Marianne F. Kies, # 4 Exhibit 1 to Kies Decl., # 5

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 32 of 46

04/24/2018
04/24/2018
04/24/2018 04/25/2018 04/27/2018 04/27/2018
04/30/2018 05/01/2018 05/01/2018 05/04/2018 05/04/2018 05/07/2018 05/07/2018 05/09/2018 05/09/2018 05/09/2018

Exhibit 2 to Kies Decl., # 6 Exhibit 3 to Kies Decl., # 7 Exhibit 4 to Kies Decl., # 8 Exhibit 5 to Kies Decl., # 9 Exhibit 6 to Kies Decl., # 10 Exhibit 7 to Kies Decl., # 11 Exhibit 8 to Kies Decl., # 12 Exhibit 9 to Kies Decl., # 13 Exhibit 10 to Kies Decl.)(Kies, Marianne) (Entered: 04/23/2018)
143 NOTICE by American Civil Liberties Union of Maryland, Inc., Kate Cole, John Doe, Seven Ero George, Teagan Gilbert, Tommie Parker, Brock Stone re 128 Response in Opposition to Motion, Notice of Supplemental Authority (Attachments: # 1 Exhibit A Order Denying Defendants' Motion for Protective Order, # 2 Exhibit B Order Denying Defendants' Motion for Protective Order)(Komorowski, Peter) (Entered: 04/24/2018)
144 ORDER granting 136 Consent MOTION for Other Relief Motion to Omit All Home Addresses from Caption and for Certain Additional Plaintiffs to Proceed Under Pseudonym. Signed by Judge Marvin J. Garbis on 4/24/2018. (kw2s, Deputy Clerk) (Entered: 04/25/2018)
145 ORDER granting 142 Consent MOTION for Extension of Time to Complete Discovery and to Temporarily Suspend Discovery−Related Deadlines. Signed by Judge Marvin J. Garbis on 4/24/2018. (kw2s, Deputy Clerk) (Entered: 04/25/2018)
146 REPLY to Response to Motion re 121 MOTION for Protective Order filed by James Mattis, Ryan McCarthy, Richard Spencer, Donald J. Trump, Heather Wilson.(Parker, Ryan) (Entered: 04/25/2018)
147 ORDER GRANTING 135 Motion for Leave to File Second Amended Complaint. Signed by Judge Marvin J. Garbis on 4/27/2018. (hmls, Deputy Clerk) (Entered: 04/30/2018)
148 SECOND AMENDED COMPLAINT against James Mattis, Mark Esper, Richard Spencer, Donald J. Trump, Heather Wilson, Kirstjen Nielsen, Paul Zukunft, filed by John Doe 1, Brock Stone, Teagan Gilbert, Tommie Parker, Kate Cole, Seven Ero George, American Civil Liberties Union of Maryland, Inc., Niko Branco, John Doe 4, John Doe 2, Jane Roe 1, Ryan Wood, Jane Roe 2, Teddy D'Atri, John Doe 3. (Attachments: # 1 Lined Version)(hmls, Deputy Clerk) (Entered: 04/30/2018)
149 MOTION for Leave to File Amicus Curiae Brief by Retired Military Officers and Former National Security Officials (Attachments: # 1 Exhibit Brief, # 2 Text of Proposed Order)(Spector, Phillip) (Entered: 04/30/2018)
150 ORDER granting 149 MOTION for Leave to File Amicus Curiae Brief. Signed by Judge Marvin J. Garbis on 5/1/2018. (kw2s, Deputy Clerk) (Entered: 05/02/2018)
151 Amicus Brief by Retired Military Officers and Former National Security Officials. (kw2s, Deputy Clerk) (Entered: 05/02/2018)
152 ORDER REFERRING CASE to Magistrate Judge Stephanie A Gallagher for all Discovery and Related Scheduling Matters. Signed by Judge Marvin J. Garbis on 5/4/2018. (cags, Deputy Clerk) (Entered: 05/04/2018)
153 ORDER re: Due date for motion.. Signed by Judge Marvin J. Garbis on 5/4/2018. (kw2s, Deputy Clerk) (Entered: 05/07/2018)
Case reassigned to Magistrate Judge A. David Copperthite for all Discovery and Related Scheduling. Magistrate Judge Stephanie A Gallagher no longer assigned to the case. (cags, Deputy Clerk) (Entered: 05/07/2018)
Telephone status Conference held on 5/4/2018 before Judge Marvin J. Garbis. (kw2s, Deputy Clerk) (Entered: 05/07/2018)
154 ORDER granting 138 MOTION to Seal Declarations of Doe 2, Roe 1, and Doe 3. Signed by Judge Marvin J. Garbis on 5/9/2018. (kw2s, Deputy Clerk) (Entered: 05/09/2018)
155 ORDER granting 141 MOTION to Seal Declarations of Doe 1, Doe 2, Doe 3, Roe 1. Signed by Judge Marvin J. Garbis on 5/9/2018. (kw2s, Deputy Clerk) (Entered: 05/09/2018)
156 MOTION for Leave to File Excess Pages by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft

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05/09/2018 05/11/2018 05/11/2018 05/11/2018 05/11/2018 05/21/2018 05/25/2018
05/25/2018 05/25/2018 05/29/2018

(Attachments: # 1 Text of Proposed Order)(Parker, Ryan) (Entered: 05/09/2018)
157 MARGINAL ORDER granting 156 Motion for Leave to File Excess Pages. Signed by Judge Marvin J. Garbis on 5/9/2018. (kw2s, Deputy Clerk) (Entered: 05/09/2018)
158 MOTION to Dismiss for Failure to State a Claim, MOTION to Dismiss for Lack of Jurisdiction , MOTION for Summary Judgment by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Exhibit, # 2 Exhibit)(Parker, Ryan) (Entered: 05/11/2018)
159 REPLY to Response to Motion re 120 MOTION to Dissolve the Preliminary Injunction filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft. (Attachments: # 1 Exhibit)(Parker, Ryan) (Entered: 05/11/2018)
160 −SEALED − NOTICE of Filing Under Seal Exhibits 3 and 4 to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 158 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment (Attachments: # 1 Affidavit)(Parker, Ryan) (Entered: 05/11/2018)
161 MOTION to Seal Exhibits 3 and 4 to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft(Parker, Ryan) (Entered: 05/11/2018)
162 NOTICE of Appearance by Courtney D Enlow on behalf of All Defendants (Enlow, Courtney) (Entered: 05/21/2018)
163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order, # 2 Memorandum of Law, # 3 Affidavit Decl. of Augustus Golden, # 4 Exhibit 1 to Golden Decl., # 5 Exhibit 2 to Golden Decl., # 6 Exhibit 3 to Golden Decl., # 7 Exhibit 4 to Golden Decl., # 8 Exhibit 5 to Golden Decl., # 9 Exhibit 6 to Golden Decl., # 10 Exhibit 7 to Golden Decl., # 11 Exhibit 8 to Golden Decl., # 12 Exhibit 9 to Golden Decl., # 13 Exhibit 10 to Golden Decl., # 14 Affidavit Supp. Decl. of N. Branco, # 15 Affidavit Supp. Decl. of R. Wood, # 16 Affidavit Rule 56(d) Decl. of Marianne F. Kies, # 17 Exhibit A to Kies Decl., # 18 Exhibit B to Kies Decl., # 19 Exhibit C to Kies Decl., # 20 Exhibit D to Kies Decl., # 21 Exhibit E to Kies Decl., # 22 Exhibit F to Kies Decl., # 23 Exhibit G to Kies Decl., # 24 Exhibit H to Kies Decl., # 25 Exhibit I to Kies Decl., # 26 Exhibit J to Kies Decl., # 27 Exhibit K to Kies Decl., # 28 Exhibit L to Kies Decl., # 29 Exhibit M to Kies Decl., # 30 Exhibit N to Kies Decl., # 31 Exhibit O to Kies Decl., # 32 Exhibit P to Kies Decl., # 33 Exhibit Q to Kies Decl., # 34 Exhibit R to Kies Decl., # 35 Exhibit S to Kies Decl.)(Kies, Marianne) (Entered: 05/25/2018)
164 −SEALED − NOTICE of Filing Under Seal Exhibit 5 to Golden Decl. ISO Plaintiffs' Cross−Motion and Oppn to Defendants' Motion to Dismiss or for Summary Judgment by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158) (Kies, Marianne) (Entered: 05/25/2018)
165 Consent MOTION to Seal Exhibit 5 to Golden Decl. by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 05/25/2018)
166 ORDER granting 161 MOTION to Seal Exhibits 3 and 4 to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Signed by Judge Marvin J. Garbis on 5/29/2018. (kw2s, Deputy Clerk) (Entered: 05/30/2018)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 34 of 46

05/30/2018 05/30/2018

167 Consent MOTION for Extension of Time to File Response/Reply as to 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158) by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 05/30/2018)
168 ORDER granting 167 Consent MOTION for Extension of Time to File Response/Reply as to 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158). Signed by Judge Marvin J. Garbis on 5/30/2018. (kw2s, Deputy Clerk) (Entered: 05/30/2018)

05/31/2018

169 NOTICE by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood Joint Filing Regarding the Parties' Proposed Amended Schedules (Komorowski, Peter) (Entered: 05/31/2018)

06/07/2018 170 AMENDED SCHEDULING ORDER; Order denying 121 Motion for Protective Order Signed by Judge Marvin J. Garbis on 6/6/2018. (kw2s, Deputy Clerk) Modified on 6/7/2018 (kw2s, Deputy Clerk). (Entered: 06/07/2018)

06/07/2018 06/08/2018 06/08/2018 06/12/2018

171 MOTION to Withdraw as Attorney by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft(Parker, Ryan) (Entered: 06/07/2018)
172 MARGINAL ORDER granting 171 Motion to Withdraw as Attorney. Attorney Ryan Bradley Parker terminated. Signed by Judge Marvin J. Garbis on 6/8/2018. (kw2s, Deputy Clerk) (Entered: 06/11/2018)
173 ORDER granting 165 Consent MOTION to Seal Exhibit 5 to Golden Decl.. Signed by Judge Marvin J. Garbis on 6/8/2018. (kw2s, Deputy Clerk) (Entered: 06/11/2018)
174 Consent MOTION for Leave to File Excess Pages by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 06/12/2018)

06/13/2018 175 ORDER granting 174 Consent MOTION for Leave to File Excess Pages. Signed by Judge Marvin J. Garbis on 6/13/2018. (kw2s, Deputy Clerk) (Entered: 06/13/2018)

06/15/2018

176 RESPONSE in Opposition re 158 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment , 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158) filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft. (Attachments: # 1 Exhibit Barna Declaration, # 2 Exhibit DoD Handbook, # 3 Exhibit Navy CO Toolkit, # 4 Exhibit Enlow Declaration, # 5 Exhibit Email 4.11.18, # 6 Exhibit Flores Supplemental Declaration)(Enlow, Courtney) (Entered: 06/15/2018)

06/15/2018

177 Local Rule 104.7 Certificate (Attachments: # 1 Supplement Motion to Compel, # 2 Text of Proposed Order, # 3 Supplement Memo ISO Motion to Compel, # 4 Affidavit Decl. of Marianne F. Kies, # 5 Exhibit 1 to Kies Decl. (Mot), # 6 Exhibit 2 to Kies Decl. (Mot), # 7 Exhibit 3 to Kies Decl. (Mot), # 8 Exhibit 4 to Kies Decl. (Mot), # 9 Exhibit 5 to Kies Decl. (Mot), # 10 Exhibit 6 to Kies Decl. (Mot), # 11 Exhibit 7 to Kies Decl. (Mot), # 12 Exhibit 8 to Kies Decl. (Mot), # 13 Exhibit 9 to Kies Decl. (Mot), # 14 Exhibit 10 to Kies Decl. (Mot), # 15 Exhibit 11 to Kies Decl. (Mot), # 16 Exhibit 12 to Kies Decl. (Mot), # 17 Exhibit 13 to Kies Decl. (Mot), # 18 Exhibit 14 to Kies Decl. (Mot), # 19 Exhibit 15 to Kies Decl. (Mot), # 20 Exhibit 16 to Kies Decl. (Mot), # 21 Exhibit 17 to Kies Decl. (Mot), # 22 Exhibit 18 to Kies Decl. (Mot), # 23 Exhibit 19 to Kies Decl. (Mot), # 24 Exhibit 20 to Kies Decl. (Mot), # 25 Exhibit 21 to Kies Decl. (Mot), # 26 Exhibit 22 to Kies Decl. (Mot), # 27 Supplement Opposition to Motion to Compel, # 28 Affidavit Decl. of Courtney Enlow, # 29 Exhibit 1 to Enlow Decl., # 30 Exhibit 2 to Enlow Decl., # 31 Exhibit 3 to Enlow Decl., # 32 Exhibit 4 to Enlow Decl., # 33 Supplement Reply ISO Motion to Compel, # 34 Affidavit Decl. of Marianne F. Kies, # 35 Exhibit 1 to Kies Decl. (Reply), # 36 Exhibit 2 to Kies Decl. (Reply), # 37 Exhibit 3 to Kies Decl. (Reply), # 38 Exhibit 4 to Kies Decl. (Reply), # 39 Exhibit 5 (Pt. 1) to Kies Decl. (Reply), # 40 Exhibit 5 (Pt. 2) to Kies Decl. (Reply), # 41 Exhibit 5 (Pt. 3) to Kies Decl. (Reply), # 42 Exhibit 5 (Pt. 4) to Kies Decl. (Reply), # 43 Exhibit 5 (Pt. 5) to Kies Decl. (Reply), # 44 Exhibit 5 (Pt. 6) to Kies

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 35 of 46

06/15/2018
06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/19/2018 06/20/2018 06/29/2018 06/29/2018 06/29/2018

Decl. (Reply), # 45 Exhibit 5 (Pt. 7) to Kies Decl. (Reply), # 46 Exhibit 5 (Pt. 8) to Kies Decl. (Reply), # 47 Exhibit 5 (Pt. 9) to Kies Decl. (Reply), # 48 Exhibit 5 (Pt. 10) to Kies Decl. (Reply))(Kies, Marianne) (Entered: 06/15/2018)
178 −SEALED− MOTION for Other Relief Motion for Judicial Determination of Privilege Claims (FRE 502(d)) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order, # 2 Supplement Memorandum ISO Motion, # 3 Affidavit Decl. of Augustus Golden, # 4 Exhibit 1 to Golden Decl., # 5 Exhibit 2 to Golden Decl., # 6 Exhibit 3 to Golden Decl., # 7 Exhibit 4 to Golden Decl., # 8 Exhibit 5 to Golden Decl., # 9 Exhibit 6 to Golden Decl., # 10 Exhibit 7 to Golden Decl., # 11 Exhibit 8 to Golden Decl., # 12 Exhibit 9 to Golden Decl., # 13 Exhibit 10 to Golden Decl., # 14 Exhibit 11 to Golden Decl., # 15 Exhibit 12 to Golden Decl., # 16 Exhibit 13 to Golden Decl., # 17 Exhibit 14 to Golden Decl., # 18 Exhibit 15 to Golden Decl., # 19 Exhibit 16 to Golden Decl., # 20 Exhibit 17 to Golden Decl., # 21 Exhibit 18 to Golden Decl., # 22 Exhibit 19 to Golden Decl.)(Kies, Marianne) (Entered: 06/15/2018)
179 MOTION for Protective Order by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 LR 104.7 Certificate, # 2 Text of Proposed Order, # 3 Exhibit 1)(Enlow, Courtney) (Entered: 06/18/2018)
180 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 179 MOTION for Protective Order (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5)(Enlow, Courtney) (Entered: 06/18/2018)
181 −SEALED − NOTICE of Filing Under Seal Exhibits 2−5 to Motion for a Protective Order by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 179 MOTION for Protective Order (Attachments: # 1 Sealed Exhibit 2, # 2 Sealed Exhibit 3, # 3 Sealed Exhibit 4, # 4 Sealed Exhibit 5)(Enlow, Courtney) (Entered: 06/18/2018)
182 Consent MOTION to Seal Exhibits 2−5 to Defendants' Motion for a Protective Order by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 06/18/2018)
183 ORDER granting 182 Consent MOTION to Seal Exhibits 2−5 to Defendants' Motion for a Protective Order. Signed by Magistrate Judge A. David Copperthite on 6/19/2018. (kw2s, Deputy Clerk) (Entered: 06/19/2018)
184 NOTICE by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 177 Local Rule,,,,,,,, 177−27, Defendants' Response to Plaintiffs' Motion to Compel, Corrected (Komorowski, Peter) (Entered: 06/20/2018)
185 Consent MOTION for Other Relief Regarding Briefing Schedule for Defendants' Motion for Protective Order (ECF 179) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A (Stipulation))(Kies, Marianne) (Entered: 06/29/2018)
186 −SEALED−RESPONSE to Motion re 178 MOTION for Other Relief Motion for Judicial Determination of Privilege Claims (FRE 502(d)) filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Enlow, Courtney) (Entered: 06/29/2018)
187 ORDER granting 185 Consent MOTION for Other Relief Regarding Briefing Schedule for Defendants' Motion for Protective Order (ECF 179). Signed by Magistrate Judge A. David Copperthite on 6/29/2018. (kw2s, Deputy Clerk) (Entered: 07/02/2018)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 36 of 46

07/03/2018 07/05/2018

188 Consent MOTION for Leave to File Excess Pages by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Komorowski, Peter) (Entered: 07/03/2018)
189 PAPERLESS ORDER granting 188 Motion for Leave to File Excess Pages. Signed by Chief Judge James K. Bredar on 7/5/2018. (bpgs, Chambers) (Entered: 07/05/2018)

07/06/2018

190 REPLY to Response to Motion re 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158) filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. (Attachments: # 1 Affidavit Kies Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Komorowski, Peter) (Entered: 07/06/2018)

07/10/2018

Case reassigned to Judge George Levi Russell, III. Judge Marvin J. Garbis no longer assigned to the case. (cags, Deputy Clerk) (Entered: 07/10/2018)

07/13/2018
07/17/2018 07/19/2018 07/26/2018

191 −SEALED−REPLY to Response to Motion re 178 MOTION for Other Relief Motion for Judicial Determination of Privilege Claims (FRE 502(d)) filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Komorowski, Peter) (Entered: 07/13/2018)
192 ORDER re: Telephone Conference. Signed by Judge George Levi Russell, III on 7/17/2018. (kw2s, Deputy Clerk) (Entered: 07/17/2018)
193 Consent MOTION for Other Relief Regarding Depositions by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Stipulation)(Enlow, Courtney) (Entered: 07/19/2018)
194 Consent MOTION for Other Relief Motion for Leave to File a Surreply to Plaintiffs' Cross−Motion for Summary Judgment by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Attachment Surreply, # 2 Text of Proposed Order)(Enlow, Courtney) (Entered: 07/26/2018)

07/26/2018

195 Consent MOTION for Other Relief Motion for Leave to File a Supplemental Brief by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Attachment Supplemental Brief, # 2 Text of Proposed Order)(Enlow, Courtney) (Entered: 07/26/2018)

07/27/2018 196 ORDER granting 195 Consent MOTION for Other Relief Motion for Leave to File a Supplemental Brief. Signed by Magistrate Judge A. David Copperthite on 7/27/2018. (aos, Deputy Clerk) (Entered: 07/27/2018)

07/27/2018 07/30/2018 07/31/2018
07/31/2018

197 Supplemental to 184 Defendants' Response to Plaintiffs' Motion to Compel, (aos, Deputy Clerk) (Entered: 07/27/2018)
198 Joint Correspondence re: Court's July 17, 2018 Order (ECF 192) (Kies, Marianne) (Entered: 07/30/2018)
199 ORDER granting 193 Consent MOTION for Other Relief Regarding Depositions. Signed by Magistrate Judge A. David Copperthite on 7/31/2018. (kw2s, Deputy Clerk) (Entered: 07/31/2018)
200 NOTICE by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 177 Local Rule,,,,,,,, 139 Response in Opposition to Motion,,,,,,, Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kies, Marianne) (Entered: 07/31/2018)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 37 of 46

08/01/2018 08/01/2018

201 ORDER re: Teleconference. Signed by Judge George Levi Russell, III on 8/1/2018. (kw2s, Deputy Clerk) (Entered: 08/01/2018)
Telephone Conference re: Status held on 8/1/2018 before Judge George Levi Russell, III.(Recorded in Chambers) (kam, Deputy Clerk) (Entered: 08/01/2018)

08/01/2018 202 ORDER granting 194 Consent MOTION for Other Relief Motion for Leave to File a Surreply to Plaintiffs' Cross−Motion for Summary Judgment. Signed by Judge George Levi Russell, III on 8/1/2018. (kw2s, Deputy Clerk) (Entered: 08/02/2018)

08/01/2018

203 SURREPLY filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft to 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158). (kw2s, Deputy Clerk) (Entered: 08/02/2018)

08/14/2018 08/14/2018 08/16/2018
08/17/2018

204 MEMORANDUM OPINION. Signed by Magistrate Judge A. David Copperthite on 8/14/2018. (kw2s, Deputy Clerk) (Entered: 08/14/2018)
205 ORDER dismissing as moot 178 Motion ; granting in part and denying in part 179 Motion for Protective Order; granting 177 Motion to Compel/Local Rule 104.7 Certificate. Signed by Magistrate Judge A. David Copperthite on 8/14/2018. (kw2s, Deputy Clerk) (Entered: 08/14/2018)
206 NOTICE by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 139 Response in Opposition to Motion,,,,,,, 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158) Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kies, Marianne) (Entered: 08/16/2018)
207 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 115 MOTION for Judgment on the Pleadings and Motion to Partially Disolve the Preliminary Injunction, 158 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment Supplemental Authority (Attachments: # 1 Doe Order, # 2 Doe Opinion)(Enlow, Courtney) (Entered: 08/17/2018)

08/17/2018

208 MOTION to Stay re 205 Order on Motion for Other Relief,, Order on Motion for Protective Order, by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 08/17/2018)

08/28/2018

209 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 205 Order on Motion for Other Relief,, Order on Motion for Protective Order, 204 Memorandum Opinion (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 08/28/2018)

08/30/2018 08/31/2018 09/05/2018

210 Joint MOTION for Extension of Time to Complete Discovery (Motion to Suspend Certain Deadlines) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 08/30/2018)
211 RESPONSE in Opposition re 208 MOTION to Stay re 205 Order on Motion for Other Relief,, Order on Motion for Protective Order, filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 08/31/2018)
212 Consent MOTION for Extension of Time to File Response/Reply as to 209 Appeal of Magistrate Judge Decision to District Court, by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 09/05/2018)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 38 of 46

09/10/2018 09/10/2018

213 ORDER granting 210 Joint MOTION for Extension of Time to Complete Discovery (Motion to Suspend Certain Deadlines). Signed by Judge George Levi Russell, III on 9/10/2018. (kw2s, Deputy Clerk) (Entered: 09/11/2018)
214 ORDER granting 212 Consent MOTION for Extension of Time to File Response/Reply as to 209 Appeal of Magistrate Judge Decision to District Court. Signed by Judge George Levi Russell, III on 9/10/2018. (kw2s, Deputy Clerk) (Entered: 09/11/2018)

09/14/2018

215 REPLY to Response to Motion re 208 MOTION to Stay re 205 Order on Motion for Other Relief,, Order on Motion for Protective Order, filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Enlow, Courtney) (Entered: 09/14/2018)

09/14/2018

216 RESPONSE re 209 Appeal of Magistrate Judge Decision to District Court, Plaintiffs' Response to Defendants' Objections to the Magistrate Judge's Memorandum Opinion and Order filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 09/14/2018)

09/18/2018 09/20/2018
09/23/2018 09/24/2018

217 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 208 MOTION to Stay re 205 Order on Motion for Other Relief,, Order on Motion for Protective Order, Notice of Order by Ninth Circuit (Attachments: # 1 Ninth Circuit Order)(Enlow, Courtney) (Entered: 09/18/2018)
218 NOTICE by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 211 Response in Opposition to Motion, 139 Response in Opposition to Motion,,,,,,, 163 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or for Summary Judgment (ECF 158), 216 Response, Notice of Supplemental Authority (Attachments: # 1 Exhibit Stockman Order)(Komorowski, Peter) (Entered: 09/20/2018)
219 RESPONSE re 217 Notice (Other), Plaintiffs' Response to Defendants' Notice of Decision filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Komorowski, Peter) (Entered: 09/23/2018)
220 RESPONSE re 219 Response, Reply in Support of Notice of Decision filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Enlow, Courtney) (Entered: 09/24/2018)

09/28/2018 221 REPLY re 209 Appeal of Magistrate Judge Decision to District Court, filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Enlow, Courtney) (Entered: 09/28/2018)

10/22/2018

222 MOTION for Other Relief Motion to Set Date Certain for Compliance with Discovery Order and Request for Expedited Briefing by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order, # 2 Affidavit Kies Decl., # 3 Exhibit A to Kies Decl., # 4 Exhibit B to Kies Decl., # 5 Exhibit C to Kies Decl.)(Komorowski, Peter) (Entered: 10/22/2018)

10/23/2018 10/24/2018

223 RESPONSE re 222 MOTION for Other Relief Motion to Set Date Certain for Compliance with Discovery Order and Request for Expedited Briefing Partial response to Plaintiffs' request to expedite briefing filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Enlow, Courtney) (Entered: 10/23/2018)
224 REPLY to Response to Motion re 222 MOTION for Other Relief Motion to Set Date Certain for Compliance with Discovery Order and Request for Expedited Briefing filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George,

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 39 of 46

11/05/2018 11/19/2018
11/30/2018 11/30/2018
12/10/2018 01/04/2019 01/09/2019 01/22/2019 01/23/2019 01/24/2019 01/30/2019
01/30/2019

Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 10/24/2018)
225 RESPONSE in Opposition re 222 MOTION for Other Relief Motion to Set Date Certain for Compliance with Discovery Order and Request for Expedited Briefing filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft. (Attachments: # 1 Declaration of Robert Easton)(Enlow, Courtney) (Entered: 11/05/2018)
226 REPLY to Response to Motion re 222 MOTION for Other Relief Motion to Set Date Certain for Compliance with Discovery Order and Request for Expedited Briefing filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 11/19/2018)
227 MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 11/30/2018. (kw2s, Deputy Clerk) (Entered: 12/03/2018)
228 ORDER granting 208 MOTION to Stay re 205 Order on Motion for Other Relief, Order on Motion for Protective Order; OVERRULED 209 APPEAL OF MAGISTRATE JUDGE DECISION ; Denying as moot 222 Motion for Other Relief Motion to Set Date Certain for Compliance with Discovery Order and Request for Expedited Briefing; The effect of the USMJs Memorandum Opinion and Order 204 and 205 is STAYED. Signed by Judge George Levi Russell, III on 11/30/2018. (kw2s, Deputy Clerk) (Entered: 12/03/2018)
229 NOTICE by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 139 Response in Opposition to Motion,,,,,,, Notice of Supplemental Authority (Attachments: # 1 Exhibit A (Doe Order))(Kies, Marianne) (Entered: 12/10/2018)
230 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 120 MOTION to Dissolve the Preliminary Injunction Notice of Supplemental Authority (Attachments: # 1 Attachment DC Circuit Judgment in Doe v. Shanahan)(Enlow, Courtney) (Entered: 01/04/2019)
231 RESPONSE re 230 Notice (Other), filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 01/09/2019)
232 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 120 MOTION to Dissolve the Preliminary Injunction Notice of Supplemental Authority (Enlow, Courtney) (Entered: 01/22/2019)
233 RESPONSE re 232 Notice (Other) filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Komorowski, Peter) (Entered: 01/23/2019)
234 MOTION for Other Relief Motion to Stay the Preliminary Injunction and Request for Expedited Ruling by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft(Enlow, Courtney) (Entered: 01/24/2019)
235 RESPONSE in Opposition re 234 MOTION for Other Relief Motion to Stay the Preliminary Injunction and Request for Expedited Ruling filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. (Attachments: # 1 Affidavit Declaration of Niko Branco, # 2 Affidavit Declaration of Seven Ero George, # 3 Affidavit Declaration of Teagan Gilbert, # 4 Exhibit Notice of Filing Under Seal (Doe 2))(Komorowski, Peter) (Entered: 01/30/2019)
236 −SEALED − NOTICE of Filing Under Seal Declaration of John Doe 2 by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 40 of 46

01/30/2019
01/31/2019 01/31/2019
02/01/2019 02/01/2019 02/13/2019 02/14/2019 02/15/2019 02/27/2019
02/28/2019 02/28/2019
03/01/2019 03/07/2019

Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood re 235 Response in Opposition to Motion,, (Attachments: # 1 Affidavit Declaration of John Doe 2)(Komorowski, Peter) (Entered: 01/30/2019)
237 MOTION to Seal Declaration of John Doe 2 by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Komorowski, Peter) (Entered: 01/30/2019)
238 STATUS REPORT by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft(Enlow, Courtney) (Entered: 01/31/2019)
239 MOTION for Other Relief Motion to Lift Stay of Compliance by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 01/31/2019)
240 MARGINAL ORDER Approving 238 Status Report filed by James Mattis, Paul Zukunft, Kirstjen Nielsen, Heather Wilson, Mark Esper, Richard Spencer, Donald J. Trump. Signed by Judge George Levi Russell, III on 2/1/2019. (kw2s, Deputy Clerk) (Entered: 02/01/2019)
241 PAPERLESS NOTICE − The parties are to file a further status report no later than June 3, 2019. (dafs, Chambers) (Entered: 02/01/2019)
242 REPLY to Response to Motion re 234 MOTION for Other Relief Motion to Stay the Preliminary Injunction and Request for Expedited Ruling filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Enlow, Courtney) (Entered: 02/13/2019)
243 RESPONSE to Motion re 239 MOTION for Other Relief Motion to Lift Stay of Compliance filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Enlow, Courtney) (Entered: 02/14/2019)
244 ORDER granting 237 MOTION to Seal Declaration of John Doe 2. Signed by Judge George Levi Russell, III on 2/15/2019. (kw2s, Deputy Clerk) (Entered: 02/15/2019)
245 MOTION to Withdraw as Attorney by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Martinez Resly, Jaclyn) (Entered: 02/27/2019)
246 ORDER granting 245 Motion to Withdraw as Attorney. Attorney Jaclyn Elysse Martinez Resly terminated. Signed by Judge George Levi Russell, III on 2/28/2019. (kw2s, Deputy Clerk) (Entered: 02/28/2019)
247 REPLY to Response to Motion re 239 MOTION for Other Relief Motion to Lift Stay of Compliance filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 02/28/2019)
248 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft of Filing Petition for Writ of Mandamus (Attachments: # 1 Mandamus Petition, # 2 Addendum to the Mandamus Petition)(Enlow, Courtney) (Entered: 03/01/2019)
249 ORDER granting 234 MOTION for Other Relief Motion to Stay the Preliminary Injunction and Request for Expedited Ruling. Signed by Judge George Levi Russell, III on 3/7/2019. (kw2s, Deputy Clerk) (Entered: 03/07/2019)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 41 of 46

03/08/2019 03/11/2019

250 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Enlow, Courtney) (Entered: 03/08/2019)
251 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft re 158 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment , 230 Notice (Other), 120 MOTION to Dissolve the Preliminary Injunction Supplemental Authority (Attachments: # 1 D.C. Circuit concurring opinions)(Enlow, Courtney) (Entered: 03/11/2019)

03/25/2019

252 RESPONSE re 251 Notice (Other), filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Kies, Marianne) (Entered: 03/25/2019)

05/31/2019 253 STATUS REPORT Joint status report on status of Ninth Circuit proceedings by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft(Enlow, Courtney) (Entered: 05/31/2019)

06/04/2019 06/18/2019 06/19/2019 06/27/2019

254 MARGINAL ORDER Approving 253 STATUS REPORT Joint status report on status of Ninth Circuit proceedings filed by James Mattis, Paul Zukunft, Kirstjen Nielsen, Heather Wilson, Mark Esper, Richard Spencer, Donald J. Trump. Signed by Judge George Levi Russell, III on 6/4/2019. (kw2s, Deputy Clerk) (Entered: 06/04/2019)
255 NOTICE by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft of Supplemental Authority (Attachments: # 1 Ninth Circuit Opinion)(Enlow, Courtney) (Entered: 06/18/2019)
256 RESPONSE re 255 Notice (Other) filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Komorowski, Peter) (Entered: 06/19/2019)
257 MOTION for Reconsideration re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, , MOTION to Stay Pending Re−examination re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, and Request for Administrative Stay by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Enlow, Courtney) (Entered: 06/27/2019)

07/03/2019

258 Consent MOTION for Extension of Time to File Response/Reply as to 257 MOTION for Reconsideration re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, MOTION to Stay Pending Re−examination re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, and Request for Administrative Stay by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Kies, Marianne) (Entered: 07/03/2019)

07/08/2019

259 MARGINAL ORDER granting 258 Consent MOTION for Extension of Time to File Response/Reply as to 257 MOTION for Reconsideration re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, MOTION to Stay Pending Re−examination re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, and Request for Administrative Stay. Signed by Judge George Levi Russell, III on 7/8/2019. (kw2s, Deputy Clerk) (Entered: 07/08/2019)

07/22/2019

260 RESPONSE in Opposition re 257 MOTION for Reconsideration re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, MOTION to Stay Pending Re−examination re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, and Request for Administrative Stay filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. (Attachments: # 1 Affidavit Decl. of Peter J. Komorowski III, # 2 Exhibit 1 to Komorowski Decl., # 3 Exhibit 2 to Komorowski Decl., # 4 Exhibit 3 to Komorowski

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 42 of 46

08/07/2019 08/16/2019
08/20/2019 08/20/2019
08/23/2019 08/27/2019
09/03/2019 09/03/2019 09/16/2019 09/16/2019 09/18/2019 09/18/2019 09/18/2019

Decl., # 5 Exhibit 4 to Komorowski Decl., # 6 Exhibit 5 to Komorowski Decl., # 7 Exhibit 6 to Komorowski Decl., # 8 Exhibit 7 to Komorowski Decl.)(Komorowski, Peter) (Entered: 07/22/2019)
261 NOTICE of Appearance by Ashley A Cheung on behalf of All Defendants (Cheung, Ashley) (Entered: 08/07/2019)
262 REPLY to Response to Motion re 257 MOTION for Reconsideration re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, MOTION to Stay Pending Re−examination re 227 Memorandum Opinion, 228 Order on Motion to Stay,, Order on Motion for Other Relief, and Request for Administrative Stay , RESPONSE in Support filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft.(Cheung, Ashley) (Entered: 08/16/2019)
263 MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/20/2019. (kw2s, Deputy Clerk) (Entered: 08/20/2019)
264 ORDER denying without prejudice in part and denied as moot in part 115 Motion for Judgment on the Pleadings and Motion to Partially Disolve the Preliminary Injunction ; granting 120 Motion to Dissolve the Preliminary Injunction ; granting in part and denying in part 158 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 158 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 158 Motion for Summary Judgment; denying without prejudice 163 Cross MOTION for Summary Judgment; Dissolved 84 PRELIMINARY INJUNCTION 8/20/2019. (kw2s, Deputy Clerk) (Entered: 08/20/2019)
265 Consent MOTION for Extension of Time to File Answer by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Cheung, Ashley) (Entered: 08/23/2019)
266 ORDER granting 265 Consent MOTION for Extension of Time to File Answer Mark Esper answer due 9/17/2019; James Mattis answer due 9/17/2019; Kirstjen Nielsen answer due 9/17/2019; Richard Spencer answer due 9/17/2019; Donald J. Trump answer due 9/17/2019; Heather Wilson answer due 9/17/2019; Paul Zukunft answer due 9/17/2019. Signed by Judge George Levi Russell, III on 8/27/2019. (kw2s, Deputy Clerk) (Entered: 08/27/2019)
267 MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/3/2019. (kw2s, Deputy Clerk) (Entered: 09/03/2019)
268 ORDER granting in part and denying in part 257 Motion for Reconsideration ; granting in part and denying in part 257 Motion to Stay Pending Re−examination. Signed by Judge George Levi Russell, III on 9/3/2019. (kw2s, Deputy Clerk) (Entered: 09/03/2019)
269 Consent MOTION for Extension of Time to File Answer by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Cheung, Ashley) (Entered: 09/16/2019)
270 ORDER granting 269 Consent MOTION for Extension of Time to File Answer. Signed by Judge George Levi Russell, III on 9/16/2019. (kw2s, Deputy Clerk) (Entered: 09/16/2019)
Case reassigned to Judge Stephanie A. Gallagher. Judge George Levi Russell, III no longer assigned to the case. (cags, Deputy Clerk) (Entered: 09/18/2019)
271 PAPERLESS ORDER: The parties are ORDERED to provide supplemental briefing consistent with the issues set forth in the Court's Opinion (ECF 267) remanded to this Court for additional findings. Any supplemental briefing will be limited to the issues for remand and will be due within 14 days of this Order. Signed by Magistrate Judge A. David Copperthite on 9/18/2019. (Chambers) (Entered: 09/18/2019)
Case reassigned to Judge George Levi Russell, III. Judge Stephanie A. Gallagher no longer assigned to the case. (cags, Deputy Clerk) (Entered: 09/18/2019)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 43 of 46

09/19/2019 09/19/2019

272 Consent MOTION to Vacate 199 Order on Motion for Other Relief to vacate deposition deadlines by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 09/19/2019)
273 ORDER granting 272 Consent MOTION to Vacate 199 Order on Motion for Other Relief to vacate deposition deadlines. Signed by Magistrate Judge A. David Copperthite on 9/19/2019. (kw2s, Deputy Clerk) (Entered: 09/19/2019)

09/20/2019

274 Consent MOTION for Other Relief To Modify the Schedule for Supplemental Briefing Regarding Remanded Discovery Proceedings by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Text of Proposed Order)(Komorowski, Peter) (Entered: 09/20/2019)

09/23/2019

275 ORDER granting 274 Consent MOTION for Other Relief To Modify the Schedule for Supplemental Briefing Regarding Remanded Discovery Proceedings. Signed by Magistrate Judge A. David Copperthite on 9/23/2019. (kw2s, Deputy Clerk) (Entered: 09/23/2019)

10/07/2019
10/18/2019 10/18/2019 10/21/2019

276 −SEALED−Supplemental MOTION for Other Relief Supplemental Brief Regarding Remanded Discovery Proceedings by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Affidavit Decl. of Peter J. Komorowski III, # 2 Exhibit 1 to Komorowski Decl., # 3 Exhibit 2 to Komorowski Decl., # 4 Exhibit 3 to Komorowski Decl., # 5 Exhibit 4 to Komorowski Decl., # 6 Exhibit 5 to Komorowski Decl., # 7 Exhibit 6 to Komorowski Decl.)(Komorowski, Peter) (Entered: 10/07/2019)
277 MOTION to Withdraw as Attorney by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft(Cheung, Ashley) (Entered: 10/18/2019)
278 MARGINAL ORDER granting 277 Motion to Withdraw as Attorney. Attorney Ashley A Cheung terminated. Signed by Judge George Levi Russell, III on 10/18/2019. (kw2s, Deputy Clerk) (Entered: 10/21/2019)
279 MOTION to Appear Pro Hac Vice for Jeffrey Huberman (Filing fee $100, receipt number 0416−8302262.) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood(Komorowski, Peter) (Entered: 10/21/2019)

10/22/2019

280 PAPERLESS ORDER granting 279 Motion to Appear Pro Hac Vice on behalf of Jeffrey Huberman. Directing attorney Jeffrey Huberman to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic−case−filing−password−reset. Signed by Clerk on 10/22/2019. (srd, Deputy Clerk) (Entered: 10/22/2019)

10/25/2019

281 RESPONSE in Opposition re 276 Supplemental MOTION for Other Relief Supplemental Brief Regarding Remanded Discovery Proceedings filed by Mark Esper, James Mattis, Kirstjen Nielsen, Richard Spencer, Donald J. Trump, Heather Wilson, Paul Zukunft. (Attachments: # 1 Exhibit Easton declaration, # 2 Exhibit Email, # 3 Exhibit Email)(Enlow, Courtney) (Entered: 10/25/2019)

11/03/2019 11/06/2019

282 Consent MOTION for Leave to File Third Amended Complaint by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 Third Amended Complaint, # 3 Exhibit 2 Comparison)(Komorowski, Peter) (Entered: 11/03/2019)
283 MARGINAL ORDER granting 282 Unopposed Motion for Leave to File a Third Amended Complaint. Signed by Judge George Levi Russell, III on 11/6/2019. (bmhs, Deputy Clerk) (Entered: 11/06/2019)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 44 of 46

11/06/2019 11/06/2019

284 THIRD AMENDED COMPLAINT against Barbara Barrett, Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump, filed by John Doe 1, Teddy D'Atri, Jane Roe 1, John Doe 2, Brock Stone, Tommie Parker, Teagan Gilbert, Jane Roe 2, John Doe 4, Niko Branco, John Doe 3, Kate Cole, American Civil Liberties Union of Maryland, Inc., Seven Ero George, Ryan Wood. (Attachments: # 1 Redline Amended Complaint)(bmhs, Deputy Clerk) (Entered: 11/06/2019)
285 −SEALED−REPLY to Response to Motion re 276 Supplemental MOTION for Other Relief Supplemental Brief Regarding Remanded Discovery Proceedings filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. (Attachments: # 1 Affidavit Komorowski Decl., # 2 Exhibit 1 Komorowski Decl.)(Komorowski, Peter) (Entered: 11/06/2019)

11/19/2019 286 NOTICE of Appearance by Michael J Gerardi on behalf of Barbara Barrett, Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump (Gerardi, Michael) (Entered: 11/19/2019)

12/04/2019 287 ANSWER to 284 Amended Complaint, by Barbara Barrett, Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump.(Gerardi, Michael) (Entered: 12/04/2019)

12/10/2019 12/10/2019 12/10/2019 12/11/2019

288 MOTION to Appear Pro Hac Vice for Rishi R. Gupta (Filing fee $100, receipt number 0416−8396105.) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood(Komorowski, Peter) (Entered: 12/10/2019)
289 QC NOTICE: 288 Motion to Appear Pro Hac Vice, filed by Teddy D'Atri, Jane Roe 2, Brock Stone, Ryan Wood, John Doe 2, John Doe 4, Niko Branco, Jane Roe 1, John Doe 1, Kate Cole, John Doe 3, Seven Ero George, Teagan Gilbert, Tommie Parker, American Civil Liberties Union of Maryland, Inc. needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srd, Deputy Clerk) (Entered: 12/10/2019)
290 CORRECTED MOTION to Appear Pro Hac Vice for Rishi R. Gupta by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. The fee has already been paid.(Komorowski, Peter) (Entered: 12/10/2019)
291 PAPERLESS ORDER granting 290 Corrected Motion to Appear Pro Hac Vice on behalf of Rishi R Gupta. Directing attorney Rishi R Gupta to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 12/11/2019. (srd, Deputy Clerk) (Entered: 12/11/2019)

01/29/2020

292 −SEALED− MOTION for Other Relief Motion for Leave to Serve Additional Discovery by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood (Attachments: # 1 Memorandum in Support, # 2 Appendix A. Relevance of Plaintiffs Additional Requests for Production and Interrogatories, # 3 Text of Proposed Order, # 4 Affidavit Declaration of Peter J. Komorowski III, # 5 Exhibit A to Komorowski Decl., # 6 Exhibit B to Komorowski Decl., # 7 Exhibit C to Komorowski Decl., # 8 Exhibit D to Komorowski Decl., # 9 Exhibit E to Komorowski Decl., # 10 Exhibit F to Komorowski Decl., # 11 Exhibit G to Komorowski Decl., # 12 Exhibit H to Komorowski Decl., # 13 Exhibit I to Komorowski Decl., # 14 Exhibit J to Komorowski Decl., # 15 Exhibit K to Komorowski Decl., # 16 Exhibit L to Komorowski Decl., # 17 Exhibit M to Komorowski Decl., # 18 Exhibit N to Komorowski Decl., # 19 Exhibit O to Komorowski Decl.)(Komorowski, Peter) (Entered: 01/29/2020)

02/12/2020 293 RESPONSE in Opposition re 292 MOTION for Other Relief Motion for Leave to Serve Additional Discovery filed by Barbara Barrett, Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump. (Attachments: # 1

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 45 of 46

02/14/2020
02/19/2020
02/20/2020
02/26/2020
03/04/2020 04/09/2020 04/09/2020 04/14/2020 04/23/2020 04/23/2020 04/23/2020 04/24/2020

Gerardi Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Proposed Order)(Gerardi, Michael) (Entered: 02/12/2020)
294 NOTICE by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump re 281 Response in Opposition to Motion, 271 Order, 177 Local Rule,,,,,,,, 276 Supplemental MOTION for Other Relief Supplemental Brief Regarding Remanded Discovery Proceedings, 285 Reply to Response to Motion,, Notice of Production of Documents and Notice of Supplemental Authority Concerning Plaintiffs' Pending Motion to Compel Deliberative Materials (Enlow, Courtney) (Entered: 02/14/2020)
295 PAPERLESS ORDER: The Court is in receipt of ECF 294 regarding recently produced discovery. The parties are directed to file a joint updated status report within 14 days of this Order, advising the Court as to what discovery remains outstanding in light of recent developments in Doe v. Esper and Karnoski v. Trump as set forth in ECF 294. Signed by Magistrate Judge A. David Copperthite on 2/19/2020. (Chambers) (Entered: 02/19/2020)
296 RESPONSE re 294 Notice (Other),, Plaintiffs' Response to Defendants' Notice of Production of Documents and Notice of Supplemental Authority filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Komorowski, Peter) (Entered: 02/20/2020)
297 −SEALED−REPLY to Response to Motion re 292 MOTION for Other Relief Motion for Leave to Serve Additional Discovery filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood. (Attachments: # 1 Affidavit Komorowski Decl., # 2 Exhibit A to Komorowski Decl., # 3 Exhibit B to Komorowski Decl.)(Komorowski, Peter) (Entered: 02/26/2020)
298 STATUS REPORT (JOINT) by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood(Kies, Marianne) (Entered: 03/04/2020)
299 MEMORANDUM OPINION. Signed by Magistrate Judge A. David Copperthite on 4/9/2020. (kw2s, Deputy Clerk) (Entered: 04/10/2020)
300 ORDER granting 177 Motion to Compel. Signed by Magistrate Judge A. David Copperthite on 4/9/2020. (kw2s, Deputy Clerk) (Entered: 04/10/2020)
301 MOTION to Stay re 299 Memorandum Opinion, 300 Order by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 04/14/2020)
302 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump re 299 Memorandum Opinion, 300 Order (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Text of Proposed Order)(Enlow, Courtney) (Entered: 04/23/2020)
303 −SEALED − NOTICE of Filing Under Seal Exhibits B−F to Objections to Magistrate Judge's Opinion and Order by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump re 302 Appeal of Magistrate Judge Decision to District Court, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Enlow, Courtney) (Entered: 04/23/2020)
304 Consent MOTION to Seal by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump (Attachments: # 1 Text of Proposed Order)(Enlow, Courtney) (Entered: 04/23/2020)
305 ORDER granting 304 Consent Motion for Leave to File Documents Under Seal. Signed by Judge George Levi Russell, III on 4/24/2020. (krs, Deputy Clerk) (Entered: 04/24/2020)

Case: 1:17-cv-2459 As of: 06/25/2020 12:26 PM EDT 46 of 46

04/24/2020 05/05/2020

306 RESPONSE in Opposition re 301 MOTION to Stay re 299 Memorandum Opinion, 300 Order filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Komorowski, Peter) (Entered: 04/24/2020)
307 NOTICE by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump re 301 MOTION to Stay re 299 Memorandum Opinion, 300 Order , 302 Appeal of Magistrate Judge Decision to District Court, NOTICE OF PARTIAL WITHDRAWAL OF OBJECTIONS TO MAGISTRATE JUDGES OPINION AND ORDER (Enlow, Courtney) (Entered: 05/05/2020)

05/07/2020

308 RESPONSE re 302 Appeal of Magistrate Judge Decision to District Court, filed by American Civil Liberties Union of Maryland, Inc., Niko Branco, Kate Cole, Teddy D'Atri, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Seven Ero George, Teagan Gilbert, Tommie Parker, Jane Roe 1, Jane Roe 2, Brock Stone, Ryan Wood.(Komorowski, Peter) (Entered: 05/07/2020)

05/08/2020 309 REPLY to Response to Motion re 301 MOTION to Stay re 299 Memorandum Opinion, 300 Order filed by Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump.(Enlow, Courtney) (Entered: 05/08/2020)

05/21/2020

310 RESPONSE re 308 Response, 302 Appeal of Magistrate Judge Decision to District Court, DEFENDANTS REPLY IN SUPPORT OF OBJECTIONS TO THE MAGISTRATE JUDGES MEMORANDUM OPINION AND ORDER filed by Barbara Barrett, Mark Esper, Kevin McAleenan, Ryan McCarthy, Karl Schultz, Richard Spencer, Donald J. Trump.(Enlow, Courtney) (Entered: 05/21/2020)

 
 Case 1:17-cv-02459-MJG Document 1 Filed 08/28/17 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

PETTY OFFICER FIRST CLASS BROCK STONE,

)

(Anne Arundel County, Maryland)

)

STAFF SERGEANT KATE COLE,

)

SENIOR AIRMAN JOHN DOE,

)

AIRMAN FIRST CLASS SEVEN ERO GEORGE,

)

PETTY OFFICER FIRST CLASS TEAGAN GILBERT, )

TECHNICAL SERGEANT TOMMIE PARKER,∗

)

and

)

AMERICAN CIVIL LIBERTIES UNION

)

OF MARYLAND, INC.,

)

3600 Clipper Miller Road, Suite 350

)

Baltimore, MD 21211

)

)

Plaintiffs,

)

v.

)

)

DONALD J. TRUMP,

)

in his official capacity as

)

President of the United States

)

1600 Pennsylvania Avenue NW

)

Washington, D.C. 20500

)

)

JAMES MATTIS,

)

in his official capacity as Secretary of Defense

)

U.S. Department of Defense

)

1400 Defense Pentagon

)

Washington, D.C. 20301

)

)

RYAN McCARTHY,

)

in his official capacity as Acting Secretary of the

)

U.S. Department of the Army

)

101 Army Pentagon

)

Washington, D.C. 20301

)

)

RICHARD SPENCER,

)

in his official capacity as Secretary of the

)

Case No. ________________

∗ The individual Plaintiffs concurrently move to waive their obligations under Local Rule 102.2(a) to provide addresses, on the basis of their objectively reasonable fear that publicizing their home addresses would subject Plaintiffs to harassment (potentially including violence) and threats. For similar reasons, Plaintiff John Doe is concurrently moving to proceed anonymously.

Case 1:17-cv-02459-MJG Document 1 Filed 08/28/17 Page 2 of 39

U.S. Department of the Navy

)

1200 Navy Pentagon

)

Washington D.C. 20350

)

)

HEATHER WILSON

)

in her official capacity as Secretary of the

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U.S. Department of the Air Force

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1690 Air Force Pentagon

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Washington, D.C. 20330

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Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

NATURE OF THE ACTION

1. Thousands of transgender service members are serving honorably in this

country’s Armed Forces. Some perform critical roles in intelligence analysis, disaster relief,

medical care, and pre-deployment training at bases in the United States. Others have deployed to

combat zones in Iraq and Afghanistan. Many transgender service members have received awards

for their service, and some have served for decades. All have answered the selfless call of service

to our nation by putting themselves in harm’s way to protect the rights and freedoms

fundamental to this country.

2. The individual plaintiffs in this case (“Individual Plaintiffs”) are just some of

those transgender service members. Petty Officer Stone has served in the U.S. Navy for 11 years,

including a nine-month deployment to Afghanistan, and is currently assigned to a unit at Fort

Meade, in Maryland. Staff Sergeant Cole has served in the U.S. Army for almost ten years,

including a one-year deployment to Afghanistan where she served as a team leader and

designated marksman. Senior Airman Doe has served for approximately six years on active duty

in the U.S. Air Force, where he was awarded “Airman of the Year” for his flight. Airman First

Class George has been enlisted in the Air National Guard since 2015. He is training as a nurse,

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and intends to seek a commission in the U.S. Army. Petty Officer Gilbert has served in the U.S. Navy for 13 years, including a one-year deployment to Afghanistan, and currently serves as an information and space systems technician. Technical Sergeant Parker served in the Marine Corps for four years and has served in the Air National Guard for 26 years, now working as a fuel technician.
3. At the culmination of a thorough process of research and analysis, the Department of Defense (“DoD”) concluded in 2016 that there was no basis for the military to exclude men and women who are transgender from openly serving their country, subject to the same fitness requirements as other service members. This review process carefully considered and rejected the notion that medical costs, military readiness, or other factors presented any plausible reason to discriminate against service members who are transgender, many of whom had already been serving with honor in silence for decades. Accordingly, the Secretary of Defense issued a directive (the “Open Service Directive”) that service members who are transgender be permitted to serve openly without fear of discharge; that these service members receive medically necessary healthcare, as do others who serve their country; and that, beginning on July 1, 2017, men and women who are transgender be permitted to enlist in the military subject to stringent enlistment standards.
4. On the morning of July 26, 2017, President Trump declared on Twitter that the Individual Plaintiffs and all other men and women who are transgender would no longer be allowed to continue serving in the military “in any capacity.” This pronouncement was posted under the handle @realDonaldTrump:
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5. The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump’s announcement, and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico.
6. On August 25, 2017, President Trump formalized his ban in a Memorandum for the Secretary of Defense and the Secretary of Homeland Security, with the subject “Military Service by Transgender Individuals” (the “Transgender Service Member Ban”). President Trump directed the Secretary of Defense to “return to” the pre-2016 policy of banning service by men and women who are transgender. President Trump further banned the use of government resources to fund “sex-reassignment surgical procedures” for service members regardless of cost
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or medical necessity. President Trump gave the Secretary of Defense six months to develop a plan to implement aspects of the Trump Transgender Service Member Ban, but its impacts are already being felt today.
7. As a consequence of the Transgender Service Member Ban, thousands of Americans already serving their country—many of whom publicly revealed that they are transgender after DoD formally welcomed their service in June 2016—have been told that they are no longer welcome. While the Pentagon develops a plan to involuntarily terminate their military service, men and women who are transgender will be singled out from other service members and denied medically necessary healthcare that is provided to everyone else. Other men and women who are transgender will be denied the opportunity to serve altogether, even if they could satisfy the stringent standards for enlistment applicable to all others seeking to serve.
8. Without input from the Department of Defense and Joint Chiefs of Staff, and without any deliberative process, President Trump cast aside the rigorous, evidence-based policy of the Open Service Directive, and replaced it with discredited myths and stereotypes, uninformed speculation, and animus against people who are transgender.
9. Plaintiffs bring this action to right this unconstitutional wrong. THE PARTIES
Plaintiff Stone 10. Petty Officer First Class Brock Stone is a 34-year-old man. 11. Petty Officer Stone is assigned to a unit at Fort Meade, Maryland through at least August 2020, and resides off-base with his wife in Anne Arundel County. 12. Petty Officer Stone has served in the U.S. Navy for 11 years, including a ninemonth deployment to Afghanistan. Petty Officer Stone was awarded an achievement medal in
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connection with his deployment, and he has received multiple other commendations, including a flag letter of commendation and multiple recommendations for early promotion. He has received extensive and costly training and is skilled in his field.
13. Petty Officer Stone is transgender. 14. Petty Officer Stone publicly revealed his transgender status to military personnel in reliance upon DoD’s June 2016 Open Service Directive. 15. Pursuant to his evaluation by DoD medical personnel, Petty Officer Stone is undergoing hormone therapy as a medically necessary part of his gender transition. 16. Since arriving at Fort Meade in July 2017, Petty Officer Stone has received medically necessary treatment related to his gender transition at Walter Reed National Military Medical Center in Bethesda, Maryland. He was close to finalizing a medical treatment plan that included surgery at the time he was transferred to Fort Meade. Before President Trump issued his Transgender Service Member Ban, Petty Officer Stone planned and expected that his treatment plan at Fort Meade would include medically necessary surgery in 2018. 17. Petty Officer Stone is a member of the ACLU of Maryland. Plaintiff Cole 18. Staff Sergeant Kate Cole is a 27-year-old woman. 19. Staff Sergeant Cole is stationed at Fort Polk, Louisiana. 20. Staff Sergeant Cole has served in the U.S. Army for almost ten years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman. Staff Sergeant Cole currently works as a Cavalry Scout, where she operates with a tank unit. 21. Staff Sergeant Cole is transgender.
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22. Staff Sergeant Cole publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive.
23. Pursuant to her evaluation by DoD medical personnel, Staff Sergeant Cole is undergoing hormone therapy as a medically necessary part of her gender transition. She is scheduled to receive medically necessary surgery in the next few weeks.
Plaintiff Doe 24. Senior Airman John Doe is a 25-year-old man. 25. Senior Airman Doe is stationed at Little Rock Air Force Base, Arkansas. 26. Senior Airman Doe has served for approximately six years on active duty in the U.S. Air Force, where he is pursuing cryogenics certification. He was awarded “Airman of the Year” for his flight. 27. Senior Airman Doe has deployed to Qatar for a six-month deployment. 28. Senior Airman Doe is transgender. 29. Senior Airman Doe publicly revealed his transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 30. Pursuant to his evaluation by DoD medical personnel, Senior Airman Doe is undergoing hormone therapy as a medically necessary part of his gender transition and had planned to receive medically necessary surgery in the summer of 2017. 31. Following President Trump’s July 2017 tweets announcing the forthcoming Trump Transgender Service Member Ban, Senior Airman Doe was informed by e-mail from the medical command at the base where he was scheduled to undergo surgery that all gender transition-related surgeries, including his own, had been put on hold pending further DoD guidance.
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Plaintiff George 32. Airman First Class Seven Ero George is a 41-year-old man. 33. Airman First Class George is stationed at the Selfridge Air National Guard Base, Michigan. 34. Airman First Class George is in the Air National Guard, where he serves in the base security force. He is also a member of the base Honor Guard, performing military funeral honors for deceased veterans, retirees, and active duty members; providing dignified transfers; and performing color guard details. 35. Airman First Class George is transgender. 36. Airman First Class George publicly revealed his transgender status to military personnel in reliance upon DoD’s June 2016 Open Service Directive. 37. Pursuant to his evaluation by DoD medical personnel, Airman First Class George is undergoing hormone therapy as a medically necessary part of his gender transition and has undergone medically necessary surgery. 38. Airman First Class George intends to pursue a commission in the U.S. Army Nurse Corps, while he finishes a civilian degree in nursing. This effort to seek a commission in a different service would subject Airman First Class George to the Army’s accession policies, including the ban on accessions included in President Trump’s Transgender Service Member Ban. Plaintiff Gilbert 39. Petty Officer First Class Teagan Gilbert is a 31-year-old woman. 40. Petty Officer Gilbert is a reservist stationed in Phoenix, Arizona.
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41. Petty Officer Gilbert has served in the U.S. Navy for more than 13 years, including a one-year deployment to Afghanistan. She is currently in the Naval Reserve working as an information and space systems technician.
42. Petty Officer Gilbert is transgender. 43. Petty Officer Gilbert publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 44. Pursuant to her evaluation by DoD medical personnel, Petty Officer Gilbert is undergoing hormone therapy as a medically necessary part of her gender transition and plans to seek approval for medically indicated surgical treatment in the future. Plaintiff Parker 45. Technical Sergeant Tommie Parker is a 54-year-old woman. 46. Technical Sergeant Parker is stationed at Stewart Air National Guard Base, New York and has served in the Marine Corps for four years and the Air National Guard for 26 years, including deployments to Okinawa (with the Marine Corps) and Germany (with the Air National Guard). She now works as a fuel technician. 47. Technical Sergeant Parker is transgender. 48. Technical Sergeant Parker publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 49. Pursuant to her evaluation by DoD medical personnel, Technical Sergeant Parker is undergoing hormone therapy as a medically necessary part of her gender transition.
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Plaintiff ACLU of Maryland 50. Plaintiff American Civil Liberties Union of Maryland, Inc. (“ACLU of Maryland”) is an affiliate of the American Civil Liberties Union, a non-profit, nationwide, nonpartisan membership organization with over 1,500,000 members. 51. Plaintiff ACLU of Maryland’s growing membership comprises over 42,000 Maryland members, including one or more men and women who are transgender who are currently serving in the U.S. military or who intend to volunteer for service in the U.S. military. 52. The ACLU of Maryland litigates cases in which government officials have attempted to discriminate against men and women who are transgender, and therefore the ACLU of Maryland has a direct interest in challenging the ban at issue in this case. 53. The ACLU of Maryland’s interest in protecting both its members and other men and women who are transgender from discrimination on the basis of sex and transgender status is both germane and fundamental to the organization’s purpose of furthering the principles of liberty and equality embodied in the Constitution and the nation’s civil rights laws. Defendants 54. Defendant Donald J. Trump is the President of the United States. He is sued in his official capacity. In that capacity, on August 25, 2017, he issued the Transgender Service Member Ban. 55. Defendant James Mattis is the Secretary of Defense and is sued in his official capacity. DoD is responsible for providing the military forces needed to deter war and protect the security of the United States. At all times relevant to this Complaint, Defendant Mattis was acting as an employee and agent of the United States. In that capacity, Defendant Mattis is responsible for supervising the branches of the U.S. Armed Forces; for promulgating,
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implementing, and enforcing the policies and regulations that govern military service in all branches of the U.S. Armed Forces; and for ensuring the legality of these policies and regulations. In this role, he is responsible for the maintenance and enforcement of Department of Defense Instruction (“DoDI”) 1300.28, which establishes DoD policies regarding transgender service members.
56. Defendant Ryan McCarthy is the Acting Secretary of the Army and is sued in his official capacity. The Department of the Army is the DoD branch that defends the land mass of the United States, its territories, commonwealths, and possessions. At all times relevant to this Complaint, Defendant McCarthy was acting as an employee and agent of the United States. In that capacity, Defendant McCarthy has overall responsibility for the Army and for the Army’s development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Army publications and directives implementing DoD policy governing transgender service members.
57. Defendant Richard Spencer is the Secretary of the Navy and is sued in his official capacity. The Department of the Navy is the DoD branch that maintains, trains, and equips combat-ready maritime forces. At all times relevant to this Complaint, Defendant Spencer was acting as an employee and agent of the United States. In that capacity, Defendant Spencer has overall responsibility for the Navy and Marine Corps and for those services’ development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Navy and Marine Corps publications and directives implementing DoD policy governing transgender service members.
58. Defendant Heather Wilson is the Secretary of the Air Force and is sued in her official capacity. The Department of the Air Force is the DoD branch that provides the U.S.
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military with air and space capability. At all times relevant to this Complaint, Defendant Wilson was acting as an employee and agent of the United States. In that capacity, Defendant Wilson has overall responsibility for the Air Force and for the Air Force’s development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Air Force publications and directives implementing DoD policy governing transgender service members.
JURISDICTION AND VENUE 59. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the action arises under the United States Constitution, the laws of the United States, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02. 60. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1) because Plaintiff Stone and Plaintiff ACLU of Maryland reside in this District, and because a substantial part of the events or omissions giving rise to this action occurred and are occurring in this District.
FACTUAL ALLEGATIONS A. Current Military Service by Men and Women Who Are Transgender 61. Transgender Americans have served, and continue to serve, in the military with distinction, including in combat. As of May 2014, the Williams Institute at UCLA School of Law estimated that men and women who are transgender account for approximately 8,800 active members of the U.S. Armed Forces. This figure may be even higher today in light of DoD’s June 2016 Open Service Directive regarding transgender service. 62. Men and women who are transgender also serve openly in civilian roles supporting the U.S. military, including as contractors in combat zones.
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B. Medical Treatment for Transgender Service Members 63. Pursuant to DoDI 1300.28 (§ 1.2(a)), “[t]ransgender persons . . . are subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming standards, deployability, and retention.” 64. The American Psychiatric Association and every other major mental health organization recognize that being transgender is not a mental disorder and implies no impairment in judgment, stability, reliability, or general social or vocational capabilities. 65. Some men and women who are transgender, however, experience “gender dysphoria,” a diagnostic term used to describe the incongruence between a person’s gender identity and the gender that they were assigned at birth where such incongruence is accompanied by clinically significant distress. 66. As with all medical conditions, varying courses of treatment for gender dysphoria may be medically necessary depending on the needs of the individual, as determined in consultation with medical professionals. These treatments, often referred to as transition-related care, may include social role transition, hormone therapy, and surgery (sometimes called “sex reassignment surgery” or “gender confirmation surgery”). The goal of the treatment is to align an individual’s outward expression of gender, body, and biochemistry with the person’s gender identity in order to eliminate the clinically significant distress. 67. According to every major medical organization and the overwhelming consensus among medical experts, treatments for gender dysphoria, including surgical procedures, are effective, safe, and medically necessary when clinically indicated to alleviate the distress caused by the condition.
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68. In accordance with that medical consensus and contemporary standards of care, Medicare, Medicaid, and private insurance policies across the country routinely cover transitionrelated care as medically necessary treatment.
69. The medical needs of transgender service members with gender dysphoria are not materially different from those of other service members. For example, the military provides routine psychological care to all service members around the globe, including men and women who are transgender. It also provides long-term hormone treatments for persons with diabetes and other endocrine disorders, and stocks cross-sex hormones in its dispensaries in the United States and abroad. The military further provides medically-indicated surgery to all service members, including chest and breast reconstruction, hysterectomy, and genital reconstruction, among other procedures that might be prescribed to treat gender dysphoria.
C. History of DoD Policy on Transgender Military Service 1) Historical Regulatory Ban
70. Starting some time before 1981, DoD maintained and enforced a policy barring men and women who are transgender from enlisting or being retained in the U.S. Armed Forces.
71. That policy, codified in former DoDI 1332.38,1 prohibited men and women who are transgender from serving openly, whether or not they required any ongoing medical treatment and even if they were fit to serve. In contrast, non-transgender individuals, including those requiring medical interventions, were allowed to remain in military service if they could demonstrate their fitness to serve.
1 DoDI 1332.38 applied to all service members and listed specific medical conditions and diagnoses that (1) required referral for medical evaluation of fitness for continued service, or (2) were ineligible for disability evaluation (and resulted in placement on a track for administrative separation). Transgender status was in the latter category.
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72. Notably, in order to establish medical fitness, service members do not have to prove that they are universally deployable. According to DoDI 1332.38, “[i]nability to perform the duties of his or her office, grade, rank, or rating in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of unfitness.”
73. Neither former DoDI 1332.38 nor the various service branch regulations that implemented it articulated a rationale for presuming that being transgender renders a service member administratively unfit.
2) DoD Revisits and Studies the Regulations Regarding Transgender Military Service
74. On July 13, 2015, then-Secretary of Defense Ashton Carter issued two directives aimed at updating DoD’s existing transgender service member regulations, which the Secretary described as “an outdated, confusing, inconsistent approach that’s contrary to our value of service and individual merit [and that is] causing uncertainty that distracts commanders from our core missions.” Statement by Secretary of Defense Ash Carter on DOD Transgender Policy, DoD (July 13, 2015), https://www.defense.gov/News/News-Releases/News-ReleaseView/Article/612778/.
75. The Secretary’s first directive established a working group to study “the policy and readiness implications of welcoming transgender persons to serve openly.” The Acting Under Secretary of Defense for Personnel and Readiness led the group, which was comprised of leaders from the armed services; the Joint Staff; the service secretaries; and personnel, training, readiness and medical specialists from across DoD (with input from transgender service members, outside expert groups, and medical professionals outside the department).
76. The Secretary’s second directive ordered that “decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves
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as transgender be elevated to” the Under Secretary, “who will make determinations on all potential separations.”
77. From July 2015 to June 2016, members of the working group and other senior leaders in DoD met with transgender service members deployed throughout the world, including individuals serving on aircrafts, submarines, and operating bases, as well as at the Pentagon. These individuals were determined to be high-quality additions to the U.S. Armed Forces, and DoD leaders observed that the ambiguity of existing regulations regarding the service of transgender individuals put both the service members and their commanders in a difficult and fundamentally unfair position.
78. The DoD working group also carefully examined medical, legal, and policy considerations associated with permitting transgender service members to serve openly in the Armed Forces. The working group reviewed data, studied the many allied militaries that already permit transgender service members to serve openly, and considered analogous examples from the public and private sectors in the United States. DoD observed, among other things, that the provision of medical care for men and women who are transgender is becoming common and normalized in public and private sectors alike.
79. In conjunction with its working group efforts, DoD commissioned the RAND Corporation to analyze relevant data and studies to assist with DoD’s own review. RAND’s work was “sponsored by the Office of the Under Secretary of Defense for Personnel and Readiness and conducted within the Forces and Resources Policy Center of the RAND National Defense Research Institute, a federally funded research and development center sponsored by the Office of the Secretary of Defense, the Joint Staff, the Unified Combatant Commands, the Navy, the Marine Corps, the defense agencies, and the defense Intelligence Community.” Agnes Gereben
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Schaefer et al., Assessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation, at iii–iv (2016) (hereinafter, “RAND Report,” attached as Exhibit A to this Complaint).
80. Based on various factors, including its analysis of allied militaries and the expected rate at which American transgender service members would require medical treatment that would impact their fitness for duty or deployability, RAND concluded that there would be “minimal” readiness impacts from allowing transgender service members to serve openly. See id. at xii, 2–3. Specifically, RAND estimated that 10 to 130 active component members each year could have reduced deployability as a result of gender transition-related treatments. This amount is negligible relative to the 102,500 non-deployable soldiers in the Army alone in 2015, 50,000 of them in the active component. Impact of Transgender Personnel on Readiness and Health Care Costs in the U.S. Military Likely to Be Small, RAND Press Room (June 30, 2016), https://www.rand.org/news/press/2016/06/30.html.
81. RAND concluded that health care costs would represent “an exceedingly small proportion” of both Active Component and overall DoD health care expenditures. RAND Report, at xi–xii, 31. In so concluding, RAND observed that “[b]oth psychotherapy and hormone therapies are [already] available and regularly provided through the military’s direct care system,” and “[s]urgical procedures quite similar to those used for gender transition are already performed within the MHS for other clinical indications.” Id. at 8. For instance, “[r]econstructive breast/chest and genital surgeries are currently performed on patients who have had cancer, been in vehicular and other accidents, or been wounded in combat.” Id.
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3) Decision to Permit Transgender Service Members to be Subject to the Same Fitness Standards as Other Service Members
82. Based on input from the DoD’s working group and the RAND Corporation, including information and recommendations from the service secretaries and other Pentagon officials, Secretary Carter issued a directive and memorandum to all military departments regarding military service for transgender service members on June 30, 2016. The Open Service Directive announced that, “[e]ffective immediately, no otherwise qualified Service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity.” Further, “[t]ransgender Service members will be subject to the same standards as any other Service member of the same gender.” Thus, “[a] Service member whose ability to serve is adversely affected by a medical condition or medical treatment related to their gender identity should be treated, for purposes of separation and retention, in a manner consistent with a Service member whose ability to serve is similarly affected for reasons unrelated to gender identity or gender transition.” The Open Service Directive is attached as Exhibit B.
83. Citing the RAND Report, the Secretary of Defense explained the three principal reasons underlying the Open Service Directive: (1) the military’s need to “avail ourselves of all talent possible” in order to remain “the finest fighting force the world has ever known”; (2) the Secretary’s duty to transgender service members and their commanders to “provide them both with clearer and more consistent guidance than is provided by current policies”; and (3) as a matter of principle, “Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so.” Department of Defense Press Briefing by Secretary Carter on Transgender Service Policies in the Pentagon Briefing Room (June 30,
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2016), https://www.defense.gov/News/Transcripts/Transcript-View/Article/822347/departmentof-defense-press-briefing-by-secretary-carter-on-transgender-service/.
84. The Open Service Directive was to be implemented over the course of a 12-month period, from June 2016 to June 2017. Although transgender service members already in the military on June 30, 2016 were allowed to serve openly as soon as the Open Service Directive took effect, accession of transgender personnel—that is, the process of bringing new enlisted recruits and officer candidates into the military—did not begin immediately. The Policy gave the Department of Defense and the military services approximately one year to conduct training, and to start accepting transgender members into the military beginning on July 1, 2017.
85. The enlistment requirements were stringent, providing, inter alia, that a history of gender dysphoria was disqualifying unless a licensed medical provider certified that the applicant had been stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months.
86. On September 30, 2016, DoD issued an “Implementation Handbook” to “assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand Department policy allowing the open service of transgender Service members.” Transgender Service in the U.S. Military: An Implementation Handbook, DoD, at 8 (Sept. 30, 2016), available at https://www.defense.gov/Portals/1/features/2016/0616_policy/DoDTGHandbook_093016.pdf?v er=2016-09-30-160933-837. The Handbook explained to transgender service members that DoD’s revised transgender service member policy “ensures your medical care is brought into the military health system (MHS), protects your privacy when receiving medical care, and establishes a structured process whereby you may transition gender when medically necessary.”
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Id. at 17. The Handbook encouraged transgender service members to be “open and honest with your leadership when discussing the gender transition process,” and further encouraged transgender service members to disclose their transgender status to colleagues. Id. at 20.
87. The Handbook also provided guidance to commanders and non-transgender service members. Id. at 25–33. The topics in the Handbook include an overview of the gender transition approval process; guidance specific to transgender service members, commanders, and non-transgender service members, including communication, medical care, deployment and physical fitness, and privacy; frequently asked questions and answers; various potential scenarios and guidance on how to address them; and resources for further information. See generally id.
88. Implementation training began shortly after the policy was announced. This training involved commanders, medical personnel, the operating forces, and recruiters. The training was directed to the entire joint force, in the United States and around the world.
89. During this same timeframe, each of the service branches conducted a comprehensive review of regulations governing medical care, administrative separations, and manpower management, in order to ensure that service-level issuances were consistent with the DoD instructions.
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Who Are Transgender 90. On the morning of July 26, 2017, President Trump posted the following announcement on Twitter, under the handle @realDonaldTrump:
91. The Trump Administration has provided no evidence that this about-face in policy was supported by any study of the issue or any consultation with military officers, DoD officials, other military experts, or medical or legal experts.
92. Press reports indicate that President Trump’s motivations in abruptly announcing a transgender ban were largely political, reflecting a desire to placate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender in order to gain votes to pass a defense spending bill that included money to build a border wall with Mexico—a well-known priority for President Trump. Rachel Blade & Josh Dawsey, Inside Trump’s Snap Decision to Ban Transgender Troops, Politico (July 26, 2017, 2:07 PM), http://www.politico.com/story/2017/07/26/trump-transgender-military-ban-behind-the-scenes240990; see also, e.g., Tom Porter, Transgender Military Ban: The Rise of Anti-LGBT Hate
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Groups in Trump’s White House, Newsweek (July 26, 2017, 12:47 PM), http://www.newsweek.com/anti-lgbt-hate-groups-transgender-military-ban-trump-642218; Asawin Suebsaeng et al., Trump Bows to Religious Right, Bans Trans Troops, The Daily Beast (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-banstrans-troops.
93. According to subsequent media reports, “President Donald Trump’s White House and Defense Department lawyers had warned him against the transgender military ban for days” and were “startl[ed]” when they “learned of the change in a series of tweets.” Josh Dawsey, John Kelly’s Big Challenge: Controlling the Tweeter in Chief, Politico (Aug. 4, 2017, 6:03 PM), http://www.politico.com/story/2017/08/04/trump-john-kelly-challenge-twitter-241343.
94. President Trump’s actions immediately caused the Individual Plaintiffs and other transgender service members to fear for their careers, the well-being of their family members and dependents, their health care and, in some cases, their safety.
95. The President’s actions were also experienced by the Individual Plaintiffs as a betrayal, in light of their actions to come out publicly to military personnel in reliance on the June 2016 directive.
96. Close to 60 retired generals and flag officers from various military branches also found President Trump’s tweet to undermine national security and military readiness, stating:
This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie . . . The military conducted a thorough research process on this issue and concluded that inclusive policy for transgender troops promotes readiness. . . . We could not agree more.
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Fifty-Six Retired Generals and Admirals Warn that President Trump’s Anti-Transgender Tweets,
if Implemented, Would Degrade Military Readiness, Palm Ctr. (Aug. 1, 2017),
http://www.palmcenter.org/fifty-six-retired-generals-admirals-warn-president-trumps-anti-
transgender-tweets-implemented-degrade-military-readiness/.
97. Members of Congress were similarly “troubled” by President Trump’s tweet on a
bipartisan basis, with one Republican lawmaker (and former Navy SEAL) issuing the following
statement:
I am troubled that [DoD] seemed to be unaware of this potential policy change and how it was made public. I understand the DoD is in the middle of a review of relevant policies and I believe this ban is premature. There are heroic military members willing to put their lives on the line and give the ultimate sacrifice on our behalf, regardless of their gender identity. I support the ability for those who meet all military requirements, medical and otherwise, to have the opportunity to serve our great country.
See Rep. Scott Taylor (R-Va.), Statement on Trump Transgender Ban (July 26, 2017),
https://taylor.house.gov/media/press-releases/statement-trump-transgender-ban.
98. Senator John McCain, Chairman of the Senate Committee on Armed Services;
also repudiated President Trump’s announcement, stating:
The Department of Defense has already decided to allow currentlyserving transgender individuals to stay in the military, and many are serving honorably today. Any American who meets current medical and readiness standards should be allowed to continue serving. There is no reason to force service members who are able to fight, train, and deploy to leave the military—regardless of their gender identity. We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so—and should be treated as the patriots they are.
See Sen. John McCain (R-Ariz.), Statement by SASC Chairman John McCain on Transgender
Americans in the Military (July 26, 2017),
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https://www.mccain.senate.gov/public/index.cfm/2017/7/statement-by-sasc-chairman-johnmccain-on-transgender-americans-in-the-military.
99. The Department of Defense declined comment on President Trump’s policy announcement, referring questions to the White House.
100. The Secretary of Defense was on vacation at the time of President Trump’s announcement on Twitter.
E. The Transgender Service Member Ban 101. Early Friday evening on August 25, 2017, President Trump issued his Transgender Service Member Ban. A copy is attached as Exhibit C. 102. The Transgender Service Member Ban states that in President Trump’s own “judgment,” DoD’s decision to adopt the Open Service Directive “failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.” 103. The Transgender Service Member Ban therefore “direct[s]” the Secretary of Defense and the Secretary of Homeland Security “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016,” until President Trump is personally persuaded that a change is warranted. Transgender Service Member Ban § 1(b). 104. The Transgender Service Member Ban orders that the policy banning enlistment of men and women who are transgender be extended, until a recommendation to the contrary is made “that I find convincing.” Id. § 2(a). The Transgender Service Member Ban further orders a “halt” to the use of DoD resources “to fund sex-reassignment surgical procedures for military
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personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Id. § 2(b).
105. The Transgender Service Member Ban specifies that provisions banning men and women who are transgender from enlisting will take effect on January 1, 2018 (the date Defendant Mattis’s directive delaying accessions will expire). It further provides that the provisions banning existing transgender service members from continued service and banning medically necessary healthcare will take effect on March 23, 2018. Id. § 3.
106. The Transgender Service Member Ban further directs the Secretary of Defense, in consultation with the Secretary of Homeland Security, to submit to President Trump by February 21, 2018, a plan to implement the Transgender Service Member Ban and “determine how to address transgender individuals currently serving in the United States military.” Id. § 3. The Transgender Service Member Ban gives the Secretary of Defense discretion to determine how to implement the Ban, but it does not leave discretion for the Secretary of Defense to allow currently serving members who are transgender to continue to serve indefinitely.
F. Fundamental Contradiction Between Transgender Service Member Ban and DoD’s Own Considered Conclusions
107. Although the Transgender Service Member Ban purports to be based on President Trump’s “judgment,” that judgment appears to reflect nothing more than uninformed speculation, myths, and stereotypes that have already been rebutted by an extensive and rigorous evidencebased process.
108. For example, as justification for the Transgender Service Member Ban, President Trump stated that allowing men and women who are transgender to continue serving would be disruptive. But the 2016 study commissioned by DoD found that a transgender service member’s care would have a substantial impact on readiness only if (1) that service member worked in an
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“especially unique” military occupation, (2) that occupation was “in demand at the time of transition,” and (3) the service member needed to be available for “frequent, unpredicted mobilizations.” RAND Report, at 43. “Having completed medical transition, a service member could resume activity in an operational unit if otherwise qualified.” Id. Upon information and belief, the DoD’s own working group reached similar conclusions. The American Medical Association similarly adopted a resolution that “there is no medically valid reason to exclude transgender individuals from service in the [United States] military.”
109. Further, high-ranking military personnel have indicated that the Transgender Service Member Ban—not the Open Service Directive—will cause serious disruption to the Armed Forces. See Fifty-Six Retired Generals and Admirals Warn that President Trump’s AntiTransgender Tweets, if Implemented, Would Degrade Military Readiness, supra (“This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie, as well as non-transgender peers who would be forced to choose between reporting their comrades or disobeying policy. As a result, the proposed ban would degrade readiness[.]”) (emphases added)).
110. President Trump has similarly invoked alleged concerns about “unit cohesion.” The RAND study noted that “[t]he underlying assumption [of these alleged concerns] is that if service members discover that a member of their unit is transgender, this could inhibit bonding within the unit, which, in turn, would reduce operational readiness.” Id. at 44.
111. To study the validity of this argument, RAND looked to, among other things, the experiences of foreign countries that permit open transgender military service. There are 18 such countries: Australia, Austria, Belgium, Bolivia, Canada, the Czech Republic, Denmark, Estonia,
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Finland, France, Germany, Israel, the Netherlands, New Zealand, Norway, Spain, Sweden, and the United Kingdom. Observing that “there has been no significant effect of openly serving transgender service members on cohesion, operational effectiveness, or readiness” in foreign militaries that permit open transgender service, and that “direct interactions with transgender individuals significantly reduce negative perceptions and increase acceptance,” the RAND study concluded: “[W]e anticipate a minimal impact on readiness from allowing transgender personnel to serve openly.” Id. at 44–45, 47. Upon information and belief, the DoD’s own working group reached similar conclusions.
112. Senator Tammy Duckworth—an Iraq War Veteran, Purple Heart recipient and former Assistant Secretary of the Department of Veterans Affairs—has explained that the Transgender Service Member Ban, not the Open Service Directive, would “harm our military readiness”:
When I was bleeding to death in my Black Hawk helicopter after I was shot down, I didn’t care if the American troops risking their lives to help save me were gay, straight, transgender, black, white or brown. All that mattered was they didn’t leave me behind. If you are willing to risk your life for our country and you can do the job, you should be able to serve—no matter your gender identity or sexual orientation. See Sen. Tammy Duckworth (D-Ill.), Duckworth Statement on Reports Trump Administration Directing DOD to Discriminate Against Transgender Servicemembers (Aug. 24, 2017), https://www.duckworth.senate.gov/content/duckworth-statement-reports-trump-administrationdirecting-dod-discriminate-against. 113. Finally, President Trump claimed that allowing transgender service members to continue service would be too expensive. The RAND Report’s study found to the contrary. Namely, “even in the most extreme scenario that we were able to identify using the private
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health insurance data, we expect only a 0.13-percent ($8.4 million out of $6.2 billion) increase in [active component] health care spending.” RAND Report, at 36. By contrast, total military spending on erectile dysfunction medicines amounts to $84 million annually—ten times the cost of annual transition-related medical care for active duty transgender service members. Patricia Kime, DoD Spends $84M a Year on Viagra, Similar Meds, Military Times (Feb. 13, 2015), http://www.militarytimes.com/pay-benefits/military-benefits/health-care/2015/02/13/dod-spends84m-a-year-on-viagra-similar-meds/.
114. An August 2017 report by the Palm Center concluded that implementing the Transgender Service Member Ban will cost $960 million. See Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (Aug. 2017), available at http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf.
G. Immediate and Irreparable Harm from the Transgender Service Member Ban
115. The Individual Plaintiffs and other transgender service members face immediate and irreparable harm as a result of the Transgender Service Member Ban.
116. Each Individual Plaintiff and other transgender service members suddenly face the reality that, despite their years of commitment and training, their careers will prematurely end and various benefits will be permanently unavailable. Terminating the active service of Plaintiffs and other transgender service members would also adversely affect their retirement benefits, and could in some cases preclude eligibility for retirement benefits altogether.
117. Plaintiff Petty Officer Stone has served in the U.S. Navy for 11 years, which included a nine-month deployment to Afghanistan. Petty Officer Stone was awarded an achievement medal in connection with his deployment, and he has received multiple other commendations, including a flag letter of commendation and multiple recommendations for early
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promotion. Despite this lengthy service and deployment, and the fact that he has received extensive and costly training in his field, he faces the prospect that he will be forced out of the U.S. Navy pursuant to the Transgender Service Member Ban.
118. Plaintiff Staff Sergeant Cole has served in the U.S. Army for nearly a decade, which included a one-year deployment to Afghanistan. Despite her lengthy service, experience as a team leader, designated marksman, and Cavalry Scout, she faces the prospect that she will be forced out of the U.S. Army pursuant to the Transgender Service Member Ban.
119. Plaintiff Senior Airman Doe has served for approximately six years in the U.S. Air Force, which included a deployment to Qatar. Despite his service and the fact that he was awarded “Airman of the Year” for his flight, he faces the prospect that he will be forced out of the U.S. Air Force pursuant to the Transgender Service Member Ban.
120. Plaintiff Airman First Class George has served in the U.S. Air National Guard for two and a half years and intends to pursue a commission in the U.S. Army. Despite his service as base security force, he will be prohibited from commissioning in the U.S. Army and faces the prospect that he will be forced out of the U.S. Air National Guard pursuant to the Transgender Service Member Ban.
121. Plaintiff Petty Officer Gilbert has served in the U.S. Navy for 13 years, which included a one-year deployment to Afghanistan. Despite her lengthy service and her specialized knowledge as an information and space systems technician, she faces the prospect that she will be forced out of the U.S. Navy pursuant to the Transgender Service Member Ban.
122. Plaintiff Technical Sergeant Parker has served in the U.S. Marine Corps for four years and the U.S. Air National Guard for 26 years, which included deployments to Japan and
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Germany. Despite her lengthy service, she faces the prospect that she will be forced out of the U.S. Air National Guard pursuant to the Transgender Service Member Ban.
123. In addition, many transgender service members, including Plaintiffs Stone, Cole, Doe, Gilbert, and Parker, will be denied medically necessary surgical treatment that, in many cases, has already been recommended by military medical professionals. Indeed, a scheduled medical procedure for Plaintiff Doe has already been cancelled.
124. Each transgender service member who is denied medically necessary surgical treatment will suffer serious harm.
125. The Individual Plaintiffs and other transgender service members also face extraordinary stress, uncertainty, and stigma based on the decision to ban transgender individuals from service and single out their medical care for a ban on coverage. While waiting for their status to be “addressed” as the Trump Transgender Service Member Ban is implemented, Plaintiffs face significant uncertainty and concern about their careers and their futures, must plan for potential discharge, and experience the stigma of being told their service to their country is not valued or wanted, and that their medical care needs are not real or necessary. Upon information and belief, scheduled medical procedures are already being cancelled and some service members are being told that they may not reenlist.
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LEGAL CLAIMS COUNT I (Against All Defendants) VIOLATION OF THE EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE 126. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 127. The equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution protects all persons, including members of the Armed Forces. 128. President Trump issued the Transgender Service Member Ban, directing that: (i) current service members who are transgender are barred from serving in the U.S. Armed Forces, irrespective of their ability to demonstrate their fitness to serve (§ 1(b)); (ii) enlistment in the military by men and women who are transgender is prohibited, irrespective of their ability to demonstrate their fitness to serve (§ 2(a)); and (iii) currently serving transgender service members are denied medically necessary surgical care, including in cases where individuals are stable in their gender transition and able to demonstrate their fitness to serve on the same basis as other service members (§ 2(b)). 129. Each of these three policies—and the Transgender Service Member Ban as a whole—violates Plaintiffs’ right to equal protection.
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Case 1:17-cv-02459-MJG Document 1 Filed 08/28/17 Page 32 of 39
i. Ban on Existing Service Members (Directive Section 1(b)) 130. Section 1(b) of the Transgender Service Member Ban directs the Secretary of Defense to “return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016,” indefinitely. 131. In so stating, Section 1(b) establishes a broad ban on service by men and women who are transgender, with immediate and longer-term impacts on those currently serving. 132. Section 3 of the Transgender Service Member Ban requires the Secretary of Defense, in implementing the Transgender Service Member Ban, to determine by February 21, 2018 how to “address” currently serving transgender men and women. Although these service members are permitted to continue serving until this determination is made, transgender service members are immediately impacted by the Transgender Service Member Ban. 133. All service members who are transgender immediately have grave reason to fear for their careers, and must reevaluate career plans that were premised on the Open Service Directive. Individual Plaintiffs and other service members who are transgender experience significant stress and psychological harm caused by this impending threat to their military service. 134. Service members who are transgender are also immediately injured by the stigma created by the Transgender Service Member Ban. Even if some transgender service members are permitted to continue serving beyond March 23, 2018, they now serve in a military where the Commander-in-Chief has announced that their service is unwanted and unwelcome, and that their medical care will be withheld. Any transgender service member permitted to remain in his or her position will necessarily be treated as, and experience the harms associated with, a form of second-class status.
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ii. Ban on New Enlistments (Directive Section 2(a)) 135. Section 2(a) of the Transgender Service Member Ban directs the Secretary of Defense to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018.” 136. In so stating, Section 2(a) prohibits men and women who are transgender from enlisting and serving openly in the United States Armed Forces. The Open Service Directive had determined that men and women who are transgender would not be disqualified, subject to rigorous accession criteria, at the end of a phase-in period on July 1, 2017. Defendant Mattis delayed new enlistments for a further six months on the asserted basis that further study was warranted. President Trump has now acted to ban enlistment without awaiting the results of any study.
iii. Ban on Medically Necessary Care (Directive Section 2(b)) 137. Section 2(b) of the Transgender Service Member Ban directs the Secretary of Defense to “halt all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel,” except “to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” 138. Transgender service members who require medically necessary care to treat gender dysphoria are entitled to care on an equal basis to what is provided to non-transgender service members with medical conditions requiring comparable medically necessary care. 139. Many of the same or substantially equivalent surgical procedures banned by the Transgender Service Member Ban are covered by the military when used to treat other serious medical conditions. The Transgender Service Member Ban singles out transgender service
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members for different treatment by denying them coverage for medically necessary care that is

inherently related to their transgender status and gender nonconformity.

*

*

*

140. The Defendants’ actions of adopting, implementing, and enforcing each of the

three policies in the Transgender Service Member Ban discriminates against Individual Plaintiffs

and other men and women who are transgender on the basis of sex, which is subject to, and fails,

heightened scrutiny under the Fifth Amendment.

141. The Defendants’ actions of adopting, implementing, and enforcing each of the

three policies in the Transgender Service Member Ban discriminates against the Individual

Plaintiffs and other men and women who are transgender on the basis of their transgender status,

which is independently subject to, and fails, heightened scrutiny under the Fifth Amendment.

a. Men and women who are transgender, as a class, have historically been subject to

discrimination.

b. Men and women who are transgender, as a class, have a defining characteristic

that frequently bears no relation to an ability to perform or contribute to society.

c. Men and women who are transgender, as a class, exhibit immutable or

distinguishing characteristics that define them as a discrete group.

d. Men and women who are transgender, as a class, are a minority with relatively

little political power.

142. The Defendants’ actions of adopting, implementing, and enforcing each of the

three policies in the Transgender Service Member Ban discriminates against Plaintiffs and other

transgender individuals on the basis of invidious stereotypes, irrational fears, and moral

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disapproval, which are not permissible bases for differential treatment under any standard of review.
143. As a result of the policies, practices, and conduct of the Defendants, men and women who are transgender, including Individual Plaintiffs and members of Plaintiff ACLU of Maryland, have suffered, or imminently will suffer, harm, including stigma, humiliation and/or emotional distress, loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, threatened disruption of their military service (including loss of promotion and other career opportunities), and violations of their constitutional right to equal protection. Defendants’ conduct continues to violate the equal protection rights of men and women who are transgender on a daily basis and is the proximate cause of widespread harm among Plaintiffs.
144. Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of their Fifth Amendment rights to equal protection.
COUNT II (Against All Defendants) VIOLATION OF SUBSTANTIVE DUE PROCESS 145. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 146. The substantive component of the Fifth Amendment’s Due Process Clause includes not only the privileges and rights expressly enumerated by the Bill of Rights, but also includes the fundamental rights implicit in the concept of ordered liberty.
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147. The Fifth Amendment bars certain government actions regardless of the fairness of the procedures used to implement them, particularly conduct that is so arbitrary as to constitute an abuse of governmental authority.
148. As a result of the Transgender Service Member Ban, men and women who are transgender, including Individual Plaintiffs, have suffered, or will imminently suffer, a violation of their right to substantive due process because, due to their transgender status, and without any reasoned basis, they are denied an opportunity to demonstrate their continued fitness for duty; the ability to enlist in the U.S. Armed Forces despite being fit to serve; and/or the opportunity to receive medical care on an equal basis as service members who are not transgender. Moreover, the Transgender Service Member Ban unfairly and indefensibly strips Individual Plaintiffs of opportunities and benefits previously recognized by DoD’s Open Service Directive, on which they relied.
149. President Trump issued the Transgender Service Member Ban, directing that: (i) current service members who are transgender are barred from serving in the U.S. Armed Forces, irrespective of their ability to demonstrate their fitness to serve (§ 1(b)); (ii) enlistment in the military by men and women who are transgender is prohibited, irrespective of their ability to demonstrate their fitness to serve (§ 2(a)); and (iii) currently serving transgender service members are denied medically necessary surgical care, including in cases where individuals are stable in their gender transition and able to demonstrate their fitness to serve on the same basis as other service members (§ 2(b)). Each of these three policies—and the Transgender Service Member Ban as a whole—violates Plaintiffs’ rights to substantive due process.
150. The Defendants directly and proximately caused, and continue to cause, the violation of Plaintiffs’ rights to substantive due process under the law.
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151. As a result of the policies, practices, and conduct of the Defendants, men and women who are transgender, including Individual Plaintiffs and members of Plaintiff ACLU of Maryland, have suffered, or imminently will suffer, harm, including stigma, humiliation and/or emotional distress, loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, disruption of their military service (including loss of promotion and other career opportunities), and violations of their constitutional right to substantive due process. Defendants’ conduct continues to violate the substantive due process rights of men and women who are transgender on a daily basis and is the proximate cause of widespread harm among Plaintiffs.
152. Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of their Fifth Amendment rights to substantive due process.
RELIEF REQUESTED Wherefore, Plaintiffs respectfully request that this Court:
A. Issue a declaratory judgment that the Transgender Service Member Ban violates the equal protection component of the Fifth Amendment to the U.S. Constitution, and is invalid on its face and as applied to Plaintiffs;
B. Issue a declaratory judgment that the Transgender Service Member Ban violates the Fifth Amendment’s guarantee of substantive due process, and is invalid on its face and as applied to Plaintiffs;
C. Issue an Order preliminarily and permanently enjoining the Defendants from enforcing the Transgender Service Member Ban, including ordering that:
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Case 1:17-cv-02459-MJG Document 1 Filed 08/28/17 Page 38 of 39 i. Individual Plaintiffs and all other transgender service members may not be
discharged, denied promotion, or otherwise receive adverse employment treatment solely on the basis of their transgender status; ii. Individual Plaintiffs and all other transgender service members may not be denied medically necessary care, including for the treatment of gender dysphoria; and iii. Individual Plaintiffs and all other men and women who are transgender may not be denied the opportunity to join a branch of the U.S. Armed Forces, provided they meet the requirements adopted by the Open Service Directive. D. Award reasonable attorneys’ fees and allowable costs of court; and E. Award such other and further relief as it may deem appropriate and in the interests of justice.
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 Case 1:17-cv-02459-MJG Document 39 Filed 09/14/17 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

PETTY OFFICER FIRST CLASS BROCK STONE, (Anne Arundel County, Maryland)
STAFF SERGEANT KATE COLE, SENIOR AIRMAN JOHN DOE, AIRMAN FIRST CLASS SEVEN ERO GEORGE, PETTY OFFICER FIRST CLASS TEAGAN GILBERT, TECHNICAL SERGEANT TOMMIE PARKER,*∗
and AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, INC., 3600 Clipper Miller Road, Suite 350 Baltimore, MD 21211
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue NW Washington, D.C. 20500
JAMES MATTIS, in his official capacity as Secretary of Defense U.S. Department of Defense 1400 Defense Pentagon Washington, D.C. 20301
RYAN McCARTHY, in his official capacity as Acting Secretary of the U.S. Department of the Army 101 Army Pentagon Washington, D.C. 20301
RICHARD SPENCER, in his official capacity as Secretary of the U.S. Department of the Navy 1200 Navy Pentagon Washington D.C. 20350

) ) ) ) ) ) )
) ) ) ) ) ) ) ) ) Case No. 17-cv-02459 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

* Before the Court is a pending motion to waive the Individual Plaintiffs’ obligation under Local Rule 102.2(a) to provide addresses, and to permit Plaintiff Doe to proceed anonymously.

Case 1:17-cv-02459-MJG Document 39 Filed 09/14/17 Page 2 of 42

)

HEATHER WILSON

)

in her official capacity as Secretary of the

)

U.S. Department of the Air Force

)

1690 Air Force Pentagon

)

Washington, D.C. 20330

)

)

Defendants.

)

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF NATURE OF THE ACTION
1. Thousands of transgender service members are serving honorably in this country’s Armed Forces. Some perform critical roles in intelligence analysis, disaster relief, medical care, and pre-deployment training at bases in the United States. Others have deployed to combat zones in Iraq and Afghanistan. Many transgender service members have received awards for their service, and some have served for decades. All have answered the selfless call of service to our nation by putting themselves in harm’s way to protect the rights and freedoms fundamental to this country.
2. The individual plaintiffs in this case (“Individual Plaintiffs”) are just some of those transgender service members. Petty Officer Stone has served in the U.S. Navy for 11 years, including a nine-month deployment to Afghanistan, and is currently assigned to a unit at Fort Meade, in Maryland. Staff Sergeant Cole has served in the U.S. Army for almost ten years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman. Senior Airman Doe has served for approximately six years on active duty in the U.S. Air Force, where he was awarded “Airman of the Year” for his flight. Airman First Class George has been enlisted in the Air National Guard since 2015. He is training as a nurse, and intends to seek a commission in the U.S. Army. Petty Officer Gilbert has served in the U.S. Navy for 13 years, including a one-year deployment to Afghanistan, and currently serves as an
2

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information and space systems technician. Technical Sergeant Parker served in the Marine Corps for four years and has served in the Air National Guard for 26 years, now working as a fuel technician.
3. At the culmination of a thorough process of research and analysis, the Department of Defense (“DoD”) concluded in 2016 that there was no basis for the military to exclude men and women who are transgender from openly serving their country, subject to the same fitness requirements as other service members. This review process carefully considered and rejected the notion that medical costs, military readiness, or other factors presented any plausible reason to discriminate against service members who are transgender, many of whom had already been serving with honor in silence for decades. Accordingly, the Secretary of Defense issued a directive (the “Open Service Directive”) that service members who are transgender be permitted to serve openly without fear of discharge; that these service members receive medically necessary health care, as do others who serve their country; and that, beginning on July 1, 2017, men and women who are transgender be permitted to enlist in the military subject to stringent enlistment standards.
4. On the morning of July 26, 2017, President Trump declared on Twitter that the Individual Plaintiffs and all other men and women who are transgender would no longer be allowed to continue serving in the military “in any capacity.” This pronouncement was posted under the handle @realDonaldTrump:
3

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5. The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump’s announcement, and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender, with a goal of gaining votes for a spending bill that included money to build a border wall with Mexico.
6. On August 25, 2017, President Trump formalized his ban in a Memorandum for the Secretary of Defense and the Secretary of Homeland Security, with the subject “Military Service by Transgender Individuals” (the “Transgender Service Member Ban”). President Trump directed the Secretary of Defense to “return to” the pre-2016 policy of banning service by men and women who are transgender, which he described as “generally prohibit[ing] openly transgender individuals from accession into the United States military and authoriz[ing] the
4

Case 1:17-cv-02459-MJG Document 39 Filed 09/14/17 Page 5 of 42
discharge of such individuals.” President Trump further banned the use of government resources to fund “sex-reassignment surgical procedures” for service members regardless of cost or medical necessity.
7. President Trump delayed the operation of his directives, but its impacts are already being felt today. Planned medical treatment and procedures are being canceled, treatment plans are being modified, and recommendations and requests for new treatment are being denied to service members who are transgender. The six-month preparation period only serves as a brief delay to the full implementation of President Trump’s unequivocal policy pronouncement. The many harms and impacts are being felt already.
8. As a consequence of the Transgender Service Member Ban, thousands of Americans already serving their country—many of whom publicly revealed that they are transgender after DoD formally welcomed their service in June 2016—have been told that they are no longer welcome. At a minimum, the Transgender Service Member Ban deprives them of their currently-recognized right not to be discharged on the basis of their transgender status, instead authorizing their discharge at any time after March 23, 2018. While the Pentagon develops a plan to involuntarily terminate their military service, men and women who are transgender will be singled out from other service members and denied medically necessary health care that is provided to everyone else. Other men and women who are transgender will be denied the opportunity to serve altogether, even if they could satisfy the stringent standards for enlistment applicable to all others seeking to serve.
9. Without input from the Department of Defense and Joint Chiefs of Staff, and without any deliberative process, President Trump cast aside the rigorous, evidence-based policy
5

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of the Open Service Directive, and replaced it with discredited myths and stereotypes,

uninformed speculation, and animus against people who are transgender.

10. Plaintiffs bring this action to right this unconstitutional wrong.

Plaintiff Stone

THE PARTIES

11. Petty Officer First Class Brock Stone is a 34-year-old man.

12. Petty Officer Stone is assigned to a unit at Fort Meade, Maryland through at least

August 2020, and resides off-base with his wife in Anne Arundel County.

13. Petty Officer Stone has served in the U.S. Navy for 11 years, including a nine-

month deployment to Afghanistan. Petty Officer Stone was awarded an achievement medal in

connection with his deployment, and he has received multiple other commendations, including a

flag letter of commendation and multiple recommendations for early promotion. He has received

extensive and costly training and is skilled in his field.

14. Petty Officer Stone is transgender.

15. Petty Officer Stone publicly revealed his transgender status to military personnel

in reliance upon DoD’s June 2016 Open Service Directive.

16. Pursuant to his evaluation by DoD medical personnel, Petty Officer Stone is

undergoing hormone therapy as a medically necessary part of his gender transition.

17. Since arriving at Fort Meade in July 2017, Petty Officer Stone has received

medically necessary treatment related to his gender transition at Walter Reed National Military

Medical Center in Bethesda, Maryland. He was close to finalizing a medical treatment plan that

included surgery at the time he was transferred to Fort Meade. Before President Trump issued his

Transgender Service Member Ban, Petty Officer Stone planned and expected that his treatment

plan at Fort Meade would include medically necessary surgery in 2018.

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18. Petty Officer Stone is a member of the ACLU of Maryland. Plaintiff Cole 19. Staff Sergeant Kate Cole is a 27-year-old woman. 20. Staff Sergeant Cole is stationed at Fort Polk, Louisiana. 21. Staff Sergeant Cole has served in the U.S. Army for almost ten years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman. Staff Sergeant Cole currently works as a Cavalry Scout, where she operates with a tank unit. 22. Staff Sergeant Cole is transgender. 23. Staff Sergeant Cole publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 24. Pursuant to her evaluation by DoD medical personnel, Staff Sergeant Cole is undergoing hormone therapy as a medically necessary part of her gender transition. 25. Staff Sergeant Cole was scheduled to receive medically necessary surgery related to her gender transition in or around September 2017. On September 8, 2017, she was informed that approval of her medically-indicated surgical treatment was denied and her pre-surgical consultation for an orchiectomy was cancelled as part of a stop to all surgical care related to gender transition in the wake of the President’s directive. Plaintiff Doe 26. Senior Airman John Doe is a 25-year-old man. 27. Senior Airman Doe is stationed at Little Rock Air Force Base, Arkansas.
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28. Senior Airman Doe has served for approximately six years on active duty in the U.S. Air Force, where he is pursuing cryogenics certification. He was awarded “Airman of the Year” for his flight.
29. Senior Airman Doe has deployed to Qatar for a six-month deployment. 30. Senior Airman Doe is transgender. 31. Senior Airman Doe publicly revealed his transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 32. Pursuant to his evaluation by DoD medical personnel, Senior Airman Doe is undergoing hormone therapy as a medically necessary part of his gender transition and had planned to receive medically necessary surgery in the summer of 2017. 33. Following President Trump’s July 2017 tweets announcing the forthcoming Trump Transgender Service Member Ban, Senior Airman Doe was informed by e-mail from the medical command at the base where he was scheduled to undergo surgery that all gender transition-related surgeries, including his own, had been put on hold pending further DoD guidance. Plaintiff George 34. Airman First Class Seven Ero George is a 41-year-old man. 35. Airman First Class George is stationed at the Selfridge Air National Guard Base, Michigan. 36. Airman First Class George is in the Air National Guard, where he serves in the base security force. He is also a member of the base Honor Guard, performing military funeral honors for deceased veterans, retirees, and active duty members; providing dignified transfers; and performing color guard details.
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37. Airman First Class George is transgender. 38. Airman First Class George publicly revealed his transgender status to military personnel following, and in reliance upon DoD’s June 2016 Open Service Directive. 39. Airman First Class George is undergoing hormone therapy as a medically necessary part of his gender transition and has undergone medically necessary surgery. 40. Airman First Class George intends to pursue a commission in the U.S. Army Nurse Corps and is finishing a civilian degree in nursing. This effort to seek a commission in a different service would subject Airman First Class George to the Army’s accession policies, including the ban on accessions included in President Trump’s Transgender Service Member Ban. Plaintiff Gilbert 41. Petty Officer First Class Teagan Gilbert is a 31-year-old woman. 42. Petty Officer Gilbert is a reservist stationed in Phoenix, Arizona. 43. Petty Officer Gilbert has served in the U.S. Navy for more than 13 years, including a one-year deployment to Afghanistan. She is currently in the Naval Reserve working as an information and space systems technician. 44. Petty Officer Gilbert is transgender. 45. Petty Officer Gilbert publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 46. Pursuant to her evaluation by DoD medical personnel, Petty Officer Gilbert is undergoing hormone therapy as a medically necessary part of her gender transition and plans to seek approval for medically indicated surgical treatment in the future.
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47. Petty Officer Gilbert has one year of course work left in her undergraduate degree at Arizona State University, after which she intends to apply to Officer Candidate School and return to active duty status.
48. Petty Officer Gilbert’s goal is to serve in the military for at least 20 years. Plaintiff Parker 49. Technical Sergeant Tommie Parker is a 54-year-old woman. 50. Technical Sergeant Parker is stationed at Stewart Air National Guard Base, New York and has served in the Marine Corps for four years and the Air National Guard for 26 years, including deployments to Okinawa (with the Marine Corps) and Germany (with the Air National Guard). Her Air National Guard service time includes twelve years and counting on active duty. It is Technical Sergeant Parker’s goal to serve in the military for at least 20 years of active duty service time. She now works as a fuel technician. 51. Technical Sergeant Parker is transgender. 52. Technical Sergeant Parker publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 53. Pursuant to her evaluation by DoD medical personnel, Technical Sergeant Parker is undergoing hormone therapy as a medically necessary part of her gender transition. Plaintiff ACLU of Maryland 54. Plaintiff American Civil Liberties Union of Maryland, Inc. (“ACLU of Maryland”) is an affiliate of the American Civil Liberties Union, a non-profit, nationwide, nonpartisan membership organization with over 1,500,000 members.
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55. Plaintiff ACLU of Maryland’s growing membership comprises over 42,000 Maryland members, including one or more men and women who are transgender who are currently serving in the U.S. military or who intend to volunteer for service in the U.S. military.
56. The ACLU of Maryland litigates cases in which government officials have attempted to discriminate against men and women who are transgender, and therefore the ACLU of Maryland has a direct interest in challenging the ban at issue in this case.
57. The ACLU of Maryland’s interest in protecting both its members and other men and women who are transgender from discrimination on the basis of sex and transgender status is both germane and fundamental to the organization’s purpose of furthering the principles of liberty and equality embodied in the Constitution and the nation’s civil rights laws.
Defendants 58. Defendant Donald J. Trump is the President of the United States. He is sued in his official capacity. In that capacity, on August 25, 2017, he issued the Transgender Service Member Ban. 59. Defendant James Mattis is the Secretary of Defense and is sued in his official capacity. DoD is responsible for providing the military forces needed to deter war and protect the security of the United States. At all times relevant to this Complaint, Defendant Mattis was acting as an employee and agent of the United States. In that capacity, Defendant Mattis is responsible for supervising the branches of the U.S. Armed Forces; for promulgating, implementing, and enforcing the policies and regulations that govern military service in all branches of the U.S. Armed Forces; and for ensuring the legality of these policies and regulations. In this role, he is responsible for the maintenance and enforcement of Department of
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Defense Instruction (“DoDI”) 1300.28, which establishes DoD policies regarding transgender service members.
60. Defendant Ryan McCarthy is the Acting Secretary of the Army and is sued in his official capacity. The Department of the Army is the DoD branch that defends the land mass of the United States, its territories, commonwealths, and possessions. At all times relevant to this Complaint, Defendant McCarthy was acting as an employee and agent of the United States. In that capacity, Defendant McCarthy has overall responsibility for the Army and for the Army’s development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Army publications and directives implementing DoD policy governing transgender service members.
61. Defendant Richard Spencer is the Secretary of the Navy and is sued in his official capacity. The Department of the Navy is the DoD branch that maintains, trains, and equips combat-ready maritime forces. At all times relevant to this Complaint, Defendant Spencer was acting as an employee and agent of the United States. In that capacity, Defendant Spencer has overall responsibility for the Navy and Marine Corps and for those services’ development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Navy and Marine Corps publications and directives implementing DoD policy governing transgender service members.
62. Defendant Heather Wilson is the Secretary of the Air Force and is sued in her official capacity. The Department of the Air Force is the DoD branch that provides the U.S. military with air and space capability. At all times relevant to this Complaint, Defendant Wilson was acting as an employee and agent of the United States. In that capacity, Defendant Wilson has overall responsibility for the Air Force and for the Air Force’s development, administration, and
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enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Air Force publications and directives implementing DoD policy governing transgender service members.
JURISDICTION AND VENUE 63. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the action arises under the United States Constitution, the laws of the United States, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02. 64. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1) because Plaintiff Stone and Plaintiff ACLU of Maryland reside in this District, and because a substantial part of the events or omissions giving rise to this action occurred and are occurring in this District.
FACTUAL ALLEGATIONS A. Current Military Service by Men and Women Who Are Transgender 65. Transgender Americans have served, and continue to serve, in the military with distinction, including in combat. As of May 2014, the Williams Institute at UCLA School of Law estimated that men and women who are transgender account for approximately 8,800 active members of the U.S. Armed Forces. This figure may be even higher today in light of DoD’s June 2016 Open Service Directive regarding transgender service. 66. Men and women who are transgender also serve openly in civilian roles supporting the U.S. military, including as contractors in combat zones. B. Medical Treatment for Transgender Service Members 67. Pursuant to DoDI 1300.28 (§ 1.2(a)), “[t]ransgender persons . . . are subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming standards, deployability, and retention.”
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68. The American Psychiatric Association and every other major mental health organization recognize that being transgender is not a mental disorder and implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.
69. Some men and women who are transgender, however, experience “gender dysphoria,” a diagnostic term used to describe the incongruence between a person’s gender identity and the gender that they were assigned at birth where such incongruence is accompanied by clinically significant distress.
70. As with all medical conditions, varying courses of treatment for gender dysphoria may be medically necessary depending on the needs of the individual, as determined in consultation with medical professionals. These treatments, often referred to as transition-related care, may include social role transition, hormone therapy, and surgery (sometimes called “sex reassignment surgery” or “gender confirmation surgery”). The goal of the treatment is to align an individual’s outward expression of gender, body, and biochemistry with the person’s gender identity in order to eliminate the clinically significant distress.
71. According to every major medical organization and the overwhelming consensus among medical experts, treatments for gender dysphoria, including surgical procedures, are effective, safe, and medically necessary when clinically indicated to alleviate the distress caused by the condition.
72. In accordance with that medical consensus and contemporary standards of care, Medicare, Medicaid, and private insurance policies across the country routinely cover transitionrelated care as medically necessary treatment.
73. The medical needs of transgender service members with gender dysphoria are not materially different from those of other service members. For example, the military provides
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routine psychological care to all service members around the globe, including men and women who are transgender. It also provides long-term hormone treatments for persons with diabetes and other endocrine disorders, and stocks cross-sex hormones in its dispensaries in the United States and abroad. The military further provides medically-indicated surgery to all service members, including chest and breast reconstruction, hysterectomy, and genital reconstruction, among other procedures that might be prescribed to treat gender dysphoria.
C. History of DoD Policy on Transgender Military Service 1) Historical Regulatory Ban
74. Starting some time before 1981, DoD maintained and enforced a policy barring men and women who are transgender from enlisting or being retained in the U.S. Armed Forces.
75. That policy prohibited men and women who are transgender from serving openly, whether or not they required any ongoing medical treatment and even if they were fit to serve. In contrast, non-transgender individuals, including those requiring medical interventions, were allowed to remain in military service if they could demonstrate their fitness to serve.
76. Notably, in order to establish medical fitness, service members do not have to prove that they are universally deployable. According to the policy, “[i]nability to perform the duties of his or her office, grade, rank, or rating in every geographic location and under every conceivable circumstance will not be the sole basis for a finding of unfitness.”
77. Neither the policy nor the various service branch regulations that implemented it articulated a rationale for presuming that being transgender renders a service member administratively unfit.
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2) DoD Revisits and Studies the Regulations Regarding Transgender Military Service
78. On July 13, 2015, then-Secretary of Defense Ashton Carter issued two directives aimed at updating DoD’s existing transgender service member regulations, which the Secretary described as “an outdated, confusing, inconsistent approach that’s contrary to our value of service and individual merit [and that is] causing uncertainty that distracts commanders from our core missions.” Statement by Secretary of Defense Ash Carter on DOD Transgender Policy, DoD (July 13, 2015), https://www.defense.gov/News/News-Releases/News-ReleaseView/Article/612778/.
79. The Secretary’s first directive established a working group to study “the policy and readiness implications of welcoming transgender persons to serve openly.” The Acting Under Secretary of Defense for Personnel and Readiness led the group, which was comprised of leaders from the armed services; the Joint Staff; the service secretaries; and personnel, training, readiness and medical specialists from across DoD (with input from transgender service members, outside expert groups, and medical professionals outside the department).
80. The Secretary’s second directive ordered that “decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to” the Under Secretary, “who will make determinations on all potential separations.”
81. From July 2015 to June 2016, members of the working group and other senior leaders in DoD met with transgender service members deployed throughout the world, including individuals serving on aircrafts, submarines, and operating bases, as well as at the Pentagon. These individuals were determined to be high-quality additions to the U.S. Armed Forces, and DoD leaders observed that the ambiguity of existing regulations regarding the service of
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transgender individuals put both the service members and their commanders in a difficult and fundamentally unfair position.
82. The DoD working group also carefully examined medical, legal, and policy considerations associated with permitting transgender service members to serve openly in the Armed Forces. The working group reviewed data, studied the many allied militaries that already permit transgender service members to serve openly, and considered analogous examples from the public and private sectors in the United States. DoD observed, among other things, that the provision of medical care for men and women who are transgender is becoming common and normalized in public and private sectors alike.
83. In conjunction with its working group efforts, DoD commissioned the RAND Corporation to analyze relevant data and studies to assist with DoD’s own review. RAND’s work was “sponsored by the Office of the Under Secretary of Defense for Personnel and Readiness and conducted within the Forces and Resources Policy Center of the RAND National Defense Research Institute, a federally funded research and development center sponsored by the Office of the Secretary of Defense, the Joint Staff, the Unified Combatant Commands, the Navy, the Marine Corps, the defense agencies, and the defense Intelligence Community.” Agnes Gereben Schaefer et al., Assessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation, at iii–iv (2016) (hereinafter, “RAND Report,” attached as Exhibit A to Plaintiffs’ original Complaint).
84. Based on various factors, including its analysis of allied militaries and the expected rate at which American transgender service members would require medical treatment that would impact their fitness for duty or deployability, RAND concluded that there would be “minimal” readiness impacts from allowing transgender service members to serve openly. See id.
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at xii, 2–3. Specifically, RAND estimated that 10 to 130 active component members each year could have reduced deployability as a result of gender transition-related treatments. This amount is negligible relative to the 102,500 non-deployable soldiers in the Army alone in 2015, 50,000 of them in the active component. Impact of Transgender Personnel on Readiness and Health Care Costs in the U.S. Military Likely to Be Small, RAND Press Room (June 30, 2016), https://www.rand.org/news/press/2016/06/30.html.
85. RAND concluded that health care costs would represent “an exceedingly small proportion” of both Active Component and overall DoD health care expenditures. RAND Report, at xi–xii, 31. In so concluding, RAND observed that “[b]oth psychotherapy and hormone therapies are [already] available and regularly provided through the military’s direct care system,” and “[s]urgical procedures quite similar to those used for gender transition are already performed within the MHS for other clinical indications.” Id. at 8. For instance, “[r]econstructive breast/chest and genital surgeries are currently performed on patients who have had cancer, been in vehicular and other accidents, or been wounded in combat.” Id.
3) Decision to Permit Transgender Service Members to be Subject to the Same Fitness Standards as Other Service Members
86. Based on input from the DoD’s working group and the RAND Corporation, including information and recommendations from the service secretaries and other Pentagon officials, Secretary Carter issued a directive and memorandum to all military departments regarding military service for transgender service members on June 30, 2016. The Open Service Directive announced that, “[e]ffective immediately, no otherwise qualified Service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity.” Further, “[t]ransgender Service members will be subject to the same standards as any other Service member of the same gender.” Thus, “[a] Service
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member whose ability to serve is adversely affected by a medical condition or medical treatment related to their gender identity should be treated, for purposes of separation and retention, in a manner consistent with a Service member whose ability to serve is similarly affected for reasons unrelated to gender identity or gender transition.” The Open Service Directive is attached as Exhibit B to Plaintiffs’ original Complaint.
87. Citing the RAND Report, the Secretary of Defense explained the three principal reasons underlying the Open Service Directive: (1) the military’s need to “avail ourselves of all talent possible” in order to remain “the finest fighting force the world has ever known”; (2) the Secretary’s duty to transgender service members and their commanders to “provide them both with clearer and more consistent guidance than is provided by current policies”; and (3) as a matter of principle, “Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so.” Department of Defense Press Briefing by Secretary Carter on Transgender Service Policies in the Pentagon Briefing Room (June 30, 2016), https://www.defense.gov/News/Transcripts/TranscriptView/Article/822347/departmentof-defense-press-briefing-by-secretary-carter-on-transgenderservice/.
88. The Open Service Directive was to be implemented over the course of a 12-month period, from June 2016 to June 2017. Although transgender service members already in the military on June 30, 2016 were allowed to serve openly as soon as the Open Service Directive took effect, accession of transgender personnel—that is, the process of bringing new enlisted recruits and officer candidates into the military—did not begin immediately. The Policy gave the Department of Defense and the military services approximately one year to conduct training, and to start accepting transgender members into the military beginning on July 1, 2017.
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89. The enlistment requirements were stringent, providing, inter alia, that a history of gender dysphoria was disqualifying unless a licensed medical provider certified that the applicant had been stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months.
90. On September 30, 2016, DoD issued an “Implementation Handbook” to “assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand Department policy allowing the open service of transgender Service members.” Transgender Service in the U.S. Military: An Implementation Handbook, DoD, at 8 (Sept. 30, 2016), available at https://www.defense.gov/Portals/1/features/2016/0616_policy/DoDTGHandbook_093016.pdf?v er=2016-09-30-160933-837. The Handbook explained to transgender service members that DoD’s revised transgender service member policy “ensures your medical care is brought into the military health system (MHS), protects your privacy when receiving medical care, and establishes a structured process whereby you may transition gender when medically necessary.” Id. at 17. The Handbook encouraged transgender service members to be “open and honest with your leadership when discussing the gender transition process,” and further encouraged transgender service members to disclose their transgender status to colleagues. Id. at 20.
91. The Handbook also provided guidance to commanders and non-transgender service members. Id. at 25–33. The topics in the Handbook include an overview of the gender transition approval process; guidance specific to transgender service members, commanders, and non-transgender service members, including communication, medical care, deployment and physical fitness, and privacy; frequently asked questions and answers; various potential scenarios and guidance on how to address them; and resources for further information. See generally id.
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Case 1:17-cv-02459-MJG Document 39 Filed 09/14/17 Page 21 of 42 92. Implementation training began shortly after the policy was announced. This training involved commanders, medical personnel, the operating forces, and recruiters. The training was directed to the entire joint force, in the United States and around the world. 93. During this same timeframe, each of the service branches conducted a comprehensive review of regulations governing medical care, administrative separations, and manpower management, in order to ensure that service-level issuances were consistent with the DoD instructions. D. Twitter Announcement of Categorical Ban on Service by Men and Women
Who Are Transgender 94. On the morning of July 26, 2017, President Trump posted the following announcement on Twitter, under the handle @realDonaldTrump:
95. The Trump Administration has provided no evidence that this about-face in policy was supported by any study of the issue or any consultation with military officers, DoD officials, other military experts, or medical or legal experts.
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96. Press reports indicate that President Trump’s motivations in abruptly announcing a transgender ban were largely political, reflecting a desire to placate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender in order to gain votes to pass a defense spending bill that included money to build a border wall with Mexico—a well-known priority for President Trump. Rachel Bade & Josh Dawsey, Inside Trump’s Snap Decision to Ban Transgender Troops, Politico (July 26, 2017, 2:07 PM), http://www.politico.com/story/2017/07/26/trump-transgender-military-ban-behind-the-scenes240990; see also, e.g., Tom Porter, Transgender Military Ban: The Rise of Anti-LGBT Hate Groups in Trump’s White House, Newsweek (July 26, 2017, 12:47 PM), http://www.newsweek.com/anti-lgbt-hate-groups-transgender-military-ban-trump-642218; Asawin Suebsaeng et al., Trump Bows to Religious Right, Bans Trans Troops, The Daily Beast (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-banstrans-troops.
97. According to subsequent media reports, “President Donald Trump’s White House and Defense Department lawyers had warned him against the transgender military ban for days” and were “startl[ed]” when they “learned of the change in a series of tweets.” Josh Dawsey, John Kelly’s Big Challenge: Controlling the Tweeter in Chief, Politico (Aug. 4, 2017, 6:03 PM), http://www.politico.com/story/2017/08/04/trump-john-kelly-challenge-twitter-241343.
98. President Trump’s actions immediately caused the Individual Plaintiffs and other transgender service members to fear for their careers, the well-being of their family members and dependents, their health care and, in some cases, their safety.
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99. The President’s actions were also experienced by the Individual Plaintiffs as a
betrayal, in light of their actions to come out publicly to military personnel in reliance on the
June 2016 directive.
100. Close to 60 retired generals and flag officers from various military branches also
found President Trump’s tweet to undermine national security and military readiness, stating:
This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie . . . The military conducted a thorough research process on this issue and concluded that inclusive policy for transgender troops promotes readiness. . . . We could not agree more.
Fifty-Six Retired Generals and Admirals Warn that President Trump’s Anti-Transgender Tweets,
if Implemented, Would Degrade Military Readiness, Palm Ctr. (Aug. 1, 2017),
http://www.palmcenter.org/fifty-six-retired-generals-admirals-warn-president-trumps-
antitransgender-tweets-implemented-degrade-military-readiness/.
101. Members of Congress were similarly “troubled” by President Trump’s tweet on a
bipartisan basis, with one Republican lawmaker (and former Navy SEAL) issuing the following
statement:
I am troubled that [DoD] seemed to be unaware of this potential policy change and how it was made public. I understand the DoD is in the middle of a review of relevant policies and I believe this ban is premature. There are heroic military members willing to put their lives on the line and give the ultimate sacrifice on our behalf, regardless of their gender identity. I support the ability for those who meet all military requirements, medical and otherwise, to have the opportunity to serve our great country. See Rep. Scott Taylor (R-Va.), Statement on Trump Transgender Ban (July 26, 2017),
https://taylor.house.gov/media/press-releases/statement-trump-transgender-ban.
102. Senator John McCain, Chairman of the Senate Committee on Armed Services;
also repudiated President Trump’s announcement, stating:
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The Department of Defense has already decided to allow currentlyserving transgender individuals to stay in the military, and many are serving honorably today. Any American who meets current medical and readiness standards should be allowed to continue serving. There is no reason to force service members who are able to fight, train, and deploy to leave the military—regardless of their gender identity. We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so—and should be treated as the patriots they are. See Sen. John McCain (R-Ariz.), Statement by SASC Chairman John McCain on Transgender Americans in the Military (July 26, 2017), https://www.mccain.senate.gov/public/index.cfm/2017/7/statement-by-sasc-chairman-johnmccain-on-transgender-americans-in-the-military. 103. The Department of Defense declined comment on President Trump’s policy announcement, referring questions to the White House. 104. The Secretary of Defense was on vacation at the time of President Trump’s announcement on Twitter. E. The Transgender Service Member Ban 105. Early Friday evening on August 25, 2017, President Trump issued his Transgender Service Member Ban in the form of a Memorandum for the Secretary of Defense and Secretary of Homeland Security. A copy is attached as Exhibit C to Plaintiffs’ original Complaint. 106. The Transgender Service Member Ban states that in President Trump’s own “judgment,” DoD’s decision to adopt the Open Service Directive “failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and
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there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.”
107. The Transgender Service Member Ban therefore “direct[s]” the Secretary of Defense and the Secretary of Homeland Security “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016,” until President Trump is personally persuaded that a change is warranted. Transgender Service Member Ban § 1(b).
108. The Transgender Service Member Ban orders that the policy banning enlistment of men and women who are transgender be extended, until a recommendation to the contrary is made “that I find convincing.” Id. § 2(a). The Transgender Service Member Ban further orders a “halt” to the use of DoD resources “to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Id. § 2(b).
109. The Transgender Service Member Ban specifies that provisions banning men and women who are transgender from enlisting will take effect on January 1, 2018 (the date Defendant Mattis’s directive delaying accessions will expire). It further provides that the provisions banning existing transgender service members from continued service and banning medically necessary health care will take effect on March 23, 2018. Id. § 3.
110. The Transgender Service Member Ban further directs the Secretary of Defense, in consultation with the Secretary of Homeland Security, to submit to President Trump by February 21, 2018, a plan to implement the Transgender Service Member Ban and “determine how to address transgender individuals currently serving in the United States military.” Id. § 3.
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111. The Transgender Service Member Ban gives the Secretary of Defense discretion to determine how to implement the Ban, but it does not leave discretion for the Secretary of Defense to allow currently serving members who are transgender to continue to serve indefinitely. At a minimum, on March 23, 2018, transgender service members will be subject to discharge or discontinuation of service on the basis of their transgender status alone. And whatever plan the Secretary submits to implement the Ban, the required end result is the fulfillment of President Trump’s avowed goal: a military with no transgender service members “in any capacity.”
F. Fundamental Contradiction Between Transgender Service Member Ban and DoD’s Own Considered Conclusions
112. Although the Transgender Service Member Ban purports to be based on President Trump’s “judgment,” that judgment appears to reflect nothing more than uninformed speculation, myths, and stereotypes that have already been rebutted by an extensive and rigorous evidence-based process.
113. For example, as justification for the Transgender Service Member Ban, President Trump stated that allowing men and women who are transgender to continue serving would be disruptive. But the 2016 study commissioned by DoD found that a transgender service member’s care would have a substantial impact on readiness only if (1) that service member worked in an “especially unique” military occupation, (2) that occupation was “in demand at the time of transition,” and (3) the service member needed to be available for “frequent, unpredicted mobilizations.” RAND Report, at 43. “Having completed medical transition, a service member could resume activity in an operational unit if otherwise qualified.” Id. Upon information and belief, the DoD’s own working group reached similar conclusions. The American Medical
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Association similarly adopted a resolution that “there is no medically valid reason to exclude transgender individuals from service in the [United States] military.”
114. Further, high-ranking military personnel have indicated that the Transgender Service Member Ban—not the Open Service Directive—will cause serious disruption to the Armed Forces. See Fifty-Six Retired Generals and Admirals Warn that President Trump’s AntiTransgender Tweets, if Implemented, Would Degrade Military Readiness, supra (“This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie, as well as non-transgender peers who would be forced to choose between reporting their comrades or disobeying policy. As a result, the proposed ban would degrade readiness[.]”) (emphases added)).
115. President Trump has similarly invoked alleged concerns about “unit cohesion.” The RAND study noted that “[t]he underlying assumption [of these alleged concerns] is that if service members discover that a member of their unit is transgender, this could inhibit bonding within the unit, which, in turn, would reduce operational readiness.” Id. at 44.
116. To study the validity of this argument, RAND looked to, among other things, the experiences of foreign countries that permit open transgender military service. There are 18 such countries: Australia, Austria, Belgium, Bolivia, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, the Netherlands, New Zealand, Norway, Spain, Sweden, and the United Kingdom. Observing that “there has been no significant effect of openly serving transgender service members on cohesion, operational effectiveness, or readiness” in foreign militaries that permit open transgender service, and that “direct interactions with transgender individuals significantly reduce negative perceptions and increase acceptance,” the RAND study
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concluded: “[W]e anticipate a minimal impact on readiness from allowing transgender personnel to serve openly.” Id. at 44–45, 47. Upon information and belief, the DoD’s own working group reached similar conclusions.
117. Senator Tammy Duckworth—an Iraq War Veteran, Purple Heart recipient and former Assistant Secretary of the Department of Veterans Affairs—has explained that the Transgender Service Member Ban, not the Open Service Directive, would “harm our military readiness”:
When I was bleeding to death in my Black Hawk helicopter after I was shot down, I didn’t care if the American troops risking their lives to help save me were gay, straight, transgender, black, white or brown. All that mattered was they didn’t leave me behind. If you are willing to risk your life for our country and you can do the job, you should be able to serve—no matter your gender identity or sexual orientation. See Sen. Tammy Duckworth (D-Ill.), Duckworth Statement on Reports Trump Administration Directing DOD to Discriminate Against Transgender Servicemembers (Aug. 24, 2017), https://www.duckworth.senate.gov/content/duckworth-statement-reports-trump-administrationdirecting-dod-discriminate-against. 118. Finally, President Trump claimed that allowing transgender service members to continue service would be too expensive. The RAND Report’s study found to the contrary. Namely, “even in the most extreme scenario that we were able to identify using the private health insurance data, we expect only a 0.13-percent ($8.4 million out of $6.2 billion) increase in [active component] health care spending.” RAND Report, at 36. By contrast, total military spending on erectile dysfunction medicines amounts to $84 million annually—ten times the cost of annual transition-related medical care for active duty transgender service members. Patricia Kime, DoD Spends $84M a Year on Viagra, Similar Meds, Military Times (Feb. 13, 2015),
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http://www.militarytimes.com/pay-benefits/military-benefits/health-care/2015/02/13/dod-spends84m-a-year-on-viagra-similar-meds/.
119. An August 2017 report by the Palm Center concluded that implementing the Transgender Service Member Ban will cost $960 million. See Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (Aug. 2017), available at http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops.pdf.
G. Immediate and Irreparable Harm from the Transgender Service Member Ban
120. The Individual Plaintiffs and other transgender service members face immediate and irreparable harm as a result of the Transgender Service Member Ban.
121. Each Individual Plaintiff and other transgender service members suddenly face the reality that, despite their years of commitment and training, their careers will prematurely end and various benefits will be permanently unavailable. Terminating the active service of Plaintiffs and other transgender service members would also adversely affect their retirement benefits, and could in some cases preclude eligibility for retirement benefits altogether.
122. Plaintiff Petty Officer Stone has served in the U.S. Navy for 11 years, which included a nine-month deployment to Afghanistan. Petty Officer Stone was awarded an achievement medal in connection with his deployment, and he has received multiple other commendations, including a flag letter of commendation and multiple recommendations for early promotion. Despite this lengthy service and deployment, and the fact that he has received extensive and costly training in his field, he faces the prospect that he will be forced out of the U.S. Navy pursuant to the Transgender Service Member Ban.
123. Plaintiff Staff Sergeant Cole has served in the U.S. Army for nearly a decade, which included a one-year deployment to Afghanistan. Despite her lengthy service, experience
29

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as a team leader, designated marksman, and Cavalry Scout, she faces the prospect that she will be forced out of the U.S. Army pursuant to the Transgender Service Member Ban.
124. Plaintiff Senior Airman Doe has served for approximately six years in the U.S. Air Force, which included a deployment to Qatar. Despite his service and the fact that he was awarded “Airman of the Year” for his flight, he faces the prospect that he will be forced out of the U.S. Air Force pursuant to the Transgender Service Member Ban.
125. Plaintiff Airman First Class George has served in the Air National Guard for two and a half years and intends to pursue a commission in the U.S. Army. Despite his service as base security force, he will be prohibited from commissioning in the U.S. Army and faces the prospect that he will be forced out of the Air National Guard pursuant to the Transgender Service Member Ban.
126. Plaintiff Petty Officer Gilbert has served in the U.S. Navy for 13 years, which included a one-year deployment to Afghanistan. Despite her lengthy service and her specialized knowledge as an information and space systems technician, she faces the prospect that she will be forced out of the U.S. Navy pursuant to the Transgender Service Member Ban.
127. Plaintiff Technical Sergeant Parker has served in the U.S. Marine Corps for four years and the Air National Guard for 26 years, which included deployments to Japan and Germany. Despite her lengthy service, she faces the prospect that she will be forced out of the Air National Guard pursuant to the Transgender Service Member Ban.
128. In addition, many transgender service members, including Plaintiffs Stone, Cole, Doe, Gilbert, and Parker, will be denied medically necessary surgical treatment that, in many cases, has already been recommended by military medical professionals.
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129. Scheduled medical procedures for Plaintiffs Doe and Cole have already been cancelled.
130. Each transgender service member who is denied medically necessary surgical treatment will suffer serious harm.
131. The Individual Plaintiffs will also face irreparable harm to their education as a result of the Transgender Service Member Ban.
132. Plaintiff Cole currently benefits from the Army’s tuition assistance, which permits her to take college classes through the University of Maryland - University College. If she is discharged, she will no longer be eligible for tuition assistance.
133. The Transgender Service Member Ban will prevent Plaintiff Gilbert from being accepted to Officer Candidate School after finishing her coursework at Arizona State University.
134. The Individual Plaintiffs and other transgender service members also face extraordinary stress, uncertainty, and stigma based on the decision to ban transgender individuals from service and single out their medical care for a ban on coverage. Effective March 23, 2018, the Open Service Directive’s policy that transgender status is not a basis for discharge will be rescinded, and the military will be “authorized to discharge” every transgender service member. Even as Plaintiffs wait for their status to be “addressed” as the Trump Transgender Service Member Ban is implemented, they face significant uncertainty and concern about their careers and their futures, must plan for potential discharge, and experience the stigma of being told their service to their country is not valued or wanted, and that their medical care needs are not real or necessary. Upon information and belief, some service members are already being told that they may not reenlist.
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LEGAL CLAIMS COUNT I (Against All Defendants) VIOLATION OF THE EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE 135. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 136. The equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution protects all persons, including members of the Armed Forces. 137. President Trump issued the Transgender Service Member Ban, directing that: (i) current policy providing that transgender status is not a basis for discharge is rescinded, and service members who are transgender are barred from serving in the U.S. Armed Forces, irrespective of their ability to demonstrate their fitness to serve (§ 1(b)); (ii) enlistment in the military or commissioning as an officer by men and women who are transgender is prohibited, irrespective of their ability to demonstrate their fitness to serve, including the strict accession requirements adopted by DoD (§ 2(a)); and (iii) currently serving transgender service members are denied medically necessary surgical care, including in cases where individuals are stable in their gender transition and able to demonstrate their fitness to serve on the same basis as other service members (§ 2(b)). 138. Each of these three policies—and the Transgender Service Member Ban as a whole—violates Plaintiffs’ right to equal protection. i. Rescission of Protection Against Discharge of Existing Service Members (Directive Section 1(b)) 139. Section 1(b) of the Transgender Service Member Ban directs the Secretary of Defense to “return to the longstanding policy and practice on military service by transgender
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individuals that was in place prior to June 2016,” indefinitely. Section 1(a) describes the policy being reinstated as one under which the military is “authorized to discharge” service members on the basis of their transgender status.
140. Section 1(b) thus establishes a broad ban on service by men and women who are transgender, with immediate and longer-term impacts on those currently serving.
141. Section 3 of the Transgender Service Member Ban requires the Secretary of Defense, in implementing the Transgender Service Member Ban, to determine by February 21, 2018 how to “address” currently serving transgender men and women. Although these service members are permitted to continue serving until this determination is made, transgender service members are immediately impacted by the Transgender Service Member Ban.
142. All service members who are transgender immediately have grave reason to fear for their careers, and must reevaluate career plans that were premised on the Open Service Directive. Individual Plaintiffs and other service members who are transgender experience significant stress and psychological harm caused by this impending threat to their military service.
143. Service members who are transgender are also immediately injured by the stigma created by the Transgender Service Member Ban. Even if some transgender service members are permitted to continue serving beyond March 23, 2018, they now serve in a military where the Commander-in-Chief has announced that their service is unwanted and unwelcome, they are subject to discharge at any time on the basis of their transgender status, and their medical care will be withheld. Any transgender service member permitted to remain in his or her position will necessarily be treated as, and experience the harms associated with, a form of second-class status.
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ii. Ban on New Enlistments and Commissions (Directive Section 2(a))
144. Section 2(a) of the Transgender Service Member Ban directs the Secretary of Defense to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018.”
145. In so stating, Section 2(a) prohibits men and women who are transgender from enlisting and serving openly in the United States Armed Forces. The Open Service Directive had determined that men and women who are transgender would not be disqualified, subject to rigorous accession criteria, at the end of a phase-in period on July 1, 2017. Defendant Mattis delayed new enlistments for a further six months on the asserted basis that further study was warranted. President Trump has now acted to ban enlistment without awaiting the results of any study.
146. DoD treats commissioning as an officer as a new accession. Thus, candidates who would otherwise be eligible for commissions on January 1, 2018, will not be eligible as a result of President Trump’s indefinite ban on new accessions.
iii. Ban on Medically Necessary Care (Directive Section 2(b)) 147. Section 2(b) of the Transgender Service Member Ban directs the Secretary of Defense to “halt all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel,” except “to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” 148. Transgender service members who require medically necessary care to treat gender dysphoria are entitled to care on an equal basis to what is provided to non-transgender service members with medical conditions requiring comparable medically necessary care.
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149. Many of the same or substantially equivalent surgical procedures banned by the

Transgender Service Member Ban are covered by the military when used to treat other serious

medical conditions. The Transgender Service Member Ban singles out transgender service

members for different treatment by denying them coverage for medically necessary care that is

inherently related to their transgender status and gender nonconformity.

*

*

*

150. The Defendants’ actions of adopting, implementing, and enforcing each of the

three policies in the Transgender Service Member Ban discriminates against Individual Plaintiffs

and other men and women who are transgender on the basis of sex, which is subject to, and fails,

heightened scrutiny under the Fifth Amendment.

151. The Defendants’ actions of adopting, implementing, and enforcing each of the

three policies in the Transgender Service Member Ban discriminates against the Individual

Plaintiffs and other men and women who are transgender on the basis of their transgender status,

which is independently subject to, and fails, heightened scrutiny under the Fifth Amendment.

a. Men and women who are transgender, as a class, have historically been

subject to discrimination.

b. Men and women who are transgender, as a class, have a defining

characteristic that frequently bears no relation to an ability to perform or

contribute to society.

c. Men and women who are transgender, as a class, exhibit immutable or

distinguishing characteristics that define them as a discrete group.

d. Men and women who are transgender, as a class, are a minority with

relatively little political power.

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152. The Defendants’ actions of adopting, implementing, and enforcing each of the three policies in the Transgender Service Member Ban discriminates against Plaintiffs and other transgender individuals on the basis of invidious stereotypes, irrational fears, and moral disapproval, which are not permissible bases for differential treatment under any standard of review.
153. As a result of the policies, practices, and conduct of the Defendants, men and women who are transgender, including Individual Plaintiffs and members of Plaintiff ACLU of Maryland, have suffered, or imminently will suffer, harm, including stigma, humiliation and/or emotional distress, loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, threatened disruption of their military service (including loss of promotion and other career opportunities), and violations of their constitutional right to equal protection. Defendants’ conduct continues to violate the equal protection rights of men and women who are transgender on a daily basis and is the proximate cause of widespread harm among Plaintiffs.
154. Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of their Fifth Amendment rights to equal protection.
COUNT II (Against All Defendants) VIOLATION OF SUBSTANTIVE DUE PROCESS 155. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 156. The substantive component of the Fifth Amendment’s Due Process Clause includes not only the privileges and rights expressly enumerated by the Bill of Rights, but also includes the fundamental rights implicit in the concept of ordered liberty.
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157. The Fifth Amendment bars certain government actions regardless of the fairness of the procedures used to implement them, particularly conduct that is so arbitrary as to constitute an abuse of governmental authority.
158. As a result of the Transgender Service Member Ban, men and women who are transgender, including Individual Plaintiffs, have suffered, or will imminently suffer, a violation of their right to substantive due process because, due to their transgender status, and without any reasoned basis, they are denied an opportunity to demonstrate their continued fitness for duty; the ability to enlist in the U.S. Armed Forces despite being fit to serve; and/or the opportunity to receive medical care on an equal basis as service members who are not transgender. Moreover, the Transgender Service Member Ban unfairly and indefensibly strips Individual Plaintiffs of opportunities and benefits previously recognized by DoD’s Open Service Directive, on which they relied.
159. President Trump issued the Transgender Service Member Ban, directing that: (i) transgender status is a basis for discharge, and current service members who are transgender are barred from serving in the U.S. Armed Forces, irrespective of their ability to demonstrate their fitness to serve (§ 1(b)); (ii) enlistment in the military or commissioning as an officer by men and women who are transgender is prohibited, irrespective of their ability to demonstrate their fitness to serve (§ 2(a)); and (iii) currently serving transgender service members are denied medically necessary surgical care, including in cases where individuals are stable in their gender transition and able to demonstrate their fitness to serve on the same basis as other service members (§ 2(b)). Each of these three policies—and the Transgender Service Member Ban as a whole—violates Plaintiffs’ rights to substantive due process.
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160. The Defendants directly and proximately caused, and continue to cause, the violation of Plaintiffs’ rights to substantive due process under the law.
161. As a result of the policies, practices, and conduct of the Defendants, men and women who are transgender, including Individual Plaintiffs and members of Plaintiff ACLU of Maryland, have suffered, or imminently will suffer, harm, including stigma, humiliation and/or emotional distress, loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, disruption of their military service (including loss of promotion and other career opportunities), and violations of their constitutional right to substantive due process. Defendants’ conduct continues to violate the substantive due process rights of men and women who are transgender on a daily basis and is the proximate cause of widespread harm among Plaintiffs.
162. Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of their Fifth Amendment rights to substantive due process.
COUNT III (Against All Defendants) VIOLATION OF 10 U.S.C. § 1074
163. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs.
164. Pursuant to 10 U.S.C. § 1074(a)(1), members of the United States armed services, including active duty and reserve members, are entitled to medical care in military treatment facilities.
165. Surgery that is medically necessary and indicated for the treatment of a diagnosis of gender dysphoria is “medical care” that is covered by the statutory right under 10 U.S.C. §
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1074(a)(1). As a result of the Transgender Service Member Ban, transgender service members, including Individual Plaintiffs, have suffered, or will imminently suffer, a violation of this statutory right.
166. Section 2(b) of the Transgender Service Member Ban “halt[s] all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Section 2(b) takes effect on March 23, 2018, but DoD has already cancelled planned medical procedures for transgender service members, including for Plaintiffs Cole and Doe.
167. The Defendants directly and proximately caused, and continue to cause, the violation of Plaintiffs’ right to medical care under 10 U.S.C. § 1074(a)(1).
168. As a result of the policies, practices, and conduct of the Defendants, transgender service members, including Individual Plaintiffs, have suffered, or imminently will suffer, harm, including denial of and lack of access to medical benefits. Defendants’ conduct continues to violate Individual Plaintiffs’ rights under 10 U.S.C. § 1074(a)(1). Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of 10 U.S.C. § 1074(a)(1).
169. Defendants, including the President, cannot act in contravention of a validly enacted statute. Their actions in establishing, implementing, and enforcing the ban on surgical care are ultra vires. Moreover, DoD’s actions in implementing and enforcing the ban are not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2).
RELIEF REQUESTED Wherefore, Plaintiffs respectfully request that this Court:
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A. Issue a declaratory judgment that the policies and directives encompassed in President Trump’s Memorandum for the Secretary of Defense and the Secretary of Homeland Security, dated August 25, 2017 and entitled “Military Service by Transgender Individuals” violates the equal protection component of the Fifth Amendment to the U.S. Constitution, and is invalid on its face and as applied to Plaintiffs;
B. Issue a declaratory judgment that the policies and directives encompassed in President Trump’s Memorandum for the Secretary of Defense and the Secretary of Homeland Security, dated August 25, 2017 and entitled “Military Service by Transgender Individuals,” violates the Fifth Amendment’s guarantee of substantive due process, and is invalid on its face and as applied to Plaintiffs;
C. Issue an Order preliminarily and permanently enjoining the Defendants from implementing and enforcing the policies and directives encompassed in President Trump’s Memorandum for the Secretary of Defense and the Secretary of Homeland Security, dated August 25, 2017 and entitled “Military Service by Transgender Individuals.”
D. Award reasonable attorneys’ fees and allowable costs of court; and E. Award such other and further relief as it may deem appropriate and in the interests
of justice.
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Case 1:17-cv-02459-MJG Document 39 Filed 09/14/17 Page 42 of 42

CERTIFICATE OF SERVICE I hereby certify that on this 14th day of September, 2017, a copy of the foregoing was served via electronic mail, pursuant to agreement, on the following counsel:

Peter J. Phipps Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch Phone: (202) 616-8482 // (412) 894-7421 Peter.Phipps@usdoj.gov

/s/ Marianne F. Kies Marianne F. Kies

 
 Case 1:17-cv-02459-MJG Document 84 Filed 11/21/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al.

*

Plaintiffs

*

vs.

* CIVIL ACTION NO. MJG-17-2459

DONALD J. TRUMP et al.

*

Defendants

*

*

*

*

*

*

*

*

*

*

PRELIMINARY INJUNCTION

For reasons stated in the Memorandum And Order Re: Motions

issued herewith,

Defendants, Donald J. Trump, in his official capacity as

President of the United States, James Mattis, in his official

capacity as Secretary of Defense, Ryan McCarthy, in his official

capacity as Acting Secretary of the U.S. Department of the Army,

Richard Spencer, in his official capacity as Secretary of the

U.S. Department of the Navy, and Heather Wilson in her official

capacity as Secretary of the U.S. Department of the Air Force,

Are hereby enjoined and shall not enforce or implement the

following policies and directives encompassed in President

Trump’s Memorandum for the Secretary of Defense and the

Secretary of Homeland Security, dated August 25, 2017, and

entitled “Military Service by Transgender Individuals:”

I am directing the Secretary of Defense, and the Secretary of Homeland Security with

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respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.

Presidential Memorandum § 1(b).

The Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, shall:

(a) maintain the currently effective policy

regarding accession of transgender

individuals into military service

beyond January 1, 2018, until such time

as the Secretary of Defense, after

consulting with the Secretary of

Homeland

Security,

provides

a

recommendation to the contrary that I

find convincing; and

(b) halt all use of DoD or DHS resources to

fund

sex-reassignment

surgical

procedures for military personnel,

except to the extent necessary to

protect the health of an individual who

has already begun a course of treatment

to reassign his or her sex.

Presidential Memorandum § 2.

This preliminary injunction shall remain in effect until

such time, if ever, that this Preliminary Injunction is

rescinded or modified by further Order of this Court.

Plaintiffs are not required to provide any security in

compliance with Rule 65(c) of the Federal Rules of Civil

Procedure.

2

Case 1:17-cv-02459-MJG Document 84 Filed 11/21/17 Page 3 of 3 Plaintiffs shall arrange a case planning conference to be held by December 15, 2017, to discuss the scheduling of further proceedings herein. SO ORDERED, on Tuesday, November 21, 2017.
/s/__________ Marvin J. Garbis United States District Judge
3

 
 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al.

*

Plaintiffs

*

vs.

* CIVIL ACTION NO. MJG-17-2459

DONALD J. TRUMP et al.

*

Defendants

*

*

*

*

*

*

*

*

*

*

MEMORANDUM AND ORDER RE: MOTIONS

The Court has before it Plaintiffs’ Motion for Preliminary

Injunction [ECF No. 40], Defendants’ Motion to Dismiss [ECF No.

52], and the materials submitted relating thereto. The Court

has reviewed the exhibits, considered the declarations submitted

by the parties, held a hearing, and has had the benefit of the

arguments of counsel. Any findings of facts stated herein are

based upon the Court’s evaluation of the evidence and the

inferences that the Court has found it reasonable to draw from

the evidence.

I. INTRODUCTION In June 2015, then-Secretary of Defense Ashton Carter
issued a statement characterizing the regulations that were in effect at that time relating to transgender1 individuals serving

1

Men and women who are transgender have a gender different

1

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in the military as “an outdated, confusing, inconsistent approach that’s contrary to our value of service and individual merit causing uncertainty that distracts commanders from our core missions.” Statement by Secretary of Defense Ash Carter on DoD2 Transgender Policy (July 13, 2015), Pls.’ Mot. Ex. 28, ECF No. 40-31. Secretary Carter created a working group to study “the policy and readiness implications of welcoming transgender persons to serve openly.” Id. The working group included representatives of the leadership of the Armed Forces; the Joint Chiefs of Staff; the service secretaries; and personnel, training, readiness, and medical specialists from across the Department. See id.; Carson ¶¶ 1, 8–10, ECF No. 40-37.3 The working group performed a systematic review including commissioning studies4 and meetings with transgender service members, outside experts, medical personnel, military leaders, allied militaries, and others. Carson ¶¶ 1, 8–27. After the year-long study, the working group ultimately concluded that “[o]pen service by transgender service members would not impose

from the one assigned to them at birth. See, e.g., Brown Decl.

¶¶ 20-23, ECF No. 40-32; Pls.’ Mot. Ex. C (“the RAND Report”) 5-

6, 75, ECF No. 40-35.

2

Department of Defense.

3

The Hon. Brad R. Carson served as the Acting Under

Secretary of Defense for Personnel and Readiness from April 2,

2015 to April 8, 2016. Carson ¶ 1, ECF No. 40-37.

4

Including a study conducted by the RAND Corporation—a

nonpartisan, nonprofit military think tank founded by the U.S.

Air Force. Rand Report, ECF No. 40-35.

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any significant burdens on readiness, deployability, or unit cohesion.” Wilmoth ¶ 23, ECF No. 40-38.
On June 30, 2016, then-Secretary of Defense Carter issued a directive rescinding the policy of discriminating against men and women who are transgender. Open Serv. Dir., Pls.’ Mot. Ex. 1, ECF No. 40-4. The Open Service Directive provided that “no otherwise qualified Service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity.” Id. at Attach. § 1(a). Men and women who are transgender are “subject to the same standards as any other Service member of the same gender.” Id. at Attach. § 1(b). The Directive further provided that medical conditions affecting transgender service members would be treated “in a manner consistent with a Service member whose ability to serve is similarly affected for reasons unrelated to gender identity or gender transition.” Id. at Attach. § 1(c). These medical services included medical treatment necessary to transition gender while serving. Id. at Attach. § 3(a). The Directive also announced that individuals wishing to join the military would not be prohibited from doing so solely because they are transgender, although there were additional stringent medical requirements to ensure fitness for
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duty. Id. at Attach. § 2. The implementation of the accession5 policy was scheduled to begin “[n]ot later than July 1, 2017.”6 Id. at Attach. § 2(a).
On June 30, 2017, the day before new enlistments of transgender persons were scheduled to begin, current Secretary of Defense Jim Mattis announced that it was necessary to defer new transgender enlistments for an additional six months to January 1, 2018, while he reviewed the policy. Mattis Mem., Pls.’ Mot. Ex. 8, ECF No. 40-11. He added that his announcement did not otherwise change the Open Service Directive and that “we will continue to treat all Service members with dignity and respect.” Id.
Shortly thereafter, on July 26, 2017, President Trump precipitated a change to the policy in force by announcing on Twitter7 that “the United States will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.” Pls.’ Mot. Ex. 19, ECF No. 40-22. President Trump

5

Accession refers to the process of bringing new enlisted

recruits and officer candidates into the military.

6

The deadline allowed the DoD a year to prepare for

implementation. Given that the pre-established date for the

Presidential election was November 8, 2016, it was understood

that the deadline extended into a new Administration.

7

President Trump later claimed that his Twitter announcement

did the military a “great favor” by ending the “confusing issue”

of transgender service. Cooper, Trump Says Transgender

Ban Is a ‘Great Favor’ for the Military, N.Y. Times (Aug. 10,

2017), Pls’. Mot. Ex. 9, ECF No. 40-12.

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formalized the transgender service member ban on August 25, 2017, in a Memorandum (“the President’s Memorandum”) stating that in his judgment, the DoD had “failed to identify a sufficient basis to conclude” that the Open Service Directive “would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.” President’s Mem. § 1(a), Pls.’ Mot. Ex. 18, ECF No. 40-21. The memorandum addressed, and rescinded, each component of the Open Service Directive. Id. at §§ 1(b), 2.
The instant lawsuit was filed on August 8, 2017, and three others8 have been filed in response to the President’s policy change. Plaintiffs here seek declaratory and injunctive relief (including a Motion for Preliminary Injunction). Defendants seek dismissal of the Amended Complaint [ECF No. 39] pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and denial of Plaintiffs’ Motion for Preliminary Injunction.
For reasons as stated herein, the Court GRANTS Plaintiffs’ Motion for Preliminary Injunction [ECF No. 40], and GRANTS IN

8

Doe 1 v. Trump, No. 17-cv-0159-CKK, filed Aug. 9, 2017 in

the United States District Court for the District of Columbia;

Karnoski v. Trump, No. 17-cv-01297-MJP, filed Aug. 28, 2017 in

the United States District Court for the Western District of

Washington at Seattle; Stockman v. Trump, No. 17-cv-1799-JGB-KK,

filed on Sept. 5, 2017 in the United States District Court for

the Central District of California.

5

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PART and DENIES IN PART Defendants’ Motion to Dismiss [ECF No. 52].
II. BACKGROUND A. Transgender Military Policy Prior to June 2016 “On September 20, 2011, the military policy known as ‘Don’t
Ask, Don’t Tell’ (DADT) ended, allowing gay, lesbian and bisexual service members to serve openly.” Gates & Herman, Transgender Military Service in the United States (May 2014), ECF No. 40-7. However, until June 2016, military policies continued to exclude transgender people from serving openly. Id. Transgender individuals wanting to join the military were prohibited from doing so, and transgender individuals already serving were subject to discharge if their condition became known. Id. See also Brown Decl. 9-14, ECF No. 40-32 (noting that pre-2016 military policy listed “Sexual Gender and Identity Disorders” among conditions that rendered a service member unfit and subject to discharge).
B. Transgender Open Service Directive On June 30, 2016, after a year-long study, then-Secretary of Defense Carter issued a Directive–type Memorandum (“DTM”) mandating the establishment of policy and procedures for “the
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retention, accession, separation, in-service transition, and medical coverage for transgender personnel serving in the Military Services.” Open Serv. Dir., Pls.’ Mot. Ex. 1, ECF No. 40-4. The DTM stated:
The policy of the Department of Defense is that service in the United States military should be open to all who can meet the rigorous standards for military service and readiness. Consistent with the policies and procedures set forth in this memorandum, transgender individuals shall be allowed to serve in the military. Id. at 2. The DTM procedures included three main components. First, retention. Effective June 30, 2016, “no otherwise qualified Service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity.” Id. at Attach. § 1(a). Transgender service members became subject to the same standards as any other service member of the same gender. Id. at Attach. § 1(b). Second, accession. Not later than July 1, 2017, the DoD Instruction 6130.03 was to be updated to reflect changed policies and procedures related to medical standards for entry into the military. Id. at Attach. § 2(a). A history of gender
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dysphoria9 continued to be disqualifying unless the applicant was medically-certified as having been “stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months.” Id. Also, a history of medical treatment with gender transition continued to be disqualifying unless the applicant had completed medical treatment and had been stable in the preferred gender for 18 months, and if the applicant was receiving hormone treatment, the individual had been stable on such treatment for 18 months. Id. Further, a history of sex-reassignment surgery continued to be disqualifying unless a period of 18 months had passed since the most recent surgery, no additional surgeries were required, and the applicant had no functional limitations or complications persisting from the surgery. Id. The Secretaries of the Military Departments and Commandant of the United States Coast Guard could waive the 18-month period in individual cases. Id. at Attach. § 2(b).
Third, sex reassignment surgery. Effective October 1, 2016, the DTM procedures allowed for in-service gender transition and

9

Transgender status alone does not constitute a medical

condition; some transgender individuals experience significant

distress due to the gender-sex mismatch and are considered to

have a medical condition called gender dysphoria. RAND Report

5-6, 75, ECF No. 40-35. This condition can be medically treated

with some combination of psychosocial, pharmacological (mainly

hormonal), or surgical care. Id. at 6.

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provided for further guidance on the provision of necessary medical care and treatment to transgender service members. Id. at Attach. §§ 3, 4.
In addition, the DTM included an equal opportunity statement and clarified the DoD’s position, “consistent with the U.S. Attorney General’s opinion, that discrimination based on gender identity is a form of sex discrimination.” Id. at Attach. § 5(a). Education and training materials were to be developed and disseminated to each Military Department by no later than October 1, 2016, and each Military Department was directed to issue implementing guidance and a written training and education plan by November 1, 2016. Id. at Attach. §§ 6, 7.
Consistent with the DTM directives, the DoD issued an Implementation Handbook on September 30, 2016. DoD, Transgender Service in the U.S. Military: An Implementation Handbook, ECF No. 40-9.
C. President’s Memorandum and Interim Guidance On June 30, 2017, Secretary of Defense James Mattis deferred implementation of the DTM’s directive regarding accession until January 1, 2018. Mattis Mem., Pls.’ Mot. Ex. 8, ECF No. 40-11.
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Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 10 of 53
On July 26, 2017, President Trump published three tweets under the handle @realDonaldTrump:

Pls.’ Mot. Ex. 19, ECF No. 40-22.

Approximately a month later, on August 25, 2017, President

Trump issued a memorandum entitled “Presidential Memorandum for

the Secretary of Defense and the Secretary of Homeland

Security.” President’s Mem., Pls.’ Mot. Ex. 18, ECF No. 40-21.

In the first section, President Trump stated:

Until June 2016, the Department of

Defense (DoD) and the Department of Homeland

Security

(DHS)

(collectively,

the

Departments) generally prohibited openly

transgender individuals from accession into

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the United States military and authorized the discharge of such individuals. Id. at § 1. President Trump directed the Departments’ Secretaries “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 . . . .” Id. at § 1(b) (“the Retention Directive”). He further directed the Secretaries to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018 . . . .” Id. at § 2(a) (“the Accession Directive”). President Trump also directed the Secretaries to “halt all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Id. at § 2(b) (“the Sex Reassignment Surgery Directive”). The Accession Directive is to take effect on January 1, 2018; the Retention Directive and the Sex Reassignment Surgery Directive are to take effect on March 23, 2018. Id. at § 3. President Trump further directed: By February 21, 2018, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall submit to me a plan for implementing both the general policy set forth in section 1(b) of this
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memorandum and the specific directives set forth in section 2 of this memorandum. Id. He added that “no action may be taken” under the Retention Directive against transgender individuals currently serving in the United States military until the Secretary of Defense has determined how to address such individuals. Id. On September 14, 2017, Secretary of Defense James Mattis issued a memorandum establishing an interim policy until the directives take effect. Defs.’ Mem., ECF No. 45, Ex. 1 (“Interim Guidance”). Under the Interim Guidance policy, there is no immediate effect on individual service members pending the implementation plan. Id. The Interim Guidance states that “[n]ot later than February 21, 2018, [Secretary Mattis] will present the President with a plan to implement the policy and directives in the Presidential Memorandum.” Id. at 1.
D. The Instant Lawsuit The individual plaintiffs10 and the American Civil Liberties Union of Maryland, Inc. (“ACLU”) (collectively, “the Plaintiffs”) have sued Donald J. Trump in his official capacity as the President of the United States, James Mattis in his official capacity as Secretary of Defense, Ryan McCarthy in his official capacity as Acting Secretary of the U.S. Department of 10 Described individually herein in Section II.E.
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the Army, Richard Spencer in his official capacity as Secretary of the U.S. Department of the Navy, and Heather Wilson in her official capacity as Secretary of the U.S. Department of the Air Force (collectively, “the Defendants”) for declaratory and injunctive relief. Am. Compl., ECF No. 39.
Plaintiffs seek a declaratory judgment that the policies and directives encompassed in President Trump’s Memorandum dated August 25, 2017, violate the Fifth Amendment’s guarantee of equal protection and substantive due process and are invalid on their face and as applied to Plaintiffs. The Amended Complaint asserts three causes of action:
 Count I – Violation of the Equal Protection Component of the Fifth Amendment’s Due Process Clause
 Count II – Violation of Substantive Due Process  Count III – Violation of 10 U.S.C. § 1074. Plaintiffs’ Motion for Preliminary Injunction [ECF No. 40] seeks to bar Defendants from enforcing the policies and directives encompassed in President Trump’s August 25, 2017, Memorandum until such time as the Court renders a final judgment on the merits of this action. On October 12, 2017, Defendants filed a Motion to Dismiss [ECF No. 52], seeking dismissal pursuant to Rules11 12(b)(1) and
11 All “Rule” references cited herein are to the Federal Rules
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12(b)(6) and denial of any Preliminary Injunction. Defendants assert that this Court does not have jurisdiction over this action because Plaintiffs have not suffered an injury sufficient to establish standing and because the issues presented are not ripe for review. Defendants contend that “Plaintiffs have not stated plausible claims that the President’s decision to maintain the status quo while Secretary Mattis studies military service by transgender individuals violates equal protection, due process, or Federal statutes.” Reply 14, ECF No. 77.
In addition to the parties’ briefs and arguments, the Court has received and considered the following briefs from Amicus Curiae in support of Plaintiffs’ Motion for Preliminary Injunction:
 The Trevor Project12 [ECF No. 62],  Retired Military Officers and Former National Security
Officials [ECF No. 71], and  Amici States Massachusetts, California, Connecticut,
Delaware, Hawaii, Illinois, Iowa, Maryland, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and the District of Columbia [ECF No. 73].
of Civil Procedure. 12 Described as “the nation’s largest lesbian, gay, bisexual, transgender, queer, and questioning (“LGBTQ”) youth crisis intervention and suicide prevention organization.” Trevor Project Amicus Brief 1, ECF No. 62.
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E. The Individual Plaintiffs13 1. Petty Officer First Class Brock Stone
Brock Stone (“Stone”) is 34 years old and has served 11 years in the United States Navy, including a 9-month deployment to Afghanistan. Stone is currently assigned, until August 2020, to a unit at Fort Meade in Maryland, where he works as a computer analyst. Stone was awarded an achievement medal in connection with his deployment, and he has received multiple other commendations, including the Joint Commendation Medal, the Navy Commendation Medal, the Afghan Campaign Medal, a flag letter of commendation, and multiple recommendations for early promotion. He is currently eligible for promotion to Chief Petty Officer. Stone’s goal is to serve for at least 20 years and qualify for retirement benefits. His current contract runs until 2023, which would end three years short of his achieving enough years in service to meet his retirement goal.
Stone has been undergoing hormone therapy as a medicallynecessary part of his gender transition. Since arriving at Fort Meade in July 2017, he has received medically-necessary treatment related to his gender transition at Walter Reed National Military Medical Center in Bethesda, Maryland. Prior to 13 Plaintiffs’ genders are referred to herein by the gender as recognized by the Defense Enrollment Eligibility Report System (“DEERS”), except in one case as noted where the formal changed gender remains pending.
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his transfer to Fort Meade, Stone was close to finalizing a medical treatment plan that included surgery. After the transfer in July 2017, he had to restart the treatment plan, but it is now in the final approval stage. The treatment plan will be sent to the medical review board at Walter Reed in November 2017 and thereafter will be submitted to Navy Medical East for final medical approval. Plaintiffs assert that it is “highly likely that Petty Officer Stone will not receive one or both of his medically-necessary surgeries before March 23[, 2018].” Opp. Dismiss 11, ECF No. 66.
2. Staff Sergeant Kate Cole Kate Cole (“Cole”) is 27 years old and has served in the United States Army for almost ten years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman. Cole is currently stationed at Fort Polk, Louisiana, working as a Cavalry Scout, where she operates with a tank unit. Since enlisting at age 17, Cole has received seven achievement medals and two Army commendation medals. She recently received orders to enroll in Drill Sergeant School starting on January 3, 2018, with an anticipated graduation date of March 7, 2018. Following her return from Drill Sergeant
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School, she is scheduled to change station from Fort Polk, Louisiana to Fort Benning, Georgia.
Cole has been undergoing hormone therapy and was scheduled to receive medically-necessary surgery related to her gender transition in or around September 2017. On September 8, 2017, she was informed that her surgical treatment was denied and her pre-surgical consultation was cancelled. Cancellation has been remedied, but “Cole’s treatment plan calls for two additional surgeries, neither of which she will be able to undergo before March 23[, 2018], and one of which she is not even eligible for until after that date.” Opp. Dismiss 11, ECF No. 66.
3. Senior Airman John Doe John Doe (“Doe”) is 25 years old and has served for approximately six years on active duty in the United States Air Force, during which he was awarded “airman of the year.” Doe also served in Qatar for a six-month deployment. Doe is currently stationed at Little Rock Air Force Base, Arkansas and serves as the suicide prevention and interpersonal violence instructor for the base and is pursuing cryogenics certification. Doe reenlisted on September 9, 2017. In 2014, Doe began his gender transition, including undergoing certain surgeries, for which he paid out-of-pocket.
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He has been undergoing hormone therapy as a medically-necessary part of his gender transition and planned to receive an additional medically-necessary surgery in August 2017. Doe was informed by email from the medical command at the base where he was scheduled to undergo the surgery that all gender-transitionrelated surgeries were on hold. Defendants assure that, pursuant to the Interim Guidance, the surgery was not deleted from Doe’s treatment plan and can be rescheduled at his request.
4. Airman First Class Seven Ero George Seven Ero George (“George”) is 41 years old and has been enlisted in the Air National Guard since 2015. George is currently stationed at the Selfridge Air National Guard Base, Michigan and serves in the base security force, where he is a member of the base Honor Guard. He performs military funeral honors for deceased veterans, retirees, and active duty members; provides dignified transfers, and performs color guard details. George has a Bachelor’s Degree in General Studies from the University of Michigan and is currently taking additional training as a nurse. He is scheduled to complete his Associate’s Degree in nursing in December 2017 and plans to pursue a program to earn his Bachelor’s Degree in nursing, which he expects to be able to complete in 12-18 months.
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George intends to seek a commission, which subjects him to the Army’s accession policies. He has been unable to pursue a commission to date because the historical ban has not yet expired and because his gender has not yet been updated in the Defense Enrollment Eligibility Report System (“DEERS”), which still lists him as female. George believes all required paperwork has been submitted to update his DEERS gender, his letters of recommendation are lined up, and he expects to be ready to commission immediately upon the lift of the ban in January 2018.
As a medically-necessary part of his gender transition, George has been undergoing hormone therapy and has undergone a medically-necessary surgery, but no further surgeries are required under his medical treatment plan.
5. Petty Officer First Class Teagan Gilbert Teagan Gilbert (“Gilbert”) is 31 years old and has served in the United States Navy for 13 years, including a one-year deployment to Afghanistan. Gilbert is currently serving as an information and space systems technician in the Naval Reserve stationed in Phoenix, Arizona. She has been pursuing an undergraduate degree as a prerequisite to commission as an officer and is scheduled to complete her Bachelor’s Degree in
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Earth and Space Exploration in the Spring of 2019, as well as an undergraduate certificate in Geographic Information Systems. Gilbert’s current term of service expires in February 2018, and she is in the process of reenlisting in the Navy for another six-year term.
Gilbert has been undergoing hormone therapy as a medicallynecessary part of her gender transition. She has a medical appointment scheduled for January 2018 to update her treatment plan to include medically-indicated surgical treatment.
6. Technical Sergeant Tommie Parker Tommie Parker (“Parker”) is 54 years old and has served in the Marine Corps for four years and has served in the Air National Guard for 26 years. During her sixteen plus years of active duty, she has had deployments to Okinawa with the Marine Corps and Germany with the Air National Guard. She is currently stationed at Stewart Air National Guard Base, New York, working as a fuel technician. Parker’s current term of service expires in January 2018. Her commanding officer informed her that he would recommend her for active duty reenlistment for an additional term of three years thereafter. Parker is eligible for retirement in threeand-a-half years, and her goal is to serve until retirement.
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Parker is undergoing hormone therapy as a medicallynecessary part of her gender transition and is currently paying out-of-pocket while waiting for her transition plan to be fully approved. She does not intend to have any transition-related surgeries.
F. The D.C. Court Decision On Monday, October 30, 2017, a memorandum and order was issued in a related case, Doe 1 v. Trump, in the United States District Court for the District of Columbia (“D.C. Court”). The D.C. Court preliminarily enjoined implementation of the Retention Directive and the Accession Directive but not the Sex Reassignment Surgery Directive. Doe 1 v. Trump, --- F. Supp. 3d ----, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017). In Doe 1, current and aspiring transgender service members challenged the Accession, Retention, and Sex Reassignment Surgery Directives on the grounds that the Directives violated plaintiffs’ Fifth Amendment equal protection and due process rights. Id. at *1. The Doe 1 plaintiffs also argued that the defendants were estopped from rescinding the rights, benefits, and protections promised to the plaintiffs. Id. at *2.
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The D.C. Court held that the Doe 1 plaintiffs had standing to challenge the Accession and Retention Directives but lacked standing to challenge the Sex Reassignment Surgery Directive. Id. The court found that the Presidential Memorandum unequivocally directed the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge and that there was no reason to believe that these directives would not be executed. Id. at *1. The court held that the plaintiffs had established that they would be injured by these directives, “due both to the inherent inequality they imposed, and the risk of discharge and denial of accession that they engender. Further delay would only serve to harm the Plaintiffs.” Id.
The D.C. Court also found that the Doe 1 plaintiffs were likely to prevail on their Fifth Amendment challenge of the Accession and Retention Directives. Id. at *2. First, the court found that “[a]s a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny.” Id. at *2. The Directives could not survive such scrutiny because they were not “genuinely based on legitimate concerns regarding military effectiveness or
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budget constraints, but [we]re instead driven by a desire to express disapproval of transgender people generally.” Id.
More specifically, the court found that a number of factors —including the breadth of the exclusion, the unusual circumstances surrounding the President’s announcement, the reasons given for the Directives not appearing to be supported by any facts, and the recent rejection of those reasons by the military itself—“strongly suggest that plaintiffs’ Fifth Amendment claim is meritorious.” Id. Finally, the court dismissed without prejudice Plaintiffs’ estoppel claim, because the complaint “lack[ed] allegations of the sort of particularized representations, reliance, or government misconduct that could justify estoppel against the government.” Id.
The D.C. Court granted in part and denied in part the Doe 1 plaintiffs’ motion for a preliminary injunction, enjoining the enforcement of the Accession and Retention Directives and reverting the policy to the status quo that had existed before the Presidential Memorandum. Id. The court also granted in part and denied in part the defendants’ motion to dismiss the lawsuit, thus dismissing plaintiffs’ estoppel challenge and dismissing the plaintiffs’ challenge of the Sex Reassignment Surgery Directive for lack of jurisdiction. Id. The D.C. Court
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found that none of the plaintiffs in that case could demonstrate a non-speculative injury-in-fact with respect to the Sex Reassignment Surgery Directive. Id. at *51.
III. DISCUSSION A. The Court’s Jurisdiction 1. Legal Standard a. Standing The issue of plaintiff standing presents a threshold
jurisdictional question because “Article III of the U.S. Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017), cert. denied sub nom. Beck v. Shulkin, 137 S. Ct. 2307 (2017) (quoting U.S. Const. art. III, § 2). “The core goal of the standing inquiry is to ensure that a plaintiff bringing an action has enough of a stake in the case to litigate it properly.” Pye v. United States, 269 F.3d 459, 466 (2001). The plaintiff bears the burden of proving jurisdiction by establishing the three “irreducible minimum requirements” of standing:
(1) an injury-in-fact (i.e., a concrete and particularized invasion of a legally protected interest);
(2) causation (i.e., a fairly traceable connection between the alleged injury
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in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely speculative that the plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing suit). Id. (quoting David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)); Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, as revised (May 24, 2016). At the pleading stage, plausible factual allegations may suffice to demonstrate that each element of standing has been adequately pleaded. Spokeo, 136 St. Ct. at 1547; Beck, 848 F.3d at 270 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). However, the standing analysis is “especially rigorous when reaching the merits of the dispute would force [the court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). A defendant may challenge standing at the motion to dismiss stage either facially or factually. Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017)(quoting Beck, 848 F.3d at 270). “In a facial challenge, the defendant contends that the complaint ‘fails to allege facts upon which [standing] can be based,’ and the plaintiff ‘is afforded the same procedural protection’ that exists on a motion to dismiss.” Id.
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(quoting Adams, 697 F.2d at 1219). In a factual challenge, however, a trial court may look beyond the complaint to determine if there are facts to support the jurisdictional allegations. Id. “Unless the jurisdictional facts are intertwined with the facts central to the merits of the dispute, the district court may . . . resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits.” U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) (citations omitted).
b. Ripeness A second Article III threshold inquiry is whether the dispute is ripe for adjudication. Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 198 (4th Cir. 2013). The requirement that a case be ripe for decision is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n. 18 (1993). To determine if a case is ripe, the Fourth Circuit balances “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Cooksey v. Futrell, 721 F.3d 226, 2226 (4th Cir. 2013) (quoting
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Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)); Lansdowne, 713 F.3d at 198.
“[A] case is ‘fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.’” Lansdowne, 713 F.3d at 198 (quoting Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)). “The hardship prong is measured by the immediacy of the threat and the burden imposed on the [plaintiff].” Id. at 199 (quoting Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208–09 (4th Cir. 1992)).
2. Injury-in-fact There is no dispute that the Plaintiffs have satisfied the causation and redressability elements of standing. While the matter is disputed, the Court finds that Plaintiffs have met their burden to satisfy the need for an injury-in-fact. An injury-in-fact is the “[f]irst and foremost” of standing’s three elements. Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998). To suffer an injury-in-fact, the plaintiff must have suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). The Spokeo
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court stated that to constitute a concrete injury, an injury “must be ‘de facto’; that is, it must actually exist . . . [that is] ‘real,’ and not ‘abstract.’” Id.
“This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness.” Id. at 1549. A court may find standing based on a threatened injury that is “certainly impending” or if there is a “substantial risk” that the harm will occur. Beck, 848 F.3d at 275 (quoting Clapper, 568 U.S. at 409, 414 n.5).
Defendants contend that the Interim Guidance maintains the status quo while the military studies the “President’s policy directive,” and therefore, they contend that none of the Plaintiffs face a current or imminent threat of injury. Defs.’ Mot. 12, ECF No. 52-1. Defendants state that “it is unclear whether those currently serving members will be affected by the future policy regarding service by transgender individuals once it is finalized and implemented.” Id. at 2.
When reviewing the effect of the directives in the President’s Memorandum, the Court finds persuasive and agrees with the D.C. Court’s analysis of the import of the President’s Memorandum. See Doe 1, 2017 WL 4873042 at *16-18 (“there is a substantial likelihood that transgender individuals will be indefinitely prevented from acceding to the military as of
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January 1, 2018, and that the military shall authorize the discharge of current service members who are transgender as of March 23, 2018.”). As Plaintiffs allege, the result of the President’s Memorandum, once implemented, constitutes a return to the policy in place prior to June 2016 “until President Trump is personally persuaded that a change is warranted.” Am. Compl. ¶ 107. Although there is no immediate implementation pending the provision of the requested plan, the Interim Guidance states that “[n]ot later than February 21, 2018, [Secretary Mattis] will present the President with a plan to implement the policy and directives in the Presidential Memorandum.” Interim Guidance 1, ECF No. 45, Ex. 1. “The Court must and shall assume that the directives of the Presidential Memorandum will be faithfully executed.” Doe 1, 2017 WL 4873042, at *17. Therefore, the protections of the Interim Guidance expire on February 21, 2018.
The Court cannot interpret the plain text of the President’s Memorandum as being a request for a study to determine whether or not the directives should be implemented. Rather, it orders the directives to be implemented by specified dates. President’s Mem. § 3, Pls.’ Mot. Ex. 18, ECF No. 40-21 (“shall take effect on January 1, 2018 [and] March 23, 2018”).
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a. Retention Directive Injury The Retention Directive, which authorizes the discharge of service members from the military on the basis of transgender status alone, subjects all of the individual Plaintiffs14 to the threat of discharge as administratively unfit even if they meet the military’s demanding medical fitness standards. While it is possible, as Defendants contend, that none of the Plaintiffs will be discharged on March 23, 2018, they certainly face a substantial risk of being discharged solely on the basis of being transgender. Importantly, Plaintiffs allege that becoming “subject to discharge” solely for being transgender is a loss of a right they have had since June 2016, withdrawing the guarantee that protects their ability to serve on terms equal to those applied to others. Am. Compl. Count I, ECF No. 39. The Retention Directive effectively constitutes a revocation of rights that transgender people had been given. This revocation of equal protection is an injury. See, e.g., Planned Parenthood Of S.C. Inc. v. Rose, 361 F.3d 786, 790 (4th Cir. 2004) (“Discriminatory treatment is a harm that is sufficiently particular to qualify as an actual injury for standing purposes.”). 14 Plaintiff Stone is a member of the ACLU of Maryland, which gives the ACLU associational standing on the basis of the injuries experienced by Stone. Am. Compl. ¶ 18; Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
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Further, Plaintiffs allege that they are now suffering from the uncertainty, the destabilization of their lives and careers, and the stigma associated with being singled out as unfit for service. Am. Compl. ¶¶ 142-143. Stigmatic injury can be held sufficient to support standing. See Allen v. Wright, 468 U.S. 737, 755 (1984) (finding that “stigmatizing injury often caused by racial discrimination” is a type of “noneconomic injury” that is “sufficient in some circumstances to support standing”). In the instant case, the Court finds that Plaintiffs’ stigmatization is an additional alleged harm that provides support to Plaintiffs’ standing arguments, but the Court need not, and does not, address whether it would be sufficient on its own.
In sum, the Court finds that Plaintiffs have met their burden to demonstrate standing to challenge the Retention Directive.
b. Accession Directive Injury The Accession Directive prohibits transgender individuals from entering or seeking a commission in the military solely on the basis of their transgender status. The current prohibition is set to expire on December 31, 2017, but the directive in the President’s Memorandum extends the prohibition indefinitely.
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Defendants contend that Plaintiffs have not been injured by the Accession Directive because no one has applied for accession into the military and been denied. Defendants assert that Plaintiffs George and Gilbert’s plans to apply for a commission are too speculative and that they could apply for a waiver to allow their accession into the military under the Interim Guidance.
Plaintiffs George and Gilbert allege that they face imminent harm because they will be denied accession into the military as commissioned officers. Am. Compl. ¶¶ 40, 47, ECF No. 39; Decl. George, ECF No. 40-42; Suppl. Decl. George, ECF No. 66-9; Suppl. Decl. Gilbert, ECF No. 66-11. Plaintiff Gilbert has one year of coursework left in her degree before she plans to apply to Officer Candidate School and return to “active duty” status. However, Plaintiff George expects to be ready to commission immediately upon the lift of the ban in January 2018. Plaintiffs clarified at the hearing that George
is ready, willing, and able to apply to directly commission as an officer as soon as he can. All he’s been waiting for is for the final change in his gender market in the [DEERS] system to go through. He submitted all that paperwork. It should go through any minute. He wants to apply the first day that he can. . . . .
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[H]is ability to commission and his desire to commission are not contingent on him completing that nursing program.
As soon as he can commission, he will. And he would do it on January 1st if he were allowed to do so. Hr’g Tr. 48:4-17. George has demonstrated that he is eligible to commission as an officer. He met with a recruiter in October 2016 to pursue an active duty commission. Suppl. Decl. George, ECF No. 66-9. George’s plan and efforts to implement his plan are not speculative. The Court finds that Plaintiff George is subject to a substantial risk that his attempt to accede into the military as a commissioned officer will be prohibited solely on the basis of his transgender status. Accordingly, the Court finds that Plaintiffs have met their burden to demonstrate standing to challenge the Accession Directive.
c. The Sex Reassignment Surgery Directive The Sex Reassignment Surgery Directive prohibits the expenditure of military resources on sex-reassignment surgical procedures. President’s Mem. § 2(b), ECF No. 40-21. This section takes effect on March 23, 2018. Id. § 3.
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Defendants contend that no Plaintiff can demonstrate injury-in-fact because the military is continuing to provide transition-related medical care under the Interim Guidance. Any cancellations that occurred after the President’s Memorandum have subsequently been remedied, so no one has been denied transition-related medical care. Defendants assert that the Plaintiffs in the instant case, like the plaintiffs in Doe 1, have not “‘demonstrated that they are substantially likely to be impacted’ by the relevant portion of the [President’s] Memorandum.” Defs.’ Reply 8, ECF No. 77 (quoting 2017 WL 4873042, at *24).
In Doe 1, the D.C. Court held that the Doe 1 plaintiffs did not have standing to challenge the Sex Reassignment Surgery Directive because none of them had demonstrated an injury-infact with respect to that Directive. 2017 WL 4873042 at *51. First, the court noted that, for the two Doe 1 plaintiffs who were implicated by the provision, the risk of being impacted was not sufficiently great to confer standing. Id.
One of the Doe 1 plaintiffs alleged that her scheduled transition-related surgery had been canceled. However, the defendants submitted a declaration, which revealed that her application for supplemental health care waiver was currently being processed, and her transition related-surgery had been
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rescheduled for January 4, 2018. Id. at *52. The defendants represented that this date remained unaffected by the Presidential Memorandum. Id. Therefore, the D.C. Court concluded that this plaintiff had failed to show that “she will not receive the surgery prior to the effective date of the Sex Reassignment Surgery Directive.” Id.
A second Doe 1 plaintiff had developed a transition treatment plan but was not planning to begin her treatment until after a long-term deployment in Iraq. Id. The D.C. Court concluded that “[g]iven the possibility of discharge, the uncertainties attended by the fact that she has yet to begin any transition treatment, and the lack of certainty on when such treatment will begin, the prospective harm engendered by the Sex Reassignment Surgery Directive is too speculative . . . .” Id.
In the instant case, Plaintiffs Cole, Doe, Gilbert, and Stone are potentially impacted by the Sex Reassignment Surgery Directive. At the hearing, Plaintiffs asserted that they would rely on Plaintiffs Cole and Stone for standing to challenge the Sex Reassignment Surgery Directive. Hr’g Tr. 62:7-8.
Plaintiff Cole has a final, approved medical plan that calls for two additional surgeries. Suppl. Decl. Cole, ECF No. 66-8. Because Cole will be attending Drill Sergeant School from
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January 3, 2018 until March 7, 2018, it is impossible for her to have both surgeries before the March 23rd deadline. Id.
Plaintiff Stone has a near-final treatment plan that calls for two surgeries, needing only a final stamp of approval, which is not in doubt. Suppl. Decl. Stone, ECF No. 66-13. The plan calls for the first of the surgeries in April 2018. Hr’g Tr. 63:15-17. Although Stone is trying to move the first surgery up to February in an attempt to meet the deadline, it seems unlikely, and the second surgery still needs to be scheduled. Id. at 18-22, Suppl. Decl. Stone, ECF No. 66-13.
Unlike the first plaintiff in Doe 1, Stone and Cole are highly unlikely to complete their medically-necessary surgeries before the effective date of the Directive. Unlike the second plaintiff in Doe 1, there is no lack of certainty regarding when transition treatment will begin for Stone and Cole since treatment has already begun, and Stone and Cole’s surgeries are endangered by the Directive’s deadline.
Plaintiffs also seek to assert a statutory claim in support of their challenge to the Directive. Am. Compl. ¶¶ 163–169, ECF No. 39.15 However, the Court does not find the Amended Complaint
15 Pursuant to 10 U.S.C. § 1074(a), active duty and reserve members of the United States armed services are entitled to medical and dental care in military treatment facilities. Plaintiffs claim that medically-necessary surgery indicated for the treatment of a gender dysphoria diagnosis is “medical care”
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to present factual allegations sufficient to present a plausible statutory claim.
Defendants argue that the exception in the Directive will “cover” the Plaintiffs who will not have completed all of their approved and medically-required sex-reassignment surgeries by the effective date. Section 2(b) directs the Secretaries to “halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” President’s Mem. § 2(b), ECF No. 40-21 (emphasis added). Defendants assert that because “Plaintiffs have in fact started a course of treatment to reassign their sex, and have transition plans either submitted or already in place, the exception may in fact apply to them.” Defs.’ Reply 9, ECF No. 77 (emphasis added). At the hearing, however, Defendants’ counsel could not commit that the exception would apply to Plaintiffs. Hr’g Tr. 18:22-19:17, 20:11-19.
Plaintiffs contend that the exception seems to refer to “situations in which complications arise from surgery performed
that is covered by the statutory right under § 1074(a)(1). Am. Compl. ¶ 165, ECF No. 39. As a result, Plaintiffs allege that the Directive will cause them to imminently suffer a violation of a statutory right. Id. at ¶¶ 165, 167.
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before March 23.” Pls.’ Opp’n 12, ECF No. 66. Plaintiffs add that it is not clear that “any service member with a medical need for surgery will receive that surgery—even if he or she received no surgical treatment before March 23.” Id. Plaintiffs argue that if the exception were to be interpreted under the broad terms proposed by Defendants, the “exception” would essentially nullify the Directive and contravene President Trump’s premise about the cost of surgical care, adding that Defendants “may not evade judicial review by advancing (or, in this case, weakly suggesting) an interpretation of the challenged action that both is implausible and would fatally undercut the President’s announced policy.” Id. At the hearing, Plaintiffs added that “the Government, as far as we’re aware, is not scheduling anything for after March 22nd.” Hr’g Tr. 28:17-19; 29:8-9.
The Court finds that it is at the very least plausible that the exception would not apply to Stone and Cole’s scheduled post-March-23rd surgeries. That conclusion is sufficient at this juncture to raise Plaintiffs’ right to relief above the speculative and to the plausible level.
Accordingly, the Court finds that Plaintiffs have met their burden to demonstrate standing to challenge the Sex Reassignment Surgery Directive.
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3. Ripe for Review Defendants assert that the Court is being asked to prematurely judge the constitutionality of a future Government policy. The Defendants’ argument based on alleged uncertainty of military policy is not supported by the record before the Court. The President has expressly directed the military to “return to the longstanding policy that was in place prior to June 2016” that “prohibit[s] openly transgender individuals from accession into the United States military and authorize[s] the discharge of such individuals.” President’s Mem. § 1, ECF No. 40-21. The President directed that the military stop using military resources to fund sex-reassignment surgical procedures for military personnel. Id. at § 2(b). The President ordered an implementation plan and set definite implementation dates. Id. at § 3. The only uncertainties are how, not if, the policy will be implemented and whether, in some future context, the President might be persuaded to change his mind and terminate the policies he is now putting into effect. Id. at § 1. The validity of the Directives in the President’s Memorandum is fit for review. Further, withholding review would impose hardship on the Plaintiffs. The hardship inquiry has largely been addressed in the standing discussion. Plaintiffs have demonstrated to the
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Court’s satisfaction that they are likely to suffer imminent harm as a result of the Directives in the President’s Memorandum. They have further demonstrated that they are already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments. Waiting until after the Directives have been implemented to challenge their alleged violation of constitutional rights only subjects them to substantial risk of even greater harms.
Accordingly, the Court finds that this case is ripe for review.
B. Preliminary Injunction 1. Legal Standard
“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).
To obtain a preliminary injunction, a plaintiff must show
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that: 1. It will likely succeed on the merits; 2. It is likely to suffer irreparable harm absent preliminary relief; 3. The balance of equities tips in its favor; and 4. An injunction is in the public interest.
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008); Centro Tepeye v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013)(en banc). The plaintiff has the burden of establishing that it meets the Winter factors. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 293 (4th Cir. 2011).
Statements contained in an uncontroverted affidavit may be accepted as true. See, e.g., Elrod v. Burns, 427 U.S. 347, 350 n. 1 (1976) (“For purposes of our review . . . uncontroverted affidavits filed in support of the motion for a preliminary injunction are taken as true.”). The weight to be accorded to affidavit testimony is within the discretion of the court, and statements based on belief rather than personal knowledge may be discounted. Federal Practice & Procedure § 2949 (collecting authority).
2. Likely Success on the Merits Plaintiffs assert that the Directives in the President’s Memorandum violate the equal protection and substantive due
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process guarantees of the United States Constitution, as well as service members’ statutory right to medical care. The Court finds that Plaintiffs are likely to succeed on their Equal Protection claim, as discussed below. Therefore, the Court finds it unnecessary to analyze separately the merits of the Substantive Due Process claim and the Violation of Statute claim.
The men and women who serve in the Armed Forces are “protected by the Fifth Amendment’s Due Process Clause[,which] contains within it the prohibition against denying to any person the equal protection of the laws.” United States v. Windsor, -- U.S. ----, 133 S. Ct. 2675, 2695 (2013); Frontiero v. Richardson, 411 U.S. 677, 690–91 (1973). To succeed on an equal protection claim, Plaintiffs must demonstrate that they have been treated differently from others who are similarly situated and also show that the unequal treatment was the result of “intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If Plaintiffs can make this showing, the court must then determine “whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id.
There is no doubt that the Directives in the President’s Memorandum set apart transgender service members to be treated
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differently from all other military service members. Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The Court does not disagree. However, the Court takes note of the Amici of retired military officers and former national security officials, who state “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.” Amicus Br. 6, ECF No. 65-1. President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.” Doe 1, 2017 WL 4873042, at *30.
The Court finds persuasive the D.C. Court’s reasons for applying intermediate scrutiny: transgender individuals appear to satisfy the criteria of at least a quasi-suspect
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classification, and the Directives are a form of discrimination on the basis of gender. Id. at *27-28. The Court also adopts the D.C. Court’s reasoning in the application of intermediate scrutiny to the Directives and finds that the Plaintiffs herein are likely to succeed on their Equal Protection claim. See id. at *29-32.
Moreover, the Court finds that, based on the exhibits and declarations currently on the record, the Directives are unlikely to survive a rational review. The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest. See U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
3. Irreparable Harm Plaintiffs must also make a clear showing that they are likely to be irreparably harmed absent preliminary relief. Winter, 555 U.S. at 20. Plaintiffs’ injuries as described above are the result of alleged violations of their rights to equal protection of the laws under the Fifth Amendment. In the context of an alleged violation of constitutional rights, a plaintiff’s claimed
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irreparable harm is inseparably linked to the likelihood of
success on the merits. See Centro, 722 F.3d at 190.
Accordingly, the Court’s finding that Plaintiffs are likely
to succeed on the merits of their constitutional claim counsels
in favor of finding that, in the absence of an injunction, they
will suffer irreparable harm.
4. Balance of Equities and Public Interest
Courts “must balance the competing claims of injury and
must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24.
The Court agrees with the D.C. Court “that Plaintiffs have shown
that the public interest and the balance of hardships weigh in
favor of granting injunctive relief.” Doe 1, 2017 WL 4873042,
at *33. As stated:
A bare invocation of “national defense” simply cannot defeat every motion for preliminary injunction that touches on the military. On the record before the Court, there is absolutely no support for the claim that the ongoing service of transgender people would have any negative effective on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects. . . . Moreover, the injunction that will be issued will in no way prevent the government from conducting studies or gathering advice or recommendations on transgender service.
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Id. Further, this Court has also received an Amici brief from
15 States, urging the Court to enjoin the Directives because a reinstatement of the pre-June 2016 policies will harm the Amici States and their residents. Amici Br. 13, ECF No. 63-1.
5. Summary In summary, all the Winter factors weigh in favor of granting a preliminary injunction. The Court shall enjoin the enforcement of the Retention, Accession, and Sex Reassignment Surgical Directives pending the final resolution of this lawsuit.
C. Dismissal Under Rule 12(b)(6) 1. Legal Standard
A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. A complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
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When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s well-pleaded allegations are accepted as true, and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or a “formulaic recitation of the elements of a cause of action” will not suffice. Id. A complaint must allege sufficient facts to “cross ‘the line between possibility and plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(quoting Twombly, 550 U.S. at 557).
2. Plaintiffs Present Plausible Claims Defendants have moved to dismiss Plaintiffs’ claims under Rule 12(b)(6). For the same reasons as the Court has concluded that Plaintiffs are likely to succeed on the merits of the Equal Protection claim, as discussed above, the Court holds that the allegations are adequate and present plausible claims. The Court shall address separately the plausibility of the Substantive Due Process claim and the Violation of Statute claim.
a. Substantive due process The Supreme Court has stated that “the Due Process Clause was intended to prevent government officials from abusing
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[their] power, or employing it as an instrument of oppression.”

Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)(citations

omitted). Substantive due process claims deal with the

reasonableness, or arbitrariness, of the governmental decision.

Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 80 (4th

Cir. 2016). “Where executive action is concerned, a violation

of an individual’s substantive due process rights exists only

when the official action is so egregious, so outrageous, that it

may fairly be said to shock the contemporary conscience.” Id.

(citations omitted).

What rises to the level of conscience-shocking?

[N]egligently

inflicted

harm

is

categorically beneath the threshold of

constitutional due process. It is, on the

contrary, behavior at the other end of the

culpability spectrum that would most

probably support a substantive due process

claim; conduct intended to injure in some

way unjustifiable by any government interest

is the sort of official action most likely

to rise to the conscience-shocking level.

Historically, this guarantee of due process

has been applied to deliberate decisions of

government officials to deprive a person of

life, liberty, or property.

. . . .

Rules of due process are not, however,

subject to mechanical application in

unfamiliar

territory.

Deliberate

indifference that shocks in one environment

may not be so patently egregious in another,

and our concern with preserving the

constitutional proportions of substantive

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due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. Lewis, 523 U.S. at 849, 850 (citations omitted). Plaintiffs assert that President Trump’s arbitrary decision, plainly inconsistent with all available data, to exclude men and women who are transgender from military service serves no legitimate interest and cannot be reconciled with the liberty and equality protected by the Constitution. Pls.’ Mot. 28, ECF No. 40-2. Plaintiffs also argue that it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers. Id. at 29; see also Pls.’ Reply 30, ECF No. 66 (referring to the maneuver as a “bait and switch”). “[T]he Fifth Amendment itself withdraws from Government the power to degrade or demean . . . .” Windsor, 133 S. Ct. at 2695. An unexpected announcement by the President and Commander in Chief of the United States via Twitter that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military” certainly can be considered shocking under the circumstances. Am. Compl. ¶¶ 94-95. According to news reports provided by Plaintiffs, the Secretary of Defense and other military
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officials were surprised by the announcement. Id. ¶¶ 96-97, 104. The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress. Id. at ¶¶ 100-102. A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.
Defendants argue that the President did not actually announce a policy decision, and it was rational for the President to order the military to study the issue further. The Court agrees that it could find an order for further study to be rational, but as already discussed, the Court finds that the President’s Memorandum is not a request for a study but an order to implement the Directives contained therein.
Courts are reminded to be “reluctant to expand the concept of substantive due process” and “exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [judges].” Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999). Proceeding with full recognition of that caution, the Court finds that Plaintiffs have stated a plausible claim sufficient to withstand a motion to dismiss.
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b. Violation of Statute Pursuant to 10 U.S.C. § 1074(a)(1), members of the United States armed services, including active duty and reserve members, are entitled to medical care in military treatment facilities. Plaintiffs allege that the President cannot override a duly-enacted statute by denying necessary medical care to a group of service members he happens to disfavor. Am. Compl. ¶ 169, ECF. No. 39. Plaintiffs also allege that the DoD’s actions in implementing and enforcing the Sex Reassignment Surgery Directive are not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2). Id. Defendants do not dispute that the military has a statutory obligation to provide medically-necessary treatment, nor that surgical procedures are sometimes necessary to treat transgender individuals who have been diagnosed with gender dysphoria. Defendants argue, however, that the Interim Guidance, which is the operative policy at this point in time, is consistent with the statutory provision and that the exception to the surgical ban may mean that the statute will not be contravened after the Sex Reassignment Surgical Directive is implemented on March 23, 2018. Defendants assert that the statute does not create a private cause of action to sue the military in civilian court over the denial of medical treatment. Further Defendants assert
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that the DoD has broad discretion to shape the scope of services provided at military facilities, citing 10 U.S.C. § 1074(a)(1) and § 1073(a)(b).
Plaintiff’s allegations in support of their statutory claim are conclusory. They alleged that “DoD’s actions in implementing and enforcing the ban are not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2).” Am. Compl. ¶ 168. And that “Defendants, including the President, cannot act in contravention of a validly enacted statute. Their actions in establishing, implementing, and enforcing the ban on surgical care are ultra vires.” Am. Compl. ¶ 169.
Perhaps Plaintiffs could assert an adequate and plausible statutory claim. They have not done so here. The Court shall dismiss the statutory claim without prejudice to the ability of Plaintiffs to seek to file an amendment that adequately asserts such a claim if they can do so.
IV. CONCLUSION For the foregoing reasons: 1. Plaintiffs’ Motion for Preliminary Injunction [ECF No. 40] is GRANTED. 2. By separate Order, the Court shall issue a Preliminary Injunction. 3. Defendants’ Motion to Dismiss [ECF No. 52] is GRANTED IN PART and DENIED IN PART.
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Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 53 of 53 a) The Court hereby dismisses without prejudice Count III – Violation of 10 U.S.C. § 1074. b) Counts I and II remain pending.
5. Plaintiff shall arrange a case planning conference to be held by December 15, 2017, to discuss the scheduling of further proceedings.
SO ORDERED, on Tuesday, November 21, 2017. /s/__________
Marvin J. Garbis United States District Judge
53

 
 Case 1:17-cv-02459-MJG Document 101 Filed 12/28/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al.

*

Plaintiffs

*

vs.

* CIVIL ACTION NO. MJG-17-2459

DONALD J. TRUMP et al.

*

Defendants

*

*

*

*

*

*

*

*

*

*

MEMORANDUM & ORDER RE: CLARIFICATION

The Court has before it Defendants’ Motion for

Clarification and, if Necessary, a Partial Stay of Preliminary

Injunction Pending Appeal [ECF No. 91] and the materials related

thereto. The Court finds a hearing unnecessary.

I. CLARIFICATION Defendants seek clarification from the Court that the
Preliminary Injunction [ECF No. 84], issued on November 21, 2017, does not prohibit the Secretary of Defense from exercising his independent discretion to defer the January 1, 2018 effective date for the accessions provision of the Open Service Directive.1 The Court’s Order did not address nor contemplate

1

The Open Service Directive was issued by then-Secretary of

Defense Carter on June 30, 2016, and the accessions provision

was scheduled to go into effect on July 1, 2017. On June 30,

2017, Secretary of Defense Mattis delayed the effective date to

January 1, 2018.

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Case 1:17-cv-02459-MJG Document 101 Filed 12/28/17 Page 2 of 4
addressing any legitimate independent reasons for delaying the accessions provision. Defendants have not shown the impossibility of implementing the accessions provision within the planned timeframe. Nor have defendants shown a likelihood that the Secretary of Defense intends to take an action that would present the alleged issue.
By this motion, Defendants essentially ask this Court to issue an advisory opinion as to whether a hypothetical action that could be taken by Secretary Mattis could achieve the denial of accession to transgender applicants without violation of the outstanding Order. Determination of the legality of an action that would effectively delay the application of the Court Order would likely require resolution of a myriad of factual disputes. The motion seems to request judicial advice as to what can be done to delay transgender accession to the military that will not risk a contempt finding. The role of the federal courts is “neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000). Thus, the Court shall DENY Defendants’ motion.
2

Case 1:17-cv-02459-MJG Document 101 Filed 12/28/17 Page 3 of 4

II. PARTIAL STAY

In the alternative, Defendants seek a partial stay of the Preliminary Injunction pending appeal.2 Subsequent to filing the

instant motion, Defendants also filed in the Fourth Circuit

appellate case (No. 17-2398) an emergency motion for

administrative stay and partial stay pending appeal. On

December 21, 2017, the Fourth Circuit denied the motion. See

Order, ECF No. 99. To the extent that the instant motion is not

moot, the Court finds that Defendants have not met their burden

to establish irreparable harm if they must implement the

accessions provision by January 1, 2018. Nor have Defendants

shown that the Court abused its discretion in weighing the

equities to decide that a preliminary injunction was warranted

such that they are likely to succeed on the merits of their

appeal of the Preliminary Injunction. Granting a stay may harm

Plaintiffs and is not in the public interest.

Accordingly, upon considering the four factors, Nken v.

Holder, 556 U.S. 418, 434 (2009), the Court finds that they do

not weigh in favor of a stay of the accession provision of the

Court’s preliminary injunction while the Fourth Circuit decides

Defendants’ appeal.

2

The Court notes that in the corresponding D.C. Court case,

Doe 1 v. Trump, No. 17-cv-0159-CKK, Defendants sought a partial

stay pending appeal, and it was denied on December 11, 2017, the

day before the instant motion was filed.

3

Case 1:17-cv-02459-MJG Document 101 Filed 12/28/17 Page 4 of 4 Defendants’ Motion for Clarification and, if Necessary, a Partial Stay of Preliminary Injunction Pending Appeal [ECF No. 91] is DENIED. SO ORDERED, on Thursday, December 28, 2017.
/s/__________ Marvin J. Garbis United States District Judge
4

 
 FILED: December 21, 2017
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 17-2398 (1:17-cv-02459-MJG) ___________________
BROCK STONE, Petty Officer First Class; KATE COLE, Staff Sergeant; JOHN DOE, Senior Airman; SEVEN ERO GEORGE, Airman First Class; TEAGAN GILBERT, Petty Officer First Class; TOMMIE PARKER, Technical Sergeant; AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, INCORPORATED
Plaintiffs - Appellees
v.
DONALD J. TRUMP, in his official capacity as President of the United States; JAMES N. MATTIS, in his official capacity as Secretary of Defense, U.S. Department of Defense; RYAN D. MCCARTHY, in his official capacity as Acting Secretary of the U.S. Department of the Army; RICHARD SPENCER, in his official capacity as Secretary of the U.S. Department of the Navy; HEATHER WILSON, in her official capacity as Secretary of the U.S. Department of the Air Force
Defendants - Appellants
------------------------------
RETIRED MILITARY OFFICERS AND FORMER NATIONAL SECURITY OFFICIALS
Amicus Supporting Appellees
___________________
O R D E R ___________________

Upon consideration of appellants’ emergency motion for administrative stay and partial stay pending appeal, appellees’ response to the motion, appellants’ reply, the parties’ supplemental authorities, and the amicus brief in support of appellees, the court denies the motion for administrative stay and partial stay pending appeal.
Entered at the direction of the panel: Judge Motz, Judge Diaz, and Judge Harris.
For the Court /s/ Patricia S. Connor, Clerk

 
 Case 1:17-cv-02459-MJG Document 148 Filed 04/27/18 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

PETTY OFFICER FIRST CLASS BROCK STONE, (Anne Arundel County, Maryland)
STAFF SERGEANT KATE COLE, STAFF SERGEANT JOHN DOE 1, AIRMAN FIRST CLASS SEVEN ERO GEORGE, PETTY OFFICER FIRST CLASS TEAGAN GILBERT, TECHNICAL SERGEANT TOMMIE PARKER, TEDDY D’ATRI, RYAN WOOD, NIKO BRANCO, JOHN DOE 2, JANE ROE 1, JOHN DOE 3, by his next friends and mother and father JANE ROE 2 and JOHN DOE 4*
and AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, INC., 3600 Clipper Miller Road, Suite 350 Baltimore, MD 21211
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue NW Washington, D.C. 20500
JAMES MATTIS, in his official capacity as Secretary of Defense U.S. Department of Defense

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 17-cv-02459 ) ) ) ) ) ) ) ) ) )

* On September 29, 2017, the Court granted a joint motion to waive the original Plaintiffs’ obligation under Local Rule 102.2(a) to provide addresses, and to permit Plaintiff Doe to proceed anonymously. See Order, ECF 50. Concurrently with the filing of the Motion for Leave to File a Second Amended Complaint, Plaintiffs are moving similarly to waive their obligations and those of new plaintiffs D’Atri, Wood, Branco, Doe 2, Roe 1, Doe 3, Roe 2, and Doe 4 under Local Rule 102.2(a) to provide addresses in the caption of this complaint, on the basis of their objectively reasonable fear that publicizing their home addresses would subject them to harassment (potentially including violence) and threats. For similar reasons, Plaintiffs are concurrently moving to permit new plaintiffs Doe 2, Roe 1, Doe 3, Roe 2, and Doe 4 to proceed anonymously.

Case 1:17-cv-02459-MJG Document 148 Filed 04/27/18 Page 2 of 58

1400 Defense Pentagon

)

Washington, D.C. 20301

)

)

MARK ESPER,

)

in his official capacity as Secretary of the

)

U.S. Department of the Army

)

101 Army Pentagon

)

Washington, D.C. 20301

)

)

RICHARD SPENCER,

)

in his official capacity as Secretary of the

)

U.S. Department of the Navy

)

1200 Navy Pentagon

)

Washington D.C. 20350

)

)

HEATHER WILSON

)

in her official capacity as Secretary of the

)

U.S. Department of the Air Force

)

1690 Air Force Pentagon

)

Washington, D.C. 20330

)

)

KIRSTJEN NIELSEN

)

in her official capacity as Secretary of

)

Homeland Security

)

Nebraska Avenue Complex

)

3801 Nebraska Ave NW,

)

Washington, D.C. 20016-2075

)

)

PAUL ZUKUNFT

)

in his official capacity as Commandant of the

)

U.S. Coast Guard

)

2700 Martin Luther King Jr. Avenue SE

)

Washington, D.C. 20593-7000

)

)

Defendants.

)

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
NATURE OF THE ACTION 1. Thousands of transgender service members are serving honorably in this country’s Armed Forces. Some perform critical roles in intelligence analysis, disaster relief, medical care, and pre-deployment training at bases in the United States. Others have deployed to
2

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combat zones in Iraq and Afghanistan. Many transgender service members have received awards for their service, and some have served for decades. All have answered the selfless call of service to our nation by putting themselves in harm’s way to protect the rights and freedoms fundamental to this country.
2. Thousands more transgender Americans wish to answer the call to service. Some consider it their patriotic duty. Some come from families with a tradition of military service. Others see the benefits that a military career could bring to their lives. All are willing to make great sacrifices for the benefit of our country.
3. Six of the Plaintiffs in this case (“Serving Plaintiffs”) are transgender service members. Petty Officer Stone has served in the U.S. Navy for 11 years, including a nine-month deployment to Afghanistan, and is currently assigned to a unit at Fort Meade, in Maryland. Staff Sergeant Cole has served in the U.S. Army for almost ten years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman. Staff Sergeant Doe 1 has served for approximately six years on active duty in the U.S. Air Force, where he was awarded “Airman of the Year” for his flight. Airman First Class George has been enlisted in the Air National Guard since 2015. He is training as a nurse, and intends to seek a commission in the U.S. Army. Petty Officer Gilbert has served in the U.S. Navy for 13 years, including a one-year deployment to Afghanistan, and currently serves as an information and space systems technician. Technical Sergeant Parker served in the Marine Corps for four years and has served in the Air National Guard for 26 years, now working as a fuel technician.
4. Six additional Plaintiffs (“Enlisting Plaintiffs”) are transgender individuals who wish to join the military. Niko Branco is seeking to join the Army. Teddy D’Atri, John Doe 2, and Jane Roe 1 are seeking to join the Air Force. Ryan Wood is seeking to join the Marine
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Corps. John Doe 3 is a minor who wishes to join the Coast Guard when he is age eligible. Each of them has taken concrete steps to prepare to enlist and serve their country. As a minor, John Doe 3 is represented by Jane Roe 2 and John Doe 4 as his mother and father and next friends (together with the Serving Plaintiffs and Enlisting Plaintiffs, the “Individual Plaintiffs”).
5. At the culmination of a thorough process of research and analysis, the Department of Defense (“DoD”) concluded in 2016 that there was no basis for the military to exclude men and women who are transgender from openly serving their country, subject to the same fitness requirements as other service members. This review process carefully considered and rejected the notion that medical costs, military readiness, or other factors presented any plausible reason to discriminate against service members who are transgender, many of whom had already been serving with honor in silence for decades. Accordingly, the Secretary of Defense issued a directive (the “Open Service Directive”) that service members who are transgender be permitted to serve openly without fear of discharge; that these service members receive medically necessary health care, as do others who serve their country; and that, beginning on July 1, 2017, men and women who are transgender be permitted to enlist in the military subject to stringent enlistment standards. The starting date for new enlistments was subsequently postponed for six months to January 1, 2018.
6. On the morning of July 26, 2017, President Trump declared on Twitter that the Serving and Enlisting Plaintiffs and all other men and women who are transgender would no longer be allowed either to join or to continue serving in the military “in any capacity.” This pronouncement was posted under the handle @realDonaldTrump:
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7. The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly. News reports indicate that the Secretary of Defense and other military officials were surprised by President Trump’s announcement, and that his actual motivations were purely political, reflecting a desire to accommodate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender.
8. On August 25, 2017, President Trump formalized his ban in a Memorandum for the Secretary of Defense and the Secretary of Homeland Security, with the subject “Military Service by Transgender Individuals” (the “Transgender Service Member Ban”). President Trump directed the Secretary of Defense to “return to” the pre-2016 policy of banning enlistment and service by men and women who are transgender, which he described as “generally prohibit[ing] openly transgender individuals from accession into the United States military and authoriz[ing] the discharge of such individuals.” President Trump further banned the use of government resources to fund “sex-reassignment surgical procedures” for service members regardless of cost
5

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or medical necessity. President Trump ordered Secretary of Defense James Mattis to develop a “plan for implementing” the directives by February 21, 2018, so they could be fully implemented by March 23, 2018.
9. President Trump delayed the operation of some of his directives, but their impact was felt immediately. Planned medical treatment was canceled, treatment plans were modified, and recommendations and requests for new treatment were denied to service members who are transgender. Military recruiters were reportedly confused as to how or whether to enlist transgender individuals. The six-month preparation period only served as a brief delay to the full implementation of President Trump’s unequivocal policy pronouncement.
10. Four federal courts—including this Court—issued preliminary injunctions prohibiting the White House and the military from taking any action to enforce President Trump’s ban. As a result of those injunctions, the Open Service policy remained in effect, and the military began accepting transgender recruits on January 1, 2018. Three of the Enlisting Plaintiffs submitted applications to join the military shortly thereafter.
11. On February 22, 2018, Secretary Mattis submitted to the President an implementation plan, which set forth a two-pronged approach for banning transgender individuals from the military. First, transgender individuals who “require or have undergone gender transition” are automatically disqualified from military service. Second, all other transgender individuals may serve only “in their biological sex (emphasis added).”
12. Secretary Mattis’s implementation plan remained secret until March 23, 2018, when President Trump issued a second Memorandum acknowledging receipt of the implementation plan and authorizing Secretary Mattis to proceed with his plans for implementation.
6

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13. As a consequence of the Transgender Service Member Ban and the Department of

Defense’s plan to implement it, thousands of Americans already serving their country—many of

whom publicly revealed that they are transgender after DoD formally welcomed their service in

June 2016—have been told that they are unfit to serve and a burden whose presence imposes

“disproportionate costs.” All transgender Americans who wish to enlist in the military have had

the doors to military service shut in their faces. The few service members who are allowed to

remain will face an uncertain future in which the Department of Defense has implemented the

President’s ban by calling into question their physical fitness and mental stability simply because

they are transgender—to the alarm of the mainstream medical community.

14. When President Trump first announced his Ban via Twitter, he cast aside the

rigorous, evidence-based policy of the Open Service Directive, and replaced it with discredited

myths and stereotypes, uninformed speculation, and animus against people who are transgender.

Defendants then sought to reverse-engineer a post-hoc justification to shore up the conclusions

President Trump had already reached.

15. Transgender people have been serving openly for the past year and a half. They

have been deploying across the globe, serving with distinction as critical members of their units.

That dispositive reality cannot be nullified by President Trump’s tweets or the efforts of the

Department of Defense to satisfy the whims of a President who had already made up his mind.

16. Plaintiffs bring this action to right this unconstitutional wrong.

Plaintiff Stone

THE PARTIES

17. Petty Officer First Class Brock Stone is a 34-year-old man.

18. Petty Officer Stone is assigned to a unit at Fort Meade, Maryland through at least

August 2020, and resides off-base with his wife in Anne Arundel County.

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19. Petty Officer Stone has served in the U.S. Navy for 11 years, including a ninemonth deployment to Afghanistan. Petty Officer Stone was awarded an achievement medal in connection with his deployment, and has received multiple other commendations, including a flag letter of commendation and multiple recommendations for early promotion. He has received extensive and costly training and is skilled in his field. He plans to serve until he completes 20 years of active duty service time. His current contract expires in 2023, and if he is not able to reenlist he will not be able reach that goal.
20. Petty Officer Stone is transgender. 21. Petty Officer Stone publicly revealed his transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 22. Pursuant to his evaluation by DoD medical personnel, Petty Officer Stone receives hormones as a medically necessary part of his gender transition. 23. Since arriving at Fort Meade in July 2017, Petty Officer Stone has received medically necessary treatment related to his gender transition at Walter Reed National Military Medical Center in Bethesda, Maryland. He was close to finalizing a medical treatment plan that included surgery at the time he was transferred to Fort Meade. 24. Before President Trump issued his Transgender Service Member Ban, Petty Officer Stone planned and expected that his treatment plan at Fort Meade would include medically necessary surgery in 2018. Despite months of effort by Petty Officer Stone, his treatment plan has yet to be fully approved. 25. Petty Officer Stone is a member of the ACLU of Maryland. Plaintiff Cole 26. Staff Sergeant Kate Cole is a 27-year-old woman.
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27. Staff Sergeant Cole is currently stationed at Fort Polk, Louisiana. She recently completed Drill Sergeant School, and is scheduled to complete a transfer to Fort Benning, Georgia in the coming month, where she will begin serving as a Drill Sergeant
28. Staff Sergeant Cole has served in the U.S. Army for approximately ten years, including a one-year deployment to Afghanistan where she served as a team leader and designated marksman. Staff Sergeant Cole intends to serve until she completes 20 years of active duty service time. Her current contract expires in 2021, and if she is not able to reenlist she will not be able to reach that goal.
29. Staff Sergeant Cole is transgender. 30. Staff Sergeant Cole publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 31. Pursuant to her evaluation by DoD medical personnel, Staff Sergeant Cole is receiving hormones as a medically necessary part of her gender transition and has undergone medically necessary surgery. 32. Staff Sergeant Cole’s treatment plan includes additional, medically-necessary surgical care related to her transition in the future. She is currently awaiting the completion of her transfer to Fort Benning in order to plan that care, so as to be consistent with her responsibilities in her new command. Plaintiff Doe 1 33. Staff Sergeant John Doe 1 (referred to as Senior Airman John Doe in the First Amended Complaint) is a 25-year-old man. 34. He was recently promoted to his current rank from Senior Airman.
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35. Staff Sergeant Doe 1 is in the process of transferring to Luke Air Force Base in Arizona, where he will officially start in June 2018.
36. Staff Sergeant Doe 1 has served for approximately six years on active duty in the U.S. Air Force, where he is pursuing cryogenics certification. He was awarded “Airman of the Year” for his flight. He plans to serve until he reaches 20 years of active duty service time. His current service contract ends in 2021, and if he is not able to reenlist he will not be able to reach that goal.
37. Staff Sergeant Doe 1 has deployed to Qatar for a six-month deployment. 38. Staff Sergeant Doe 1 is transgender. 39. Staff Sergeant Doe 1 publicly revealed his transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 40. Pursuant to his evaluation by DoD medical personnel, Staff Sergeant Doe 1 receives hormones as a medically necessary part of his gender transition, and has undergone medically necessary surgery. He does not currently anticipate requiring any further surgery related to his transition. Plaintiff George 41. Airman First Class Seven Ero George is a 41-year-old man. 42. Airman First Class George is stationed at Selfridge Air National Guard Base, Michigan. 43. Airman First Class George is in the Air National Guard, where he serves in the base security force. He is also a member of the base Honor Guard, performing military funeral honors for deceased veterans, retirees, and active duty members; providing dignified transfers; and performing color guard details.
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44. Airman First Class George is transgender. 45. Airman First Class George publicly revealed his transgender status to military personnel following, and in reliance upon DoD’s June 2016 Open Service Directive. 46. Airman First Class George receives hormones as a medically necessary part of his gender transition and has undergone medically necessary surgery. 47. Airman First Class George intends to pursue a commission in the U.S. Army Nurse Corps. He has completed one civilian degree in nursing, works as a nurse, and is pursuing a second degree in the same field. 48. Airman First Class George is currently eligible for a commission under the Open Service Directive: (1) he has been stable without clinically significant distress or impairment as the result of gender dysphoria in social, occupational, or other important areas of functioning for more than 18 months; (2) he has completed all medical treatment associated with his gender transition, been stable in his preferred gender for more than 18 months, and has been stable on cross-sex hormones post-gender transition for more than 18 months; and (3) more than 18 months has elapsed since the date of his most recent surgery and no functional limitations or complications persist, nor is any additional surgery required. Airman First Class George has been attempting to update his gender marker in the U.S. military’s personnel database, but the process has been repeatedly delayed for unexplained reasons. Airman First Class George plans to apply for a commission without an updated gender marker during the next application cycle, which begins in May, 2018. Plaintiff Gilbert 49. Petty Officer First Class Teagan Gilbert is a 31-year-old woman. 50. Petty Officer Gilbert is a reservist stationed in Phoenix, Arizona.
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51. Petty Officer Gilbert has served in the U.S. Navy for more than 13 years, including a one-year deployment to Afghanistan. She is currently in the Naval Reserve working as an information and space systems technician.
52. Petty Officer Gilbert is transgender. 53. Petty Officer Gilbert publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive. 54. Pursuant to her evaluation by DoD medical personnel, Petty Officer Gilbert receives hormones as a medically necessary part of her gender transition and plans to seek approval for medically indicated surgical treatment in the future. 55. Petty Officer Gilbert has approximately one year of course work left in her undergraduate degree at Arizona State University, after which she intends to apply to commission as an officer. 56. Petty Officer Gilbert’s goal is to serve in the military for at least 20 years. Plaintiff Parker 57. Technical Sergeant Tommie Parker is a 54-year-old woman. 58. Technical Sergeant Parker is stationed at Stewart Air National Guard Base, New York and has served in the Marine Corps for four years and the Air National Guard for 26 years, including deployments to Okinawa (with the Marine Corps) and Germany (with the Air National Guard). Her Air National Guard service time includes twelve years and counting on active duty. It is Technical Sergeant Parker’s goal to serve in the military for at least 20 years of active duty service time. She now works as a fuel technician. 59. Technical Sergeant Parker is transgender.
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60. Technical Sergeant Parker publicly revealed her transgender status to military personnel following, and in reliance upon, DoD’s June 2016 Open Service Directive.
61. Pursuant to her evaluation by DoD medical personnel, Technical Sergeant Parker receives hormones as a medically necessary part of her gender transition.
Plaintiff Teddy D’Atri 62. Plaintiff Teddy D’Atri is a 21-year-old man. 63. Plaintiff D’Atri currently works at an electronics store. 64. Plaintiff D’Atri is seeking to enlist in the Air Force, where he hopes to work as either an aerial gunner or in the security force. He has been actively working with a recruiter since July 2017. Due in part to the confusion and uncertainty with certain recruiters regarding the operative policy on transgender enlistees, Plaintiff D’Atri switched recruiters in October 2017. 65. Plaintiff D’Atri is transgender. 66. Plaintiff D’Atri has received hormones as a medically necessary part of his gender transition since August 2017. In connection with his gender transition, he is currently pursuing medically indicated surgery, which he anticipates undergoing in August 2018. He intends to enlist as quickly as possible following that surgery. 67. Plaintiff D’Atri is currently in the process of updating his civilian paperwork to reflect his male gender. He intends to submit paperwork to update his gender marker with both the DMV and the Social Security Administration. 68. Plaintiff D’Atri intends to seek a waiver through the process afforded by the Open Service Directive to either waive or reduce the 18-month periods to enlist, in whole or in part, and has been advised by his recruiter that he is eligible for such a waiver.
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Plaintiff Wood 69. Plaintiff Ryan Wood is a 24-year-old man. 70. Plaintiff Wood currently works as a firefighter and is certified as both a firefighter and an emergency medical technician. 71. Plaintiff Wood is seeking to enlist in the Marine Corps. He initiated the enlistment process in January of this year, immediately after the ban on accessions was lifted. Since then, he has been actively working with his recruiter and medical professionals to provide all of the necessary documentation to be medically cleared for service. 72. Plaintiff Wood is transgender. 73. Plaintiff Wood has received hormones as a medically necessary part of his gender transition for approximately seven years and had medically indicated surgery in connection with his transition in 2012. He does not anticipate requiring any further surgical treatment in connection with his gender transition. 74. Plaintiff Wood meets the requirements for enlistment under the Open Service Directive. Plaintiff Wood has (1) been stable without clinically significant distress or impairment as the result of gender dysphoria in social, occupational, or other important areas of functioning for more than 18 months; (2) has completed all medical treatment associated with his gender transition, been stable in his preferred gender for more than 18 months, and has been stable on cross-sex hormones post-gender transition for more than 18 months; and (3) more than 18 months has elapsed since the date of his most recent surgery and no functional limitations or complications persist, nor is any additional surgery required. Plaintiff Branco 75. Plaintiff Niko Branco is a 24-year-old man.
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76. Plaintiff Branco currently works as an animal control officer for a police department.
77. Plaintiff Branco intends to enlist in the Army, and has been working toward that goal since before President Trump announced the Ban on July 26, 2017. Due to uncertainty over the scope of the Ban, Plaintiff Branco put these attempts on hold following its announcement, but has been actively working with a recruiter since the lifting of the accessions ban at the beginning of 2018. He recently resubmitted his medical paperwork in order to pursue enlistment and is awaiting a final date for undergoing a physical examination and signing an enlistment contract.
78. Plaintiff Branco is transgender. 79. Plaintiff Branco publicly revealed his transgender status to family and friends approximately six years ago. He has received hormones as a medically necessary part of his gender transition for approximately three and a half years, and underwent medically indicated surgery in connection with his transition two years ago. He does not anticipate requiring any further surgical treatment in connection with his gender transition. 80. A licensed medical provider would certify that: (1) Plaintiff Branco has been stable without clinically significant distress or impairment as the result of gender dysphoria in social, occupational, or other important areas of functioning for 18 months; (2) Plaintiff Branco has completed all medical treatment associated with his gender transition, has been stable in his preferred gender for 18 months, and has been stable on cross-sex hormones post-gender transition for 18 months; and (3) more than 18 months has elapsed since the date of his most recent surgery and no functional limitations or complications persist, nor is any additional
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surgery required. Accordingly, Plaintiff Branco meets the requirements for enlistment under the Open Service Directive.
81. Plaintiff Branco has changed his gender marker on his birth certificate. 82. Plaintiff Branco’s goal is to serve in the Army in for 20 years. Plaintiff Doe 2 83. Plaintiff John Doe 2 is a 24-year old man. 84. Plaintiff Doe 2 currently works as a package handler for a shipping company. 85. Plaintiff Doe 2 is seeking to enlist in the Air Force. He has been working with a recruiter since January 2018. 86. Plaintiff Doe 2 is transgender. 87. Plaintiff Doe 2 has received hormones as a medically necessary part of his gender transition for approximately six years. He had medically indicated surgery in connection with his transition approximately one year ago. He does not currently anticipate requiring any further surgical treatment in connection with his gender transition. 88. Plaintiff Doe 2 is actively seeking a waiver through the process afforded by the Open Service Directive to either waive or reduce the 18-month stability period to enlist, in whole or in part, in his individual case for applicable reasons. 89. Plaintiff Doe 2 has updated his civilian paperwork to reflect his male gender, including his passport, driver’s license, and paperwork with Social Security Administration. He has not updated his birth certificate due to a legal prohibition on doing so in his birth state. Plaintiff Roe 1 90. Plaintiff Jane Roe 1 is a 27-year-old woman. 91. Plaintiff Roe 1 currently works at a coffee shop.
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92. Plaintiff Roe 1 is transgender. 93. Plaintiff Roe 1 is seeking to enlist in the Air Force. She hopes to work in pararescue and fire protection. Plaintiff Roe 1 has actively been seeking enlistment since early January 2018. After initially being informed by a recruiter that she should wait to enlist until the Department of Defense’s policy on transgender enlistment was clarified, Plaintiff Roe 1 once again engaged a recruiter upon learning that a transgender individual had successfully enlisted. 94. Due in part to the confusion displayed by military recruiters regarding the current policy on transgender enlistees, Plaintiff Roe 1 has temporarily halted her attempts to enlist in order to prepare for her upcoming surgery. Plaintiff Roe 1 fully intends to resume her efforts to enlist in the U.S. military once her surgery is complete. 95. Plaintiff Roe 1 revealed her transgender identity to family and friends approximately nine years ago. She has received hormones as a medically necessary part of her gender transition for approximately eight and a half years. She underwent medically indicated surgery in connection with her transition on April 11, 2018, and is scheduled to have an additional surgery in two and a half months. After that upcoming surgery, she does not anticipate requiring any further surgical treatment in connection with her transition. 96. Plaintiff Jane Roe 1 intends to request a waiver through the process afforded by the Open Service Directive to either waive or reduce the 18-month periods to enlist, in whole or in part, in her individual case for applicable reasons. Plaintiff John Doe 3, by his Next Friends and Mother and Father Jane Roe 2 and John Doe 4 97. Plaintiff John Doe 3 is a 15-year-old boy. He is represented in this action by Jane Roe 2 and John Doe 4 as his mother and father and next friends.
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98. Plaintiff Doe 3 is transgender. 99. Plaintiff Doe 3 revealed to his family that he was transgender in January 2018. He has been undergoing therapy and is in the process of initiating the use of hormone blockers as a medically necessary part of his gender transition. 100. Plaintiff Doe 3 intends to join the Coast Guard when he becomes of age, either by applying to the Coast Guard Academy or simply by enlisting. 101. Plaintiff Doe 3 intends to update his civilian documentation to reflect his male gender in the coming year. 102. Plaintiff Doe 3’s parents, Jane Roe 2 and John Doe 4, support his plan to enlist in the Coast Guard, and have authorized his participation in this lawsuit. Plaintiff ACLU of Maryland 103. Plaintiff American Civil Liberties Union of Maryland, Inc. (“ACLU of Maryland”) is an affiliate of the American Civil Liberties Union, a non-profit, nationwide, nonpartisan membership organization with over 1,500,000 members. 104. Plaintiff ACLU of Maryland’s growing membership comprises over 42,000 Maryland members, including one or more men and women who are transgender and either currently serve in the U.S. military or intend to volunteer for service in the U.S. military. 105. The ACLU of Maryland litigates cases in which government officials have attempted to discriminate against men and women who are transgender, and therefore the ACLU of Maryland has a direct interest in challenging the ban at issue in this case. 106. The ACLU of Maryland’s interest in protecting both its members and other men and women who are transgender from discrimination on the basis of sex and transgender status is
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both germane and fundamental to the organization’s purpose of furthering the principles of liberty and equality embodied in the Constitution and the nation’s civil rights laws.
Defendants 107. Defendant Donald J. Trump is the President of the United States. He is sued in his official capacity. In that capacity, he issued the Transgender Service Member Ban on August 25, 2017, and the memorandum of March 23, 2018. 108. Defendant James Mattis is the Secretary of Defense and is sued in his official capacity. DoD is responsible for providing the military forces needed to deter war and protect the security of the United States. At all times relevant to this Complaint, Defendant Mattis was acting as an employee and agent of the United States. In that capacity, Defendant Mattis is responsible for supervising the branches of the U.S. Armed Forces; for promulgating, implementing, and enforcing the policies and regulations that govern military service in all branches of the U.S. Armed Forces; and for ensuring the legality of these policies and regulations. In this role, he is responsible for the maintenance and enforcement of Department of Defense Instruction (“DoDI”) 1300.28, which establishes DoD policies regarding transgender service members. In his official capacity, Defendant Mattis provided Defendant Trump with the report and recommendations that underlie the March 23 memorandum and the Implementation Plan. 109. Defendant Mark Esper is the Secretary of the Army and is sued in his official capacity. The Department of the Army is the DoD branch that defends the land mass of the United States, its territories, commonwealths, and possessions. At all times relevant to this Complaint, Defendant Esper was acting as an employee and agent of the United States. In that capacity, Defendant Esper has overall responsibility for the Army and for the Army’s
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development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Army publications and directives implementing DoD policy governing transgender service members.
110. Defendant Richard Spencer is the Secretary of the Navy and is sued in his official capacity. The Department of the Navy is the DoD branch that maintains, trains, and equips combat-ready maritime forces. At all times relevant to this Complaint, Defendant Spencer was acting as an employee and agent of the United States. In that capacity, Defendant Spencer has overall responsibility for the Navy and Marine Corps and those services’ development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Navy and Marine Corps publications and directives implementing DoD policy governing transgender service members.
111. Defendant Heather Wilson is the Secretary of the Air Force and is sued in her official capacity. The Department of the Air Force is the DoD branch that provides the U.S. military with air and space capability. At all times relevant to this Complaint, Defendant Wilson was acting as an employee and agent of the United States. In that capacity, Defendant Wilson has overall responsibility for the Air Force and for the Air Force’s development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Air Force publications and directives implementing DoD policy governing transgender service members.
112. Defendant Kirstjen Nielsen is the Secretary of Homeland Security and is sued in her official capacity. The Department of Homeland Security is responsible for the United States Coast Guard. At all times relevant to this Complaint, Defendant Nielsen was acting as an employee and agent of the United States. In that capacity, Defendant Nielsen is responsible for
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supervising the Coast Guard; for promulgating, implementing, and enforcing the policies and regulations that govern military service in the Coast Guard; and for ensuring the legality of these policies and regulations. In this role, she is responsible for the maintenance and enforcement of all policies regarding transgender members of the Coast Guard. In her official capacity, Defendant Nielsen consulted with Defendant Mattis on the recommendations that underlie the March 23 memorandum and the Implementation Plan, and agreed with them.
113. Defendant Admiral Paul Zukunft is the Commandant of the Coast Guard and is sued in his official capacity. The Coast Guard is the branch of the U.S. Armed Forces responsible for maritime homeland security, but also has a peacetime role of maritime law enforcement. At all times relevant to this Complaint, Defendant Zukunft was acting as an employee and agent of the United States. In that capacity, Defendant Zukunft has overall responsibility for the Coast Guard and for the Coast Guard’s development, administration, and enforcement of policies and regulations that affect service by transgender service members. These policies and regulations include Coast Guard publications and directives implementing any policy governing transgender service members.
JURISDICTION AND VENUE 114. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the action arises under the United States Constitution, the laws of the United States, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02. 115. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1) because Plaintiff Stone and Plaintiff ACLU of Maryland reside in this District, and because a substantial part of the events or omissions giving rise to this action occurred and are occurring in this District.
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FACTUAL ALLEGATIONS A. Current Military Service by Men and Women Who Are Transgender 116. Transgender Americans have served, and continue to serve, in the military with distinction, including in combat. As of May 2014, the Williams Institute at UCLA School of Law estimated that men and women who are transgender account for approximately 8,800 active members of the U.S. Armed Forces. This figure may be even higher today in light of DoD’s June 2016 Open Service Directive regarding transgender service. 117. According to General Mark Milley, Chief of Staff for the Army, he has seen “precisely zero reports of issues of cohesion, discipline, morale, and all sorts of things” with respect to current military service of transgender men and women. Senate Armed Services Committee Holds Hearing on the Fiscal 2019 Budget Request for the Army Department, CQ Congressional Transcripts, p. 92 (Apr. 12, 2018). 118. Admiral John M. Richardson, Chief of Naval Operations, and General Robert Neller, Commandant of the Marines, reported that they were not aware of any issues of unit cohesion, disciplinary problems, or morale related to the open service of transgender men and women. Senate Armed Services Committee Holds Hearing on Navy Posture, CQ Congressional Transcripts, pp. 77-78 (Apr. 19, 2018). General Neller confirmed that all the transgender Marines he has met “were ready and prepared to deploy.” Id. at p. 79. 119. Defendant Paul Zukunft, the Commandant of the U.S. Coast Guard, testified to Congress that all 17 transgender members of the Coast Guard are “carrying out the full scope of missions that we execute around the world today,” that the Coast Guard is “committed to their continued service,” and that the transgender members of the Coast Guard are “serving today with a passion to serve in an all voluntary service, and they're hitting the ball out of the park.” House
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Appropriations Subcommittee on Homeland Security Holds Hearing on the Coast Guard Fiscal 2019 Budget Request, CQ Congressional Transcripts, p. 56 (Apr. 17, 2018).
120. Men and women who are transgender also serve openly in civilian roles supporting the U.S. military, including as contractors in combat zones.
B. Medical Treatment for Transgender Service Members 121. Pursuant to DoDI 1300.28 (§ 1.2(a)), “[t]ransgender persons . . . are subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming standards, deployability, and retention.” 122. The American Psychiatric Association and every other major mental health organization recognize that being transgender is not a mental disorder and implies no impairment in judgment, stability, reliability, or general social or vocational capabilities. 123. Some men and women who are transgender, however, experience “gender dysphoria,” a diagnostic term used to describe the incongruence between a person’s gender identity and the gender that they were assigned at birth where such incongruence is accompanied by clinically significant distress. 124. As with all medical conditions, varying courses of treatment for gender dysphoria may be medically necessary depending on the needs of the individual, as determined in consultation with medical professionals. These treatments, often referred to as transition-related care, may include social role transition, hormones, and surgery (sometimes called “sex reassignment surgery” or “gender confirmation surgery”). The goal of the treatment is to align an individual’s outward expression of gender, body, and biochemistry with the person’s gender identity in order to eliminate the clinically significant distress. 125. According to every major medical organization and the overwhelming consensus among medical experts, treatments for gender dysphoria, including surgical procedures, are
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effective, safe, and medically necessary when clinically indicated to alleviate the distress caused by the condition.
126. In accordance with that medical consensus and contemporary standards of care, Medicare, Medicaid, and private insurance policies across the country routinely cover transitionrelated care as medically necessary treatment.
127. The medical needs of transgender service members with gender dysphoria are not materially different from those of other service members. For example, the military provides routine psychological care to all service members around the globe, including men and women who are transgender. It also provides long-term hormone treatments for persons with diabetes and other endocrine disorders, and stocks cross-sex hormones in its dispensaries in the United States and abroad. The military further provides medically-indicated surgery to all service members, including chest and breast reconstruction, hysterectomy, and genital reconstruction, among other procedures that might be prescribed to treat gender dysphoria.
C. History of DoD Policy on Transgender Military Service 1) Historical Regulatory Ban
128. Starting some time before 1981, DoD maintained and enforced a policy barring men and women who are transgender from enlisting or being retained in the U.S. Armed Forces.
129. That policy prohibited men and women who are transgender from serving openly, whether or not they required any ongoing medical treatment and even if they were fit to serve. In contrast, non-transgender individuals, including those requiring medical interventions, were allowed to remain in military service if they could demonstrate their fitness to serve.
130. Neither the policy nor the various service branch regulations that implemented it articulated a rationale for presuming that being transgender renders a service member administratively unfit.
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2) DoD Revisits and Studies the Regulations Regarding Transgender Military Service
131. On July 13, 2015, then-Secretary of Defense Ashton Carter issued two directives aimed at updating DoD’s existing transgender service member regulations, which the Secretary described as “an outdated, confusing, inconsistent approach that’s contrary to our value of service and individual merit” that is “causing uncertainty that distracts commanders from our core missions.” Statement by Secretary of Defense Ash Carter on DOD Transgender Policy, DoD (July 13, 2015), https://www.defense.gov/News/News-Releases/News-ReleaseView/Article/612778/.
132. The Secretary’s first directive established a working group to study “the policy and readiness implications of welcoming transgender persons to serve openly.” The Acting Under Secretary of Defense for Personnel and Readiness led the group, which was comprised of leaders from the armed services; the Joint Staff; the service secretaries; and personnel, training, readiness and medical specialists from across DoD (with input from transgender service members, outside expert groups, and medical professionals outside the department).
133. The Secretary’s second directive ordered that “decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to” the Under Secretary, “who will make determinations on all potential separations.”
134. From July 2015 to June 2016, members of the working group and other senior leaders in DoD met with transgender service members deployed throughout the world, including individuals serving on aircrafts, submarines, and operating bases, as well as at the Pentagon. These individuals were determined to be high-quality additions to the U.S. Armed Forces, and DoD leaders observed that the ambiguity of existing regulations regarding the service of
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transgender individuals put both the service members and their commanders in a difficult and fundamentally unfair position.
135. The DoD working group also carefully examined medical, legal, and policy considerations associated with permitting transgender service members to serve openly in the Armed Forces. The working group reviewed data, studied the many allied militaries that already permit transgender service members to serve openly, and considered analogous examples from the public and private sectors in the United States. DoD observed, among other things, that the provision of medical care for men and women who are transgender is becoming common and normalized in public and private sectors alike.
136. In conjunction with its working group efforts, DoD commissioned the RAND Corporation to analyze relevant data and studies to assist with DoD’s own review. RAND’s work was “sponsored by the Office of the Under Secretary of Defense for Personnel and Readiness and conducted within the Forces and Resources Policy Center of the RAND National Defense Research Institute, a federally funded research and development center sponsored by the Office of the Secretary of Defense, the Joint Staff, the Unified Combatant Commands, the Navy, the Marine Corps, the defense agencies, and the defense Intelligence Community.” Agnes Gereben Schaefer et al., Assessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corporation, at iii–iv (2016) (hereinafter, “RAND Report,” attached as Exhibit A to Plaintiffs’ original Complaint), ECF 1-2.
137. Based on various factors, including its analysis of allied militaries and the expected rate at which American transgender service members would require medical treatment that would impact their fitness for duty or deployability, RAND concluded that there would be “minimal” readiness impacts from allowing transgender service members to serve openly. See id.
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at xii, 2–3. Specifically, RAND estimated that 10 to 130 active component members each year could have reduced deployability as a result of gender transition-related treatments. This amount is negligible relative to the 102,500 non-deployable soldiers in the Army alone in 2015, 50,000 of them in the active component. Impact of Transgender Personnel on Readiness and Health Care Costs in the U.S. Military Likely to Be Small, RAND Press Room (June 30, 2016), https://www.rand.org/news/press/2016/06/30.html.
138. RAND concluded that health care costs would represent “an exceedingly small proportion” of both Active Component and overall DoD health care expenditures. RAND Report, at xi–xii, 31. In so concluding, RAND observed that “[b]oth psychotherapy and hormone therapies are [already] available and regularly provided through the military’s direct care system,” and “[s]urgical procedures quite similar to those used for gender transition are already performed within the MHS for other clinical indications.” Id. at 8. For instance, “[r]econstructive breast/chest and genital surgeries are currently performed on patients who have had cancer, been in vehicular and other accidents, or been wounded in combat.” Id.
3) Decision to Permit Transgender Service Members to be Subject to the Same Fitness Standards as Other Service Members
139. Based on input from the DoD’s working group and the RAND Corporation, including information and recommendations from the service secretaries and other Pentagon officials, Secretary Carter issued a directive and memorandum to all military departments regarding military service for transgender service members on June 30, 2016. The Open Service Directive announced that, “[e]ffective immediately, no otherwise qualified Service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity.” Further, “[t]ransgender Service members will be subject to the same standards as any other Service member of the same gender.” Thus, “[a] Service
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member whose ability to serve is adversely affected by a medical condition or medical treatment related to their gender identity should be treated, for purposes of separation and retention, in a manner consistent with a Service member whose ability to serve is similarly affected for reasons unrelated to gender identity or gender transition.” The Open Service Directive is attached as Exhibit B to Plaintiffs’ original Complaint, ECF 1-3.
140. Citing the RAND Report, the Secretary of Defense explained the three principal reasons underlying the Open Service Directive: (1) the military’s need to “avail ourselves of all talent possible” in order to remain “the finest fighting force the world has ever known”; (2) the Secretary’s duty to transgender service members and their commanders to “provide them both with clearer and more consistent guidance than is provided by current policies”; and (3) as a matter of principle, “Americans who want to serve and can meet our standards should be afforded the opportunity to compete to do so.” Department of Defense Press Briefing by Secretary Carter on Transgender Service Policies in the Pentagon Briefing Room (June 30, 2016), https://www.defense.gov/News/Transcripts/TranscriptView/Article/822347/departmentof-defense-press-briefing-by-secretary-carter-on-transgenderservice/.
141. The Open Service Directive was to be implemented over the course of a 12-month period, from June 2016 to June 2017. Although transgender service members already in the military on June 30, 2016 were allowed to serve openly as soon as the Open Service Directive took effect, accession of transgender personnel—that is, the process of bringing new enlisted recruits and officer candidates into the military—did not begin immediately. The Policy gave the Department of Defense and the military services approximately one year to conduct training, and to start accepting transgender members into the military beginning on July 1, 2017.
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142. The enlistment requirements were stringent, providing, inter alia, that a history of gender dysphoria was disqualifying unless a licensed medical provider certified that the applicant had been stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months.
143. On September 30, 2016, DoD issued an “Implementation Handbook” to “assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand [Department] policy [allowing] the open service of transgender Service members.” Transgender Service in the U.S. Military: An Implementation Handbook, DoD, at 8 (Sept. 30, 2016), available at https://www.defense.gov/Portals/1/features/2016/0616 policy/DoDTGHandbook 093016.pdf?v er=2016-09-30-160933-837. The Handbook explained to transgender service members that DoD’s revised transgender service member policy “ensures your medical care is brought into the military health system (MHS), protects your privacy when receiving medical care, and establishes a structured process whereby you may transition gender when medically necessary.” Id. at 17. The Handbook encouraged transgender service members to be “open and honest with your leadership when discussing the gender transition process,” and further encouraged transgender service members to disclose their transgender status to colleagues. Id. at 20.
144. The Handbook also provided guidance to commanders and non-transgender service members. Id. at 25–33. The topics in the Handbook include an overview of the gender transition approval process; guidance specific to transgender service members, commanders, and non-transgender service members, including communication, medical care, deployment and physical fitness, and privacy; frequently asked questions and answers; various potential scenarios and guidance on how to address them; and resources for further information. See generally id.
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Case 1:17-cv-02459-MJG Document 148 Filed 04/27/18 Page 30 of 58 145. Implementation training began shortly after the policy was announced. This training involved commanders, medical personnel, the operating forces, and recruiters. The training was directed to the entire joint force, in the United States and around the world. 146. During this same timeframe, each of the service branches conducted a comprehensive review of regulations governing medical care, administrative separations, and manpower management, in order to ensure that service-level issuances were consistent with the DoD instructions. D. Twitter Announcement of Categorical Ban on Service by Men and Women
Who Are Transgender 147. On the morning of July 26, 2017, President Trump posted the following announcement on Twitter, under the handle @realDonaldTrump:
148. The Trump Administration has provided no evidence that this about-face in policy was supported by any study of the issue or any consultation with military officers, DoD officials, other military experts, or medical or legal experts.
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149. Press reports indicate that President Trump’s motivations in abruptly announcing a transgender ban were largely political, reflecting a desire to placate legislators and advisers who bear animus and moral disapproval toward men and women who are transgender. Rachel Bade & Josh Dawsey, Inside Trump’s Snap Decision to Ban Transgender Troops, Politico (July 26, 2017, 2:07 PM), http://www.politico.com/story/2017/07/26/trump-transgender-military-banbehind-the-scenes-240990; see also, e.g., Tom Porter, Transgender Military Ban: The Rise of Anti-LGBT Hate Groups in Trump’s White House, Newsweek (July 26, 2017, 12:47 PM), http://www.newsweek.com/anti-lgbt-hate-groups-transgender-military-ban-trump-642218; Asawin Suebsaeng et al., Trump Bows to Religious Right, Bans Trans Troops, The Daily Beast (July 26, 2017, 12:33 PM), http://www.thedailybeast.com/trump-bows-to-religious-right-banstrans-troops.
150. According to subsequent media reports, “President Donald Trump’s White House and Defense Department lawyers had warned him against the transgender military ban for days” and were “startl[ed]” when they “learned of the change in a series of tweets.” Josh Dawsey, John Kelly’s Big Challenge: Controlling the Tweeter in Chief, Politico (Aug. 4, 2017, 6:03 PM), http://www.politico.com/story/2017/08/04/trump-john-kelly-challenge-twitter-241343.
151. President Trump’s actions immediately caused the Serving Plaintiffs and other transgender service members to fear for their careers, the well-being of their family members and dependents, their health care and, in some cases, their safety.
152. The President’s actions were also experienced by the Serving Plaintiffs as a betrayal, in light of their actions to come out publicly to military personnel in reliance on the June 2016 directive.
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153. Close to 60 retired generals and flag officers from various military branches also
found President Trump’s tweet to undermine national security and military readiness, stating:
This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie . . . The military conducted a thorough research process on this issue and concluded that inclusive policy for transgender troops promotes readiness. . . . We could not agree more.
Fifty-Six Retired Generals and Admirals Warn that President Trump’s Anti-Transgender Tweets,
if Implemented, Would Degrade Military Readiness, Palm Ctr. (Aug. 1, 2017),
http://www.palmcenter.org/fifty-six-retired-generals-admirals-warn-president-trumps-anti-
transgender-tweets-implemented-degrade-military-readiness/.
154. Members of Congress were similarly “troubled” by President Trump’s tweet on a
bipartisan basis, with one Republican lawmaker (and former Navy SEAL) issuing the following
statement:
I am troubled that [DoD] seemed to be unaware of this potential policy change and how it was made public. I understand the DoD is in the middle of a review of relevant policies and I believe this ban is premature. There are heroic military members willing to put their lives on the line and give the ultimate sacrifice on our behalf, regardless of their gender identity. I support the ability for those who meet all military requirements, medical and otherwise, to have the opportunity to serve our great country.
See Rep. Scott Taylor (R-Va.), Statement on Trump Transgender Ban (July 26, 2017),
https://taylor.house.gov/media/press-releases/statement-trump-transgender-ban.
155. Senator John McCain, Chairman of the Senate Committee on Armed Services;
also repudiated President Trump’s announcement, stating:
The Department of Defense has already decided to allow currentlyserving transgender individuals to stay in the military, and many are serving honorably today. Any American who meets current medical and readiness standards should be allowed to continue serving. There is no reason to force service members who are able to fight,
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train, and deploy to leave the military—regardless of their gender identity. We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so—and should be treated as the patriots they are. See Sen. John McCain (R-Ariz.), Statement by SASC Chairman John McCain on Transgender Americans in the Military (July 26, 2017), https://www.mccain.senate.gov/public/index.cfm/2017/7/statement-by-sasc-chairman-johnmccain-on-transgender-americans-in-the-military. 156. The Department of Defense declined comment on President Trump’s policy announcement, referring questions to the White House. 157. The Secretary of Defense was on vacation at the time of President Trump’s announcement on Twitter. E. The Transgender Service Member Ban 158. Early Friday evening on August 25, 2017, President Trump issued his Transgender Service Member Ban in the form of a Memorandum for the Secretary of Defense and Secretary of Homeland Security. A copy is attached as Exhibit C to Plaintiffs’ original Complaint, ECF 1-4. 159. The Transgender Service Member Ban stated that in President Trump’s own “judgment,” DoD’s decision to adopt the Open Service Directive “failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.” 160. The Transgender Service Member Ban therefore “direct[ed]” the Secretary of Defense and the Secretary of Homeland Security “to return to the longstanding policy and
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practice on military service by transgender individuals that was in place prior to June 2016,” until President Trump is personally persuaded that a change is warranted. Transgender Service Member Ban § 1(b).
161. The Transgender Service Member Ban ordered that the policy banning enlistment of men and women who are transgender be extended, until a recommendation to the contrary is made “that I find convincing.” Id. § 2(a). The Transgender Service Member Ban further ordered a “halt” to the use of DoD resources “to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Id. § 2(b).
162. The Transgender Service Member Ban specified that provisions banning men and women who are transgender from enlisting would take effect on January 1, 2018 (the date Defendant Mattis’s directive delaying accessions was set to expire). It further provided that the provisions banning existing transgender service members from continued service and banning medically necessary health care would take effect on March 23, 2018. Id. § 3.
163. The Transgender Service Member Ban further directed the Secretary of Defense, in consultation with the Secretary of Homeland Security, to submit to President Trump by February 21, 2018, a plan to implement the Transgender Service Member Ban and “determine how to address transgender individuals currently serving in the United States military.” Id. § 3.
164. The Transgender Service Member Ban gave the Secretary of Defense discretion to determine how to implement the Ban, but it did not leave discretion for the Secretary of Defense to determine whether to implement it.
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F. Fundamental Contradiction Between Transgender Service Member Ban and DoD’s Own Considered Conclusions
165. Although the Transgender Service Member Ban purported to be based on President Trump’s “judgment,” that judgment appears to reflect nothing more than uninformed speculation, myths, and stereotypes that have already been rebutted by an extensive and rigorous evidence-based process.
166. For example, as justification for the Transgender Service Member Ban, President Trump stated that allowing men and women who are transgender to continue serving would be disruptive. But the 2016 study commissioned by DoD found that a transgender service member’s care would have a substantial impact on readiness only if (1) that service member worked in an “especially unique” military occupation, (2) that occupation was “in demand at the time of transition,” and (3) the service member needed to be available for “frequent, unpredicted mobilizations.” RAND Report, at 43. “Having completed medical transition, a service member could resume activity in an operational unit if otherwise qualified.” Id. Upon information and belief, the DoD’s own working group reached similar conclusions in 2016. The American Medical Association similarly adopted a resolution that “there is no medically valid reason to exclude transgender individuals from service in the [United States] military.”
167. Former high-ranking military personnel have indicated that the Transgender Service Member Ban—not the Open Service Directive—will cause serious disruption to the Armed Forces. See Fifty-Six Retired Generals and Admirals Warn that President Trump’s AntiTransgender Tweets, if Implemented, Would Degrade Military Readiness, supra (“This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie, as well as non-transgender peers who would be forced to choose between reporting their comrades
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or disobeying policy. As a result, the proposed ban would degrade readiness[.]”) (emphases added)).
168. President Trump has similarly invoked alleged concerns about “unit cohesion.” The RAND study noted that “[t]he underlying assumption [of these alleged concerns] is that if service members discover that a member of their unit is transgender, this could inhibit bonding within the unit, which, in turn, would reduce operational readiness.” Id. at 44.
169. To study the validity of this argument, RAND looked to, among other things, the experiences of foreign countries that permit open transgender military service. There are 18 such countries: Australia, Austria, Belgium, Bolivia, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, the Netherlands, New Zealand, Norway, Spain, Sweden, and the United Kingdom. Observing that “there has been no significant effect of openly serving transgender service members on cohesion, operational effectiveness, or readiness” in foreign militaries that permit open transgender service, and that “direct interactions with transgender individuals significantly reduce negative perceptions and increase acceptance,” the RAND study concluded: “[W]e anticipate a minimal impact on readiness from allowing transgender personnel to serve openly.” Id. at 44–45, 47. Upon information and belief, the DoD’s own working group reached similar conclusions in 2016.
170. Senator Tammy Duckworth—an Iraq War Veteran, Purple Heart recipient and former Assistant Secretary of the Department of Veterans Affairs—has explained that the Transgender Service Member Ban, not the Open Service Directive, would “harm our military readiness”:
When I was bleeding to death in my Black Hawk helicopter after I was shot down, I didn’t care if the American troops risking their lives to help save me were gay, straight, transgender, black, white or brown. All that mattered was they didn’t leave me behind. If you
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are willing to risk your life for our country and you can do the job, you should be able to serve—no matter your gender identity or sexual orientation. See Sen. Tammy Duckworth (D-Ill.), Duckworth Statement on Reports Trump Administration Directing DOD to Discriminate Against Transgender Servicemembers (Aug. 24, 2017), https://www.duckworth.senate.gov/news/press-releases/duckworth-statement-on-reports-trumpadministration-directing-dod-to-discriminate-against-transgender-servicemembers. 171. Finally, President Trump claimed that allowing transgender service members to continue service would be too expensive. The RAND Report’s study found to the contrary. Namely, “even in the most extreme scenario that we were able to identify using the private health insurance data, we expect only a 0.13-percent ($8.4 million out of $6.2 billion) increase in [active component] health care spending.” RAND Report, at 36. By contrast, total military spending on erectile dysfunction medicines amounts to $84 million annually, which, on information and belief, is almost forty times the cost of gender dysphoria related medical care for active duty transgender service members in 2017. Patricia Kime, DoD Spends $84M a Year on Viagra, Similar Meds, Military Times (Feb. 13, 2015), http://www.militarytimes.com/paybenefits/military-benefits/health-care/2015/02/13/dod-spends-84m-a-year-on-viagra-similarmeds/. 172. An August 2017 report by the Palm Center concluded that implementing the Transgender Service Member Ban would cost $960 million. See Aaron Belkin et al., Discharging Transgender Troops Would Cost $960 Million, Palm Center (Aug. 2017), available at http://www.palmcenter.org/wp-content/uploads/2017/08/cost-of-firing-trans-troops-3.pdf. G. The Preliminary Injunctions 173. The six original Serving Plaintiffs and Plaintiff ACLU of Maryland filed the instant lawsuit on August 28, 2017, and filed a first amended complaint on September 14, 2017.
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On November 21, 2017, this Court issued a preliminary injunction prohibiting the Defendants from taking any action to enforce the policies and directives encompassed in President Trump’s August 25, 2017 Memorandum.
174. Three other district courts issued similar preliminary injunctions. 175. As a result of those injunctions, the Open Service policy remains in effect, and the military began accepting transgender recruits on January 1, 2018. H. The Implementation Plan 176. On February 22, 2018, Secretary Mattis presented the President with his implementation plan, consisting of a short memo (“Implementation Memo”) and an unsigned document entitled “Department of Defense Report and Recommendations on Military Service by Transgender Persons” totaling 44 pages (the “Implementation Report”) (together “the Implementation Plan”). 177. The Implementation Plan sets out a two-pronged approach to effectuate the President’s ban on transgender individuals serving in the military. First, transgender individuals who “require or have undergone gender transition” are disqualified from military service. ECF 120-2 at 32. Second, all other transgender individuals may serve only “in their biological sex.” Id. at 34 (emphasis added). Together, these provisions effectively exclude all transgender individuals from being able to enlist. Among other things, these provisions mean that transgender individuals may not serve in accordance with their gender identity or receive medically necessary transition-related care. 178. The Implementation Plan also contains a “grandfather” clause exemption, which permits service members diagnosed with gender dysphoria since the Open Service Directive took effect and prior to the effective date of the Implementation Plan to “continue to receive all medically necessary treatment, to change their gender marker in DEERS, and to serve in their
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preferred gender.” The Implementation Plan states that the grandfather clause “is and should be deemed severable from” the remainder of the policy “should [DoD’s] decision to exempt these Service members be used by a court as a basis for invalidating the entire policy.” Implementation Report at 43. There are questions about the extent of protection this exception to the Ban will provide to current service members who are transgender and who were diagnosed in the specified time period. The Implementation Plan does not explain how DoD and the military services intend to interpret and apply this exemption. On information and belief, some service members who are transgender are already being told that they may not reenlist.
179. On March 23, 2018, President Trump issued a new memorandum, acknowledging receipt of Secretary Mattis’s implementation plan and authorizing Secretary of Defense and the Secretary of Homeland Security to proceed with the plans for implementation.
180. President Trump’s March 23rd memorandum states that it “revoke[s] [President Trump’s] memorandum of August 25, 2017.” In fact, however, President Trump’s March 23 memorandum is the next step in enforcing and implementing the Transgender Service Member Ban.
I. Reaction of the Medical Community 181. The Implementation Plan was quickly condemned by the mainstream medical community. On March 26, 2018, the American Psychological Association released a statement indicating it was “alarmed” by the Administration’s “misuse of psychological science to stigmatize transgender Americans and justify limiting their ability to serve in uniform and access medically necessary healthcare.” See Arthur C. Evans Jr., APA Statement Regarding Transgender Individuals Serving in Military (March 26, 2018), available at http://www.apa.org/news/press/releases/2018/03/transgender-military.aspx. The APA further stated that:
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Substantial psychological research shows that gender dysphoria is a treatable condition, and does not, by itself, limit the ability of individuals to function well and excel in their work, including in military service. The science is clear that individuals who are adequately treated for gender dysphoria should not be considered mentally unstable. […] No scientific evidence has shown that allowing transgender people to serve in the armed forces has an adverse impact on readiness or unit cohesion. What research does show is that discrimination and stigma undermine morale and readiness by creating a significant source of stress for sexual minorities that can harm their health and well-being.
Id.
182. On March 28, 2018, the Palm Center released a joint statement by former U.S.
Surgeons General M. Joycelyn Elders and David Satcher, stating:
We are troubled that the Defense Department’s report on transgender military service has mischaracterized the robust body of peer-reviewed research on the effectiveness of transgender medical care as demonstrating ‘considerable scientific uncertainty.’ In fact, there is a global medical consensus that such care is reliable, safe, and effective. […] A wide body of reputable, peer-reviewed research has demonstrated to psychological and health experts that treatments for gender dysphoria are effective. Research on the effectiveness of medical care for gender dysphoria was the basis of the American Medical Association’s 2015 resolution that ‘there is no medically valid reason to exclude transgender individuals from service in the U.S. military,’ and we expressed our support for the resolution at the time of its passage. In light of last week’s announcement concerning military policy for transgender service members, we underscore that transgender troops are as medically fit as their non-transgender peers and that there is no medically valid reason—including a diagnosis of gender dysphoria—to exclude them from military service or to limit their access to medically necessary care.
M. Joycelyn Elders and David Satcher, Former Surgeons General Debunk Pentagon Assertions
about Medical Fitness of Transgender Troops, Palm Center (March 28, 2018), available at
http://www.palmcenter.org/former-surgeons-general-debunk-pentagon-assertions-about-medical-
fitness-of-transgender-troops/.
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183. Expressing similar views, the American Medical Association on April 3, 2018 sent a letter to the Secretary of Defense on behalf of its members stating:
We believe there is no medically valid reason—including a diagnosis of gender dysphoria—to exclude transgender individuals from military service. Transgender individuals have served, and continue to serve, our country with honor, and we believe they should be allowed to continue doing so. […] We support the finding of the RAND study conducted for the Department of Defense on the impact of transgender individuals in the military that the financial cost is negligible and a rounding error in the defense budget. It should not be used as a reason to deny patriotic Americans an opportunity to serve their country. We should be honoring their service. James L. Madara, Letter to The Honorable James N. Mattis on Behalf of the American Medical Association (April 3, 2018), available at https://searchlf.amaassn.org/undefined/documentDownload?uri=%2Funstructured%2Fbinary%2Fletter%2FLETTER S%2F2018-4-3-Letter-to-Mattis-re-Transgender-Policy.pdf. J. Immediate and Irreparable Harm to the Serving Plaintiffs from the Transgender Service Member Ban 184. The Serving Plaintiffs and other transgender service members face immediate and irreparable harm as a result of the Transgender Service Member Ban, including as implemented through the Implementation Plan. 185. Serving Plaintiffs and other transgender service members now face the reality that, despite their years of commitment and training, their careers could prematurely end and various benefits could be made permanently unavailable. Terminating the active service of the Serving Plaintiffs and other transgender service members would also adversely affect their retirement benefits, and could in some cases preclude eligibility for retirement benefits altogether.
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186. The purported “grandfather” exemption to the DoD’s attempt to implement the Transgender Service Member Ban leaves the Serving Plaintiffs vulnerable. The grandfather exemption specifically states that the Defendants can withdraw it immediately under certain circumstances that are beyond the Serving Plaintiffs’ control, and thus does not remove the irreparable harm the Serving Plaintiffs face. In addition, the Implementation Report cautions that transgender service members “may not be deemed to be non-deployable for more than 12 months or for a period of time in excess of that established by Service policy (which may be less than 12 months)” or may face removal from the military, without providing any detail as to how such policies will be interpreted and applied. See Implementation Report at 43. The Implementation Report’s discussion of hormones suggests that transgender service members receiving hormones may be considered non-deployable, even though that is not how the military treats individuals prescribed hormones for other reasons. Therefore, even those transgender service members who are “protected” by the grandfather exemption are exposed to possible termination for arbitrary reasons related to their transgender status.
187. Plaintiff Petty Officer Stone has served in the U.S. Navy for 11 years, which included a nine-month deployment to Afghanistan. Petty Officer Stone was awarded an achievement medal in connection with his deployment, and he has received multiple other commendations, including a flag letter of commendation and multiple recommendations for early promotion. Despite this lengthy service and deployment, and the fact that he has received extensive and costly training in his field, he faces the prospect that he will be forced out of the U.S. Navy pursuant to the Transgender Service Member Ban.
188. Plaintiff Staff Sergeant Cole has served in the U.S. Army for nearly a decade, which included a one-year deployment to Afghanistan. Despite her lengthy service, experience
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as a team leader, designated marksman, and Cavalry Scout, she faces the prospect that she will be forced out of the U.S. Army pursuant to the Transgender Service Member Ban.
189. Plaintiff Senior Airman Doe 1 has served for approximately six years in the U.S. Air Force, which included a deployment to Qatar. Despite his service and the fact that he was awarded “Airman of the Year” for his flight, he faces the prospect that he will be forced out of the U.S. Air Force pursuant to the Transgender Service Member Ban.
190. Plaintiff Airman First Class George has served in the Air National Guard for two and a half years and intends to pursue a commission in the U.S. Army. Despite his service as base security force, he may be prohibited from commissioning in the U.S. Army and faces the prospect that he will be forced out of the Air National Guard pursuant to the Transgender Service Member Ban.
191. Plaintiff Petty Officer Gilbert has served in the U.S. Navy for 13 years, which included a one-year deployment to Afghanistan. Despite her lengthy service and her specialized knowledge as an information and space systems technician, she faces the prospect that she will be forced out of the U.S. Navy pursuant to the Transgender Service Member Ban.
192. Plaintiff Technical Sergeant Parker has served in the U.S. Marine Corps for four years and the Air National Guard for 26 years, which included deployments to Japan and Germany. Despite her lengthy service, she faces the prospect that she will be forced out of the Air National Guard pursuant to the Transgender Service Member Ban.
193. In addition, many transgender service members, including Plaintiffs Stone, Cole, Doe 1, Gilbert, and Parker, may be denied medically necessary treatment that, in many cases, has already been recommended by military medical professionals.
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194. While the Implementation Report claims that transgender service members who meet certain limited criteria relating to the date their gender dysphoria was diagnosed “may continue to receive all medically necessary [care],” the Implementation Report provides no details as to what will be considered “medically necessary” or the process that will govern requests for such care. In light of the Implementation Report’s distortion of medical literature regarding the efficacy of care for gender dysphoria and rejection of the views of the mainstream medical community, it is unclear what care will still be provided.
195. Each transgender service member who is denied medically necessary treatment will suffer serious harm.
196. The Serving Plaintiffs may also face irreparable harm to their education as a result of the Transgender Service Member Ban and the Implementation Plan.
197. Plaintiff Cole currently benefits from the Army’s tuition assistance, which permits her to take college classes through the University of Maryland - University College. If she is discharged, she will no longer be eligible for tuition assistance.
198. The Transgender Service Member Ban and the Implementation Plan may prevent Plaintiff Gilbert from being accepted to Officer Candidate School after finishing her coursework at Arizona State University.
199. The Serving Plaintiffs and other transgender service members also face extraordinary stress, uncertainty, and stigma from the ban on transgender individuals from open service and the singling out their medical care for a ban on coverage. While the Serving Plaintiffs and some other current service members may be covered by the “grandfather” exemption in the Implementation Plan, the scope of that protection is unclear and the clause is subject to severance. At any time, the exemption could be rescinded or disregarded, and the
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military will be “authorized to discharge” every transgender service member. The stigma that the Serving Plaintiffs and other transgender service members face has been increased by the Implementation Report’s use of stereotypes and conjecture to allege that persons with gender dysphoria, even after successful treatment, have higher rates of psychiatric needs, including the Implementation Report’s treatment of gender dysphoria as a “psychiatric disorder” or “mental health condition.” The Implementation Report even invites speculation whether transgender service members “can meet the standards for military duty,” and suggests that decreases in military readiness can be blamed on transgender service members’ medical needs, fueling antitransgender sentiment.
200. Even as the Serving Plaintiffs wait for the Transgender Service Member Ban to be further implemented via the Implementation Plan and subsequent directives, they face significant uncertainty and concern about their careers and their futures, must plan for potential discharge, and experience the stigma of being told their service to their country is not valued or wanted, and that their medical care needs are not real or necessary.
K. Immediate and Irreparable Harm to the Enlisting Plaintiffs from the Transgender Service Member Ban
201. The Enlisting Plaintiffs and other transgender Americans who wish to join the U.S. military face immediate and irreparable harm as a result of the Transgender Service Member Ban, including as implemented through the Implementation Plan.
202. Each Enlisting Plaintiff and other potential recruits who are transgender will be denied the right to join the U.S. military solely based on characteristics associated with their transgender identity, regardless of whether they are capable of meeting enlistment standards. They have lost access to careers and opportunities that are available to all other Americans.
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203. Plaintiffs D’Atri, Wood, Branco, Doe 2, Roe 1, and Doe 3, will all be barred entirely from serving openly in the military because they are transgender. Plaintiffs D’Atri, Wood, Branco, and Doe 2 are all actively engaged with discussions with recruiters and face the imminent harm of being denied the opportunity to enlist. Under the terms of the Open Service Directive, Plaintiffs Wood and Branco are currently eligible to enlist, and are not prohibited from enlisting due to either their gender identity or their medical history. Plaintiffs D’Atri and Doe 2 expect to be qualified over the anticipated life of this litigation.
204. Plaintiffs Roe 1 and Doe 3, while earlier in the process, each have a concrete plan to enlist in the military. Each of the Enlisting Plaintiffs would be disqualified from military service under the terms of the Implementation Plan.
LEGAL CLAIMS COUNT I (Against All Defendants) VIOLATION OF THE EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE 205. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 206. The equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution protects all persons, including members of the Armed Forces. 207. President Trump issued the Transgender Service Member Ban, directing that: (i) current policy providing that transgender status is not a basis for discharge is rescinded, and service members who are transgender are barred from serving in the U.S. Armed Forces, irrespective of their ability to demonstrate their fitness to serve (§ 1(b)); (ii) enlistment in the military or commissioning as an officer by men and women who are transgender is prohibited,
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irrespective of their ability to demonstrate their fitness to serve, including the strict accession

requirements adopted by DoD (§ 2(a)); and (iii) currently serving transgender service members

are denied medically necessary surgical care, including in cases where individuals are stable in

their gender transition and able to demonstrate their fitness to serve on the same basis as other

service members (§ 2(b)).

208. In compliance with the directives of the Transgender Service Member Ban, the

Department of Defense’s Implementation Plan disqualifies transgender individuals from military

service, subject to an uncertain “grandfather” exemption offering incomplete protection.

209. The policies set out in the Transgender Service Member Ban and the

Implementation Plan violate Plaintiffs’ right to equal protection.

i.

Rescission of Protection Against Discharge of Existing Service

Members (Directive Section 1(b) of the Ban)

210. Section 1(b) of the Transgender Service Member Ban directed the Secretary of

Defense to “return to the longstanding policy and practice on military service by transgender

individuals that was in place prior to June 2016,” indefinitely. Section 1(a) described the policy

being reinstated as one under which the military is “authorized [to] discharge” service members

on the basis of their transgender status.

211. Section 1(b) thus established a broad ban on service by men and women who are

transgender, with immediate and longer-term impacts on those currently serving.

212. Section 3 of the Transgender Service Member Ban required the Secretary of

Defense, in implementing the Transgender Service Member Ban, to determine by February 21,

2018 how to “address” currently serving transgender men and women. Although these service

members were permitted to continue serving until this determination was made, transgender

service members were immediately impacted by the Transgender Service Member Ban.

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213. All service members who are transgender immediately have grave reason to fear for their careers, and must reevaluate career plans that were premised on the Open Service Directive. Serving Plaintiffs and other service members who are transgender experience significant stress and psychological harm caused by this impending threat to their military service.
214. Service members who are transgender were and are also immediately injured by the stigma created by the Transgender Service Member Ban. Even if some transgender service members are permitted to continue serving under the Implementation Plan, they now serve in a military where the Commander-in-Chief has announced that their service is unwanted and unwelcome, they are potentially subject to discharge at any time solely on the basis of their transgender status or characteristics associated with the status, their medically necessary care could be withheld, and they may be held to entirely different standards on issues such as deployability and career development that differ from standards applied to other service members. Any transgender service member permitted to remain in the military will necessarily be treated as, and experience the harms associated with, a form of second-class status.
215. The Implementation Plan has not cured this harm. The Implementation Plan attempts to circumvent scrutiny on this issue by including a grandfather clause that purportedly exempts current openly serving transgender service members from immediate discharge. However, the scope of protection under the grandfather exemption is unclear, and the Implementation Plan specifically states that this clause may be severed in certain circumstances. Additionally, the Implementation Plan states that transgender service members serving under the grandfather exemption must “not be deemed to be non-deployable for more than 12 months or for a period of time in excess of that established by Service policy (which may be less than 12
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months).” The Implementation Report states that hormone treatments for transgender service members “could render [them] non-deployable for a significant period of time—perhaps even a year” (emphasis added), despite the fact that the military does not consider hormones used to treat other conditions as disqualifying from deployment. This suggests that Defendants intend to develop standards or interpretations that would differentially impact transgender service members, creating a backdoor to the grandfather clause that Defendants may open at any time.
216. Furthermore, the inclusion of a grandfather exemption does not address the injury from stigma. Transgender service members will still be treated as a suspect group, subject to a set of standards different from those governing other service members. The Implementation Report contains unsubstantiated allegations that can be used to blame transgender service members for poor unit performance, by claiming that the mere presence of a transgender service member may harm unit cohesion and military readiness. Transgender service members will be marked as unwanted by their Commander-in-Chief, and their presence in the military may be attributed to “judicial interference” rather than their qualifications, hard work, personal sacrifice, and patriotism.
ii. Ban on New Enlistments and Commissions (Directive Section 2(a) of the Ban)
217. Section 2(a) of the Transgender Service Member Ban directed the Secretary of Defense to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018.”
218. In so stating, Section 2(a) prohibited men and women who are transgender from enlisting and serving openly in the United States Armed Forces. The Open Service Directive had determined that men and women who are transgender would not be disqualified, subject to rigorous accession criteria, at the end of a phase-in period on July 1, 2017. Defendant Mattis
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delayed new enlistments for a further six months on the asserted basis that further study was warranted.
219. DoD treats commissioning as an officer as a new accession. Thus, candidates who would otherwise be eligible for commissions, would not be eligible as a result of President Trump’s indefinite ban on new accessions.
220. The Department of Defense has implemented the ban by disqualifying transgender individuals from open service. The Implementation Plan categorically bans “[t]ransgender persons who require or have undergone gender transition,” and disqualifies all “[t]ransgender persons with a history or diagnosis of gender dysphoria” from military service. The only people who are actually able to serve under the Implementation Plan are people who are not transgender at all.
iii. Ban on Medically Necessary Care (Directive Section 2(b) of the Ban)
221. Section 2(b) of the Transgender Service Member Ban directed the Secretary of Defense to “halt all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel,” except “to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.”
222. Transgender service members who require medically necessary care to treat gender dysphoria are entitled to care on an equal basis to what is provided to non-transgender service members with medical conditions requiring comparable medically necessary care.
223. Many of the same or substantially equivalent surgical procedures banned by the Transgender Service Member Ban are covered by the military when used to treat other medical conditions. The Transgender Service Member Ban singled out transgender service members for
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different treatment by denying them coverage for medically necessary care that is inherently

related to their transgender status and gender nonconformity.

224. The Implementation Plan fails to cure this immediate harm. While the

Implementation Plan claims that transgender service members who meet certain limited criteria

relating to the date their gender dysphoria was diagnosed “may continue to receive all medically

necessary care,” the Implementation Plan provides no details as to what will be considered

“medically necessary” or the process that will govern requests for and provision of such care. In

light of the Implementation Report’s distortion of medical literature regarding the efficacy of

care for gender dysphoria and rejection of the views of the mainstream medical community, it is

unclear what care will still be provided.

225. Under the Implementation Plan, transgender service members will be held to

different standards to receive medically necessary care than all other members of the U.S.

military, even where a transgender service member seeks the very same or substantially

equivalent medical procedures.

*

*

*

226. The Defendants’ actions of adopting, implementing, and enforcing each of the

policies in the Transgender Service Member Ban, whether through the Implementation Plan or

via other means, discriminate against Serving Plaintiffs and Enlisting Plaintiffs and other men

and women who are transgender on the basis of sex, which is subject to, and fails, heightened

scrutiny under the Fifth Amendment.

227. The Defendants’ actions of adopting, implementing, and enforcing each of the

policies in the Transgender Service Member Ban, whether through the Implementation Plan or

via other means, discriminate against the Serving Plaintiffs and Enlisting Plaintiffs and other

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men and women who are transgender on the basis of their transgender status, which is independently subject to, and fails, heightened scrutiny under the Fifth Amendment.
a. Men and women who are transgender, as a class, have historically been subject to discrimination.
b. Men and women who are transgender, as a class, have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society.
c. Men and women who are transgender, as a class, exhibit immutable or distinguishing characteristics that define them as a discrete group.
d. Men and women who are transgender, as a class, are a minority with relatively little political power.
228. The Defendants’ actions of adopting, implementing, and enforcing each of the policies in the Transgender Service Member Ban, whether through the Implementation Plan or via other means, discriminate against Serving and Enlisting Plaintiffs and other transgender individuals on the basis of invidious stereotypes, irrational fears, and moral disapproval, which are not permissible bases for differential treatment under any standard of review.
229. As a result of the policies, practices, and conduct of the Defendants, men and women who are transgender, including Serving Plaintiffs and Enlisting Plaintiffs and members of Plaintiff ACLU of Maryland, have suffered, or imminently will suffer, harm, including stigma, humiliation and/or emotional distress, loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, threatened disruption of their military service (including loss of promotion and other career opportunities), and violations of their constitutional right to equal protection. Defendants’ conduct continues to
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violate the equal protection rights of men and women who are transgender on a daily basis and is the proximate cause of widespread harm among Plaintiffs.
230. Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of their Fifth Amendment rights to equal protection.
COUNT II (Against All Defendants) VIOLATION OF SUBSTANTIVE DUE PROCESS 231. Plaintiffs re-allege and incorporate by reference as if fully set forth herein the allegations in all preceding paragraphs. 232. The substantive component of the Fifth Amendment’s Due Process Clause includes not only the privileges and rights expressly enumerated by the Bill of Rights, but also includes the fundamental rights implicit in the concept of ordered liberty. 233. The Fifth Amendment bars certain government actions regardless of the fairness of the procedures used to implement them, particularly conduct that is so arbitrary as to constitute an abuse of governmental authority. 234. As a result of the Transgender Service Member Ban and the Implementation Plan, men and women who are transgender, including Serving Plaintiffs and Enlisting Plaintiffs, have suffered, or will imminently suffer, a violation of their right to substantive due process because, due to their transgender status, and without any reasoned basis, they are denied an opportunity to demonstrate their continued fitness for duty; the ability to enlist in the U.S. Armed Forces despite being fit to serve; and/or the opportunity to receive medical care on an equal basis as service members and enlistees who are not transgender. Moreover, the Transgender Service Member Ban and the Implementation Plan unfairly and indefensibly strip the Serving Plaintiffs
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and other transgender service members of opportunities and benefits previously recognized by DoD’s Open Service Directive, on which they relied.
235. President Trump issued the Transgender Service Member Ban, directing that: (i) transgender status is a basis for discharge, and current service members who are transgender are barred from serving in the U.S. Armed Forces, irrespective of their ability to demonstrate their fitness to serve (§ 1(b)); (ii) enlistment in the military or commissioning as an officer by men and women who are transgender is prohibited, irrespective of their ability to demonstrate their fitness to serve (§ 2(a)); and (iii) currently serving transgender service members are denied medically necessary surgical care, including in cases where individuals are stable in their gender transition and able to demonstrate their fitness to serve on the same basis as other service members (§ 2(b)).
236. The Department of Defense’s Implementation Plan enforces and implements the Transgender Service Member Ban by (i) subjecting transgender service members to discharge, (ii) prohibiting transgender recruits from enlisting or commissioning, and (iii) denying medically necessary treatments to transgender service members. The Implementation Plan’s “grandfather” clause fails to offer meaningful protection from these harms: the clause is limited to exempting a subsection of transgender service members and enlistees, is not clearly defined, and may be rescinded at any time.
237. Each of these policies—as well as the Transgender Service Member Ban and the Implementation Plan as a whole— is arbitrary and inconsistent with available data, serves no legitimate government interest, and therefore violates Plaintiffs’ rights to substantive due process.
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238. The Defendants directly and proximately caused, and continue to cause, the violation of Plaintiffs’ rights to substantive due process under the law.
239. As a result of the policies, practices, and conduct of the Defendants, men and women who are transgender, including Serving Plaintiffs and Enlisting Plaintiffs and members of Plaintiff ACLU of Maryland, have suffered, or imminently will suffer, harm, including stigma, humiliation and/or emotional distress, loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, disruption of their military service (including loss of promotion and other career opportunities), and violations of their constitutional right to substantive due process. Defendants’ conduct continues to violate the substantive due process rights of men and women who are transgender on a daily basis and is the proximate cause of widespread harm among Plaintiffs.
240. Plaintiffs seek declaratory and injunctive relief because they have no adequate remedy at law to prevent future injury caused by Defendants’ violation of their Fifth Amendment rights to substantive due process.
RELIEF REQUESTED Wherefore, Plaintiffs respectfully request that this Court:
A. Issue a declaratory judgment that the policies and directives encompassed in President Trump’s Memorandum for the Secretary of Defense and the Secretary of Homeland Security, dated August 25, 2017 and entitled “Military Service by Transgender Individuals” and in Secretary Mattis’s February 22, 2018, memorandum regarding “Military Service by Transgender Individuals” violate the equal protection component of the Fifth Amendment to the U.S. Constitution, and are invalid on their face and as applied to Plaintiffs;
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B. Issue a declaratory judgment that the policies and directives encompassed in President Trump’s Memorandum for the Secretary of Defense and the Secretary of Homeland Security, dated August 25, 2017 and entitled “Military Service by Transgender Individuals,” and in Secretary Mattis’s February 22, 2018, memorandum regarding “Military Service by Transgender Individuals,” violate the Fifth Amendment’s guarantee of substantive due process, and are invalid on their face and as applied to Plaintiffs;
C. Issue an Order permanently enjoining Defendants Mattis, Esper, Spencer, Wilson, Nielsen, and Zukunft from implementing and enforcing the policies and directives encompassed in President Trump’s Memorandum for the Secretary of Defense and the Secretary of Homeland Security, dated August 25, 2017 and entitled “Military Service by Transgender Individuals,” and in Secretary Mattis’s February 22, 2018, memorandum regarding “Military Service by Transgender Individuals.”
D. Award reasonable attorneys’ fees and allowable costs of court; and E. Award such other and further relief as it may deem appropriate and in the interests
of justice.
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Dated: April 23, 2018
David M. Zionts* Carolyn F. Corwin* Mark H. Lynch (Bar No. 12560) Augustus Golden* Jeff Bozman* Marianne F. Kies (Bar No. 18606) Christopher J. Hanson* Joshua D. Roselman* Peter J. Komorowski (Bar No. 20034) Mark Neuman-Lee* COVINGTON & BURLING LLP One CityCenter 850 Tenth St. NW Washington, DC 20001 Telephone: (202) 662-6000 Facsimile: (202) 778-5987 dzionts@cov.com ccorwin@cov.com mlynch@cov.com agolden@cov.com jbozman@cov.com mkies@cov.com chanson@cov.com jroselman@cov.com pkomorowski@cov.com mneumanlee@cov.com
Mitchell A. Kamin* Nicholas A. Lampros* COVINGTON & BURLING LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067 Telephone: (424) 332-4800 Facsimile: (424) 332-4749 mkamin@cov.com nlampros@cov.com
Sara D. Sunderland* COVINGTON & BURLING LLP One Front Street San Francisco, California 94111 Telephone: (415) 591-7004 Facsimile: (415) 591-6091 ssunderland@cov.com

Respectfully submitted,
/s/ Marianne F. Kies
Deborah A. Jeon (Bar No. 06905) David Rocah (Bar No. 27315) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND 3600 Clipper Mill Road, #350 Baltimore, MD 21211 Telephone: (410) 889-8555 Fax: (410) 366-7838 jeon@aclu-md.org rocah@aclu-md.org
Joshua A. Block* Chase B. Strangio* James Esseks* Leslie Cooper* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-549-2627 Fax: 212-549-2650 jblock@aclu.org cstrangio@aclu.org jesseks@aclu.org lcooper@aclu.org
Attorneys for Plaintiffs

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Case 1:17-cv-02459-MJG Document 148 Filed 04/27/18 Page 58 of 58 * Admitted pro hac vice
58

 
 Case 1:17-cv-02459-GLR Document 249 Filed 03/07/19 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al.,

:

Plaintiffs,

:

v.

:

Civil Action No. GLR-17-2459

DONALD J. TRUMP, et al.,

:

Defendants.

:

ORDER

Pending before the Court is Defendants President Donald J. Trump, Acting Secretary

of Defense Patrick M. Shanahan,1 Secretary of the Army Mark Esper, Secretary of the Navy

Richard Spencer, Secretary of the Air Force Heather Wilson, Secretary of Homeland Security

Kirstjen Nielsen, and Commandant of the U.S. Coast Guard Karl L. Schultz’s2 Motion to

Stay the Preliminary Injunction and Request for Expedited Ruling (ECF No. 234). The

Motion is ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md.

2018). For the reasons outlined below, the Court will grant the Motion.

On July 26, 2017, President Trump published a series of Tweets stating, “[T]he United

States Government will not accept or allow . . . [t]ransgender individuals to serve in any

1 On January 1, 2019, President Trump appointed Shanahan Acting Secretary of Defense. Accordingly, the Court substitutes Shanahan for James Mattis. See Fed.R.Civ.P. 25(d).
2 On June 1, 2018, President Trump appointed Schultz Commandant of the U.S. Coast Guard. Accordingly, the Court substitutes Schultz for Paul Zukunft. See Fed.R.Civ.P. 25(d).

Case 1:17-cv-02459-GLR Document 249 Filed 03/07/19 Page 2 of 6
capacity in the U.S. Military.” (2d Am. Compl. ¶¶ 6, 148).3 On August 25, 2017, President Trump issued a “Memorandum for the Secretary of Defense and the Secretary of Homeland Security” (the “2017 Memorandum”), which formalized the ban on transgender service members announced in his Tweets. (Id. ¶ 8). President Trump also directed the Secretary of Defense to develop a plan for implementing the policy directives in the 2017 Memorandum by February 21, 2018. (Id.).
On November 21, 2017, this Court issued a Preliminary Injunction enjoining Defendants from enforcing or implementing certain “policies and directives” in the 2017 Memorandum. (Prelim. Inj. at 1–2, ECF No. 84). Three different federal district courts in California, Washington, and Washington, D.C. also entered preliminary injunctions prohibiting enforcement of President Trump’s July 26, 2017 Twitter announcement or certain directives in the 2017 Memorandum. Stockman v. Trump, No. EDCV 17-1799 JGB (KKx), 2017 WL 9732572, at *16 (C.D.Cal. Dec. 22, 2017) (enjoining enforcement of “the Accession, Retention, and Sex Reassignment Surgery Directives”); Karnoski v. Trump, No. C17-1297-MJP, 2017 WL 6311305, at *10 (W.D.Wash. Dec. 11, 2017) (enjoining the defendants from “taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement”), appeal dismissed, No. 17-36009, 2017 WL 8229552 (9th Cir. Dec. 30, 2017); Doe 1 v. Trump, 275 F.Supp.3d 167, 177, 217 (D.D.C. 2017) (enjoining enforcement of the
3 The Court provided additional factual background in its November 21, 2017 and November 30, 2018 Memorandum Opinions (ECF Nos. 85, 227). The Court repeats only facts relevant to the pending Motion.
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“Accession and Retention Directives, corresponding with sections 1(b) and 2(a) of the [2017 Memorandum]”), vacated sub nom. Doe 2 v. Shanahan, No. 18-5257, 2019 WL 102309 (D.C.Cir. Jan. 4, 2019).
On February 22, 2018, the Secretary of Defense submitted to President Trump an implementation plan (the “Implementation Plan”), which recommended changes to the transgender service policy set forth in the 2017 Memorandum, including a grandfathering provision that would permit transgender individuals currently serving in the military to continue to do so. (2d Am. Compl. ¶¶ 11, 176–78). President Trump then issued a second memorandum on March 23, 2018 (the “2018 Memorandum”) revoking the 2017 Memorandum and permitting the Secretary of Defense to proceed with the Implementation Plan. (Id. ¶¶ 12, 179–80).
Because President Trump revoked the 2017 Memorandum, Defendants moved to dissolve the Preliminary Injunction on March 23, 2018. (ECF No. 120). Also in March 2018, Defendants moved to dissolve the preliminary injunctions in Stockman, Karnoski, and Doe 2. Defendants’ Motion to Dissolve the Preliminary Injunction, Stockman v. Trump, No. 17-cv1799-JGB-KK (C.D.Cal. Mar. 23, 2018), ECF No. 82; Defendants’ Motion to Dissolve the Preliminary Injunction, Karnoski v. Trump, No. 17-cv-1297-MJP (W.D.Wash. Mar. 23, 2018), ECF No. 215; Defendants’ Motion to Dissolve the Preliminary Injunction, Doe 2 v. Shanahan, No. 17-cv-1597 (CKK) (D.D.C. Mar. 23, 2018), ECF No. 96. In Stockman, Karnoski, and Doe 2, the district courts denied the motions to dissolve the preliminary injunctions. Stockman v. Trump, 331 F.Supp.3d 990, 1004 (C.D.Cal. 2018); Doe 2 v. Trump,
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315 F.Supp.3d 474, 498 (D.D.C. 2018), rev’d sub nom. Doe 2 v. Shanahan, No. 18-5257, 2019 WL 102309 (D.C.Cir. Jan. 4, 2019); Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 1784464, at *14 (W.D.Wash. Apr. 13, 2018). The defendants appealed in each of these cases. See Stockman v. Trump, No. 18-56539 (9th Cir. Nov. 16, 2018); Doe 2 v. Shanahan, No. 185257 (D.C.Cir. Aug. 27, 2018); Karnoski v. Trump, No. 18-35347 (9th Cir. Apr. 30, 2018).
On January 4, 2019, the United States Court of Appeals for the District of Columbia Circuit vacated without prejudice the preliminary injunction the United States District Court for the District of Columbia had entered. Doe 2, 2019 WL 102309, at *1. On January 22, 2019, the United States Supreme Court issued an order staying the preliminary injunctions in Karnoski and Stockman. Trump v. Karnoski, No. 18A625 (U.S. Jan. 22, 2019) (order staying preliminary injunction); Trump v. Stockman, No. 18A627 (U.S. Jan. 22, 2019) (same).
On January 24, 2019, Defendants filed their Motion to Stay the Preliminary Injunction and Request for Expedited Ruling. (ECF No. 234). Plaintiffs filed their Opposition on January 30, 2019. (ECF No. 235). On February 13, 2019, Defendants filed their Reply. (ECF No. 242).
In light of the Supreme Court’s Order, Defendants move for the Court to stay the nationwide effect of this Court’s Preliminary Injunction. Plaintiffs do not oppose a stay of the Preliminary Injunction’s nationwide effect. Instead, they oppose a stay of the Preliminary Injunction as applied to five Plaintiffs—Niko Branco, John Doe 2, Ryan Wood, Airman First Class Seven Ero George, and Petty Officer First Class Teagan Gilbert—to whom the grandfathering provision does not apply because they either intend to enlist in the military or
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become commissioned officers. Defendants argue that in staying the preliminary injunctions in Karnoski and Stockman, the Supreme Court “necessarily rejected the option of leaving each injunction in place as to the individual plaintiffs.” (Defs.’ Reply. at 3, ECF No. 242). The Court agrees with Defendants.
Before the Supreme Court, the Stockman and Karnoski defendants presented the option of narrowly tailoring the stays such that the injunctions would remain in effect only as to the plaintiffs in those cases. See Application for a Stay in the Alternative to a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Ninth Circuit at 37, Trump v. Stockman, No. 18-678 (U.S. Dec. 13, 2018) (“At a minimum, the Court should stay the nationwide scope of the injunction, such that the injunction bars the implementation of the Mattis policy only as to the seven individual respondents in this case who are currently serving in the military or seeking to join it.”); Application for a Stay in the Alternative to a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Ninth Circuit at 40, Trump v. Karnoski, No. 18-678 (U.S. Dec. 13, 2018) (same, but directed at the nine individual Karnoski plaintiffs). Presented with this choice, the Supreme Court decided to stay the nationwide effect of the preliminary injunctions in Stockman and Karnoski without any exceptions. Thus, the Supreme Court implicitly rejected the option to narrowly tailor its stays so that the preliminary injunctions were still in effect as to the individual plaintiffs. Further, the Stockman and Karnoski plaintiffs include transgender individuals who intend to join the military, Stockman, 2017 WL 9732572, at *4–6; Karnoski, 2017 WL 6311305, at *3, like certain Plaintiffs in this case. The Court, therefore, cannot materially
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distinguish Plaintiffs in this case from those for whom the Supreme Court rejected a narrow tailoring of the stays.
Thus, because the Court is bound by the Supreme Court’s decision to stay the preliminary injunctions in their entirety, the Court will grant Defendants’ Motion.4 Accordingly, it is this 7th day of March, 2019, by the United States District Court for the District of Maryland, hereby:
ORDERED that Defendants’ Motion to Stay the Preliminary Injunction and Request for Expedited Ruling (ECF No. 234) is GRANTED.
/s/ ________________________ George L. Russell, III United States District Judge
4 In issuing the present Order, the Court expresses no opinion on the merits of Defendants’ pending Motion to Dissolve the Preliminary Injunction (ECF No. 120), including whether this Court’s Preliminary Injunction applies to both the 2017 Memorandum and the 2018 Memorandum.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al., Plaintiffs,
v. DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Case 1:17-cv-02459-GLR Hon. George L. Russell, III

DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY Defendants respectfully provide notice that on June 14, 2019, the United States Court of Appeals for the Ninth Circuit in the related cases Karnoski v. Trump, Nos. 18-35347 and In re Donald J. Trump, No. 18-72159, vacated the district court’s order that struck Defendants’ motion to dissolve the preliminary injunction as well as issued a writ of mandamus and “vacate[d] the district court’s discovery order”—that directed, among other things, disclosure of all of Defendants’ deliberative documents—“so that the district court may reconsider Plaintiffs’ discovery requests giving full consideration to the Executive’s Article II prerogatives.” Op. at 56, Karnoski v. Trump, No. 18-35347 (9th Cir. June 14, 2019) (per curiam). The decision supports Defendants’ arguments regarding the dissolution of the preliminary injunction, which were raised in Defendants’ Motion to Dissolve the Preliminary Injunction, Dkt. 120, as well as Defendants’ arguments regarding dismissal of Plaintiffs’ Second Amended Complaint or the entry of summary judgment in Defendants’ favor, which were raised in Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint, or, in the Alternative, Defendants’ Motion for Summary Judgment, Dkt. 158. In addition, the Ninth Circuit’s opinion provides a basis for the Court to reconsider its Order overruling Defendants’ objections to the Magistrate Judge’s memorandum opinion and order

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concerning discovery and privilege issues. See Mem. Op., Dkt. 227; Order, Dkt. 228. Therefore, Defendants anticipate filing a motion for reconsideration and a motion to continue to stay compliance with the Magistrate Judge’s memorandum opinion and order.
A copy of the Ninth Circuit’s opinion is attached.

Dated: June 18, 2019

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General Civil Division
ANTHONY J. COPPOLINO Deputy Director, Federal Programs Branch
/s/Courtney D. Enlow COURTNEY D. ENLOW ANDREW E. CARMICHAEL Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 616-8467 Email: courtney.d.enlow@usdoj.gov
Counsel for Defendants

2

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RYAN KARNOSKI; CATHRINE SCHMID, Staff Sergeant; D. L., FKA K. G., by his next friend and mother, LAURA GARZA; HUMAN RIGHTS CAMPAIGN FUND; GENDER JUSTICE LEAGUE; LINDSEY MULLER, Chief Warrant Officer; TERECE LEWIS, Petty Officer First Class; PHILLIP STEPHENS, Petty Officer Second Class; MEGAN WINTERS, Petty Officer Second Class; JANE DOE; AMERICAN MILITARY PARTNER ASSOCIATION,
Plaintiffs-Appellees,

No. 18-35347
D.C. No. 2:17-cv-01297-MJP

STATE OF WASHINGTON, Attorney General’s Office Civil Rights Unit,
Intervenor-Plaintiff-Appellee,

v.

DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES OF AMERICA; PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of

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Defense; UNITED STATES DEPARTMENT OF DEFENSE,
Defendants-Appellants.

Appeal from the United States District Court for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding

IN RE DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES OF AMERICA; PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense; UNITED STATES DEPARTMENT OF DEFENSE; U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, ________________________

No. 18-72159 D.C. No.
2:17-cv-01297-MJP
OPINION

DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES OF AMERICA; PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense; UNITED STATES DEPARTMENT OF DEFENSE; U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN K.

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MCALEENAN, Acting Secretary of Homeland Security,
Petitioners,
v.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE,
Respondent,
RYAN KARNOSKI; CATHRINE SCHMID; D.L.; LAURA GARZA; HUMAN RIGHTS CAMPAIGN; GENDER JUSTICE LEAGUE; LINDSEY MULLER; TERECE LEWIS; PHILLIP STEPHENS; MEGAN WINTERS; JANE DOE; AMERICAN MILITARY PARTNER ASSOCIATION; STATE OF WASHINGTON,
Real Parties in Interest.

Petition for Writ of Mandamus
Argued and Submitted October 10, 2018 Portland, Oregon
Filed June 14, 2019

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Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion

SUMMARY*

Civil Rights
In an action challenging a 2017 Presidential Memorandum which barred transgender individuals from serving in the military, the 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; and (3) issued a writ of mandamus vacating the district court’s discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges.
In July 2017, President Trump announced on Twitter that transgender individuals would not be allowed to serve in the military. This was followed by an August 2017 Memorandum implementing his announcement. Plaintiffs brought suit alleging that the Twitter Announcement and 2017 Memorandum unconstitutionally discriminated against transgender individuals. The district court issued a
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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preliminary injunction against enforcement of the 2017 Memorandum, essentially holding that it was not a considered military judgment that warranted deference. In March 2018, the President revoked the 2017 Memorandum and authorized then-Secretary of Defense James Mattis to implement a policy, based on a 44-page report, which addressed a medical condition, gender dysphoria, rather than transgender status. Defendants then asked the district court to dissolve the 2017 preliminary injunction on the basis that the 2018 Policy was a new policy to be evaluated on its own merit. The district court struck the motion to dissolve.

In vacating the district court’s order striking defendants’ motion to dissolve the 2017 preliminary injunction, the panel held that the 2018 Policy was significantly different from the 2017 Memorandum in both its creation and its specific provisions and therefore defendant had made the requisite threshold showing of a significant change of facts. The panel therefore remanded for the district court to address whether the change warranted dissolution of the 2017 preliminary injunction.

In determining what level of scrutiny the district court should apply on remand, the panel concluded that the 2018 Policy on its face treated transgender persons differently than other persons, and consequently something more than rational basis but less than strict scrutiny applied to the military’s decisionmaking. The panel further concluded that on the current record, a presumption of deference was owed to the decisionmaking because the 2018 Policy appeared to have been the product of independent military judgment, and therefore the district court could not substitute its own evaluation of evidence for a reasonable evaluation by the military. The panel further stayed the 2017 preliminary

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injunction consistent with the Supreme Court’s order of January 22, 2019, which had stayed the preliminary injunction pending appeal in the Ninth Circuit. The panel stated that should the district court deny the motion to dissolve the injunction, the stay would remain in place throughout this Court’s disposition of any appeal by the Government.

The panel issued a writ of mandamus vacating the district court’s discovery order which had granted plaintiffs’ motion to compel discovery of government documents. The panel held that the executive privileges the presidential communications privilege and deliberative process privilege although not absolute, required careful consideration by the judiciary, even when they have not been clearly or persuasively raised by the government. The panel held that in its further considerations of plaintiffs’ discovery requests, the district court should give careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984).

COUNSEL
Appeal No. 18-35347
Brinton Lucas (argued), Counsel to the Assistant Attorney General; Tara S. Morrissey and Marleigh D. Dover, Appellate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

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Stephen R. Patton (argued), Daniel Siegfried, Vanessa Barsanti, Scott Lerner, and James F. Hurst, Kirkland & Ellis LLP, Chicago, Illinois; Peter C. Renn, Lambda Legal Defense and Education Fund Inc., Los Angeles, California; Tara L. Borelli, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia; Kara Ingelhart and Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Sasha Buchert and Diana Flynn, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Carl Charles, Lambda Legal Defense and Education Fund Inc., New York, New York; Peter E. Perkowski, OutServe-SLDN Inc., Los Angeles, California; Jason B. Sykes and Derek A. Newman, Newman Du Wors LLP, Seattle, Washington; for Plaintiffs-Appellees.

La Rond Baker (argued) and Colleen Melody, Assistant Attorneys General; Alan Copsey, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for Intervenor-Plaintiff-Appellee.

Maura Healey, Attorney General; Sara A. Colb, Kimberly A. Parr, and Genevieve C. Nadeau, Assistant Attorneys General; Office of Attorney General, Boston, Massachusetts; Xavier Becerra, Attorney General of California, Sacramento, California; George Jepsen, Attorney General of Connecticut, Hartford, Connecticut; Matthew P. Denn, Attorney General of Delaware, Wilmington, Delaware; Karl A. Racine, Attorney General of the District of Columbia, Washington, D.C.; Russell A. Suzuki, Attorney General of Hawaii, Honolulu, Hawaii; Lisa Madigan, Attorney General of Illinois, Chicago, Illinois; Tom Miller, Attorney General of Iowa, Des Moines, Iowa; Janet T. Mills, Attorney General of Maine, Augusta, Maine; Brian E. Frosh, Attorney General of

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Maryland; Baltimore, Maryland; Gurbir S. Grewal, Attorney General of New Jersey, Trenton, New Jersey; Hector Balderas, Attorney General of New Mexico, Santa Fe, New Mexico; Barbara D. Underwood, Attorney General of New York, New York, New York; Joshua H. Stein, Attorney General of North Carolina, Raleigh, North Carolina; Ellen F. Rosenblum, Attorney General of Oregon, Salem, Oregon; Josh Shapiro, Attorney General of Pennsylvania, Harrisburg, Pennsylvania; Peter F. Kilmartin, Attorney General of Rhode Island, Providence, Rhode Island; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia; Thomas J. Donovan, Jr., Attorney General of Vermont, Montpelier, Vermont, for Amici Curiae Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, and the District of Columbia.

Douglas C. Dreier and Stuart F. Delery, Gibson Dunn & Crutcher LLP, Washington, D.C., for Amicus Curiae The Trevor Project.

Sherrilyn A. Ifill, Director-Counsel, Janai S. Nelson, and Samuel Spital, NAACP Legal Defense & Educational Fund, Inc., New York, New York; Daniel S. Harawa, NAACP Legal Defense & Educational Fund Inc., Washington, D.C.; for Amicus Curiae NAACP Legal Defense & Educational Fund Inc.

Devi M. Rao and Scott B. Wilkens, Jenner & Block LLP, Washington, D.C.; Benjamin J. Brysacz, Jenner & Block LLP, Los Angeles, California; for Amici Curiae American Medical Association, American College of Physicians, and Nine Other Health Care Organizations.

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William B. Stafford and Abha Khanna, Perkins Coie LLP, Seattle, Washington; Ashwin P. Phatak, David H. Gans, Brianne J. Gorod, and Elizabeth B. Wydra, Constitutional Accountability Center, Washington, D.C.; for Amicus Curiae Constitutional Accountability Center.

Matthew S. Blumenthal and Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, Connecticut; Jake Ewart, Hillis Clark Martin & Peterson P.S., Seattle, Washington; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Retired Military Officers and Former National Security Officials.

Suzanne B. Goldberg, Sexuality and Gender Law Clinic, Columbia Law School, New York, New York; William C. Miller, Robert C. K. Boyd, and Cynthia Cook Robertson, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C., for Amici Curiae The Service Women’s Action Network, California Women Lawyers, Center for Reproductive Rights, Columbia Law School Sexuality and Gender Law Clinic, Connecticut Women’s Education and Legal Fund, Equal Rights Advocates, Legal Voice, Michigan Association for Justice, National Women’s Law Center, and the Women’s Bar Association of the District of Columbia.

John C. Quinn, Julie E. Fink, Roberta A. Kaplan, and Joshua Matz, Kaplan Hecker & Fink LLP, New York, New York, for Amici Curiae National Center for Transgender Equality, Southern Arizona Gender Alliance, The Trans Youth Equality Foundation, Transcend Legal, Transgender Allies Group, Transgender Legal Defense & Education Fund, and Transgender Resource Center of New Mexico.

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Susan Baker Manning, Morgan Lewis & Bockius LLP, Washington, D.C.; Corey Houmand, Morgan Lewis & Bockius LLP, Palo Alto, California; for Amici Curiae Vice Admiral Donald C. Arthur, USN (Ret.), former Surgeon General of the U.S. Navy; Major General Gale Pollock, USA (Ret.), former Acting Surgeon General of the U.S. Army, and Rear Admiral Alan M. Steinman, USPHS/USCG (Ret.), Former Director of Health and Safety of the U.S. Coast Guard.

Appeal No. 18-72159

Mark R. Freeman (argued), Brad Hinshelwood, Tara S. Morrissey, Marleigh D. Dover, and Mark B. Stern, Appellate Staff; Brinton Lucas, Counsel to the Assistant Attorney General; Hashim M. Mooppan, Deputy Assistant Attorney General; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Petitioners.

Stephen R. Patton (argued), Daniel Siegfried, Vanessa Barsanti, Scott Lerner, Jordan M. Heinz, and James F. Hurst, Kirkland & Ellis LLP, Chicago, Illinois; Peter C. Renn, Lambda Legal Defense and Education Fund Inc., Los Angeles, California; Tara L. Borelli, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia; Sasha Buchert and Diana Flynn, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Kara Ingelhart and Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Paul D. Castillo, Lambda Legal Defense and Education Fund Inc., Dallas, Texas; Peter E. Perkowski, OutServe-SLDN Inc., Los Angeles, California; Jason B. Sykes and Derek A. Newman, Newman Du Wors LLP, Seattle, Washington; for Real Parties in Interest.

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OPINION

PER CURIAM:

In July 2017, President Trump announced on Twitter that transgender individuals would not be allowed to serve in the military. This was followed by an August 2017 Memorandum implementing his announcement. Plaintiffs, transgender individuals who serve in the military or seek to do so, subsequently joined by the State of Washington, brought this lawsuit alleging that the 2017 Memorandum unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum, essentially holding that it was not a considered military judgment that warranted deference. Defendants, the President and certain federal agencies and officials, appealed the preliminary injunction but then voluntarily withdrew their appeal.

In the meantime, a panel appointed by then-Secretary of Defense James Mattis studied the issue of transgender individuals serving in the military. After the panel completed its work, the Defense Department produced a 44-page report. Based on this report, Secretary Mattis recommended to the President that he revoke the 2017 Memorandum so that he could adopt the report’s recommendation. The President followed the recommendation and on March 23, 2018, revoked his 2017 Memorandum and authorized Secretary Mattis to implement the policies he proposed based on the 44page report (these are sometimes referred to collectively as the “2018 Policy”).

Defendants then requested that the district court dissolve its preliminary injunction on the basis that the 2018 Policy

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was a new policy that had to be evaluated on its own merit. Defendants asserted that the 2018 Policy addressed a medical condition, gender dysphoria, rather than transgender status. The district court struck the motion to dissolve the injunction. Defendants filed this appeal from that order.

Proceedings continued in the district court. On April 19, 2018, the district court struck Defendants’ motion for a protective order precluding discovery pending the resolution of Defendants’ appeal. On July 27, 2018, the district court issued an order denying Defendants’ motion for a protective order of discovery directed at President Trump and granting Plaintiffs’ motion to compel the production of documents withheld solely under the deliberative process privilege within ten days. Defendants filed a petition for writ of mandamus with this Court challenging the discovery order. Subsequent orders have stayed further discovery until after we decide the petition.

We vacate the district court’s order striking the Defendants’ motion to dissolve the preliminary injunction and we remand to the district court to reconsider the motion. In light of the Supreme Court’s January 22, 2019 stay of the district court’s preliminary injunction, we stay the preliminary injunction through the district court’s further consideration of Defendants’ motion to dissolve the injunction. In addition, we issue a writ vacating the district court’s discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984).

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I

A. Background

Historically, transgender individuals could not serve openly in the military.1 In August 2014, the Department of Defense (“DoD”) eliminated its categorical ban on retention of transgender service members, enabling each branch of the military to reassess its own policies. In 2015, then-Secretary of Defense Ashton Carter created a working group to study the policy and readiness implications of allowing transgender individuals to serve in the military. Secretary Carter instructed the working group to “start with the presumption that transgender persons can serve openly without adverse impact on military effectiveness and readiness, unless and except where objective, practical impediments are identified.” As part of this review, the RAND National Defense Research

1 Although most people have a gender identity that matches their sex assigned at birth, this is not the case for transgender people, who identify as transgender because their gender identity does not match their birthassigned sex. In some instances, the discordance between one’s gender identity and birth-assigned sex can be associated with clinically significant distress, known as gender dysphoria. Living in a manner consistent with one’s gender identity is a key aspect of treatment for gender dysphoria. See Br. Amicus Curiae Am. Med. Ass’n et al. at 10–11. The process whereby transgender individuals come to live in a manner consistent with their gender identity, rather than their birth-assigned sex, is known as transition. Transition is “[t]he process that people go through as they change their gender expression and/or physical appearance (e.g., through hormones and/or surgery) to align with their gender identity. A transition may occur over a period of time, and may involve coming out to family, friends, co-workers, and others; changing one’s name and/or sex designation on legal documents (e.g., drivers’ licenses, birth certificates); and/or medical intervention.” Glossary of Gender and Transgender Terms, Fenway Health 4 (Jan. 2010 Revision).

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Institute was commissioned to conduct a study and issue a report of its findings (the “RAND Report”).2 The RAND Report concluded that health care for transgender service members would be a “very small part of the total health care” provided to service members and estimated the impact on the military’s readiness from accepting transgender individuals would be “negligible.”

Following the issuance of the RAND Report, Secretary Carter in June 2016 ordered the armed forces to adopt a new policy on military service by transgender individuals (the “Carter Policy”). The policy provided that “transgender individuals shall be allowed to serve [openly] in the military . . . while being subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming, deployability, and retention.”

On June 30, 2017, Secretary Mattis deferred accessing transgender applicants into the military until January 1, 2018.3 The announcement stated that the armed forces “will review their accession plans and provide input on the impact to the readiness and lethality of our forces.”

2 RAND was “to conduct a study to (1) identify the health care needs of the transgender population, transgender service members’ potential health care utilization rates, and the costs associated with extending health care coverage for transition-related treatments; (2) assess the potential readiness implications of allowing transgender service members to serve openly; and (3) review the experiences of foreign militaries that permit transgender service members to serve openly.”
3 Broadly speaking, “accession” refers to enlisting in the military.

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1. The July 26, 2017 Twitter Announcement

On July 26, 2017, President Trump announced over Twitter that the United States would no longer accept or allow transgender people to serve in the military:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

This is sometimes referred to as the “Twitter Announcement.”

2. The August 25, 2017 Presidential Memorandum

The Twitter Announcement was followed on August 25, 2017, by a Presidential Memorandum (the “2017 Memorandum,” and collectively with the Twitter Announcement, sometimes referred to as “the Ban”). The 2017 Memorandum noted that until June 2016, the DoD and the Department of Homeland Security (“DHS”) “generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals.” The 2017 Memorandum noted that Secretary Carter had revised those policies in 2016, but it expressed the view that Secretary Carter had “failed to identify a sufficient basis to conclude that terminating the

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Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”

The 2017 Memorandum “direct[ed] the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not . . . . hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.”

Specifically, the 2017 Memorandum directed the Departments to “maintain the [pre-2016] policy regarding accession of transgender individuals into military service,” and to “halt all use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel.”4 It directed the Secretary of Defense, in consultation with the Secretary of Homeland Security, to submit “a plan for implementing” the general policy and the specific directives of the 2017 Memorandum by February 21, 2018. It provided that, “[a]s part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address

4 The district court stated that the 2017 Memorandum authorized:
the discharge of openly transgender service members (the “Retention Directive”); prohibited the accession of openly transgender service members (the “Accession Directive”); and prohibited the use of [DoD] and [DHS] resources to fund “sex reassignment” surgical procedures (the “Medical Care Directive”).

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transgender individuals currently serving in the United States military,” but stated that, “[u]ntil the Secretary has made that determination, no action may be taken against such individuals under the policy [mandating a return to the pre2016 policy].”5

3. The Complaint

Following the Twitter Announcement and the 2017 Memorandum, a complaint was filed in the District Court for the Western District of Washington. Shortly thereafter, Plaintiffs filed an amended complaint, which is the most recent statement of Plaintiffs’ claims. The amended complaint alleges that the policy adopted through the Twitter Announcement and the 2017 Memorandum discriminates against transgender people regarding military service 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.

Plaintiffs included nine individuals, three organizations, and, as intervenor, the State of Washington. Plaintiff Ryan Karnoski, for example, is a transgender man who holds a master’s degree in social work, works as a mental health technician, comes from a family with a history of military service, and aspires to serve as an officer in the military. His desire to join the military came into sharper focus following the death of his cousin, who was killed in action in Afghanistan in 2009. He would like to join the military but

5 The 2017 Memorandum also provided that “[t]he Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted.”

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is prohibited from doing so because of his transgender status. Plaintiff Staff Sergeant Cathrine Schmid is a transgender woman who was diagnosed with gender dysphoria in 2013. She joined the Army in 2005, has received numerous awards and decorations for her service, and currently serves as a Signals Intelligence Analyst. She serves openly as a woman, and she is recognized and treated as female in all aspects of military life. In June 2017, Staff Sergeant Schmid submitted an application to become an Army warrant officer, but her application was placed on hold in light of her transgender status.

4. Secretary Mattis’ September 2017 Interim Guidance

On September 14, 2017, Secretary Mattis acknowledged receipt of the 2017 Memorandum and promised to “present the President with a plan to implement the policy and directives in the Presidential Memorandum” no later than February 21, 2018. Secretary Mattis also issued “Interim Guidance” to take effect immediately and remain in effect pending promulgation of a final policy. The Interim Guidance provided that the pre-2016 policies prohibiting the accession of transgender individuals into the military would remain in effect and that no new sex reassignment surgical procedures for military personnel would be permitted after March 22, 2018. It further provided that “no action may be taken to involuntarily separate or discharge an otherwise qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender status” during the interim period.

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5. Secretary Mattis’ Creation of a Panel to Develop the Implementation Plan

On the same day that Secretary Mattis issued the Interim Guidance, he directed “the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff to lead the [DoD] in developing an Implementation Plan on military service by transgender individuals, to effect the policy and directives in [the] Presidential Memorandum.” The Implementation Plan was to “establish the policy, standards and procedures for service by transgender individuals in the military, consistent with military readiness, lethality, deployability, budgetary constraints, and applicable law.” The Deputy Secretary of Defense and Vice Chairman of the Joint Chiefs of Staff were to be supported by “a panel of experts drawn from [the] DoD and [DHS],” consisting of “senior uniformed and civilian Defense Department and U.S. Coast Guard leaders” and “combat veterans.” Secretary Mattis directed this panel to “bring a comprehensive, holistic, and objective approach to study military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion, with due regard for budgetary constraints and consistent with applicable law.”

6. The December 11, 2017 Preliminary Injunction

On December 11, 2017, the district court issued a nationwide preliminary injunction enjoining Defendants from “taking any action relative to transgender people that is inconsistent with the status quo that existed prior to President

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Trump’s July 26, 2017 announcement.”6 Defendants filed an
appeal from the preliminary injunction, but subsequently moved to voluntarily dismiss their appeal.7

7. The February 2018 Defense Department Report

The panel created by Secretary Mattis met 13 times over a period of 90 days. Secretary Mattis reported that the panel:

met with and received input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical

6 Three other district courts also issued preliminary injunctions against the Ban. Doe 1 v. Trump, 275 F. Supp. 3d 167, 177 (D.D.C. 2017) (on October 30, 2017, preliminarily enjoining enforcement of the Accession and Retention Directives); Stone v. Trump, 280 F. Supp. 3d 747, 769 (D. Md. 2017) (on November 21, 2017, enjoining “the enforcement of the Retention, Accession, and Sex Reassignment Surgical Directives pending the final resolution of this lawsuit”); Stockman v. Trump, No. EDCV 17-1799, 2017 WL 9732572, at *16 (C.D. Cal. Dec. 22, 2017) (on December 22, 2017, enjoining the Accession, Retention, and Sex Reassignment Surgery Directives until the litigation is resolved).
The preliminary injunction in Doe 1 was vacated on January 4, 2019. Doe 2 v. Shanahan, 755 F.App’x 19 (D.C. Cir. 2019). On January 22, 2019, the Supreme Court stayed the preliminary injunctions issued in this case and in Stockman. Trump v. Karnoski, 139 S. Ct. 950 (2019); Trump v. Stockman, 139 S. Ct. 950 (2019).
7 Defendants’ appeal was docketed on December 15, 2017, along with an emergency motion for a stay pending appeal. On December 29, Defendants notified the Ninth Circuit that they were withdrawing the motion for stay pending appeal and voluntarily dismissing the appeal from the preliminary injunction. On December 30, we granted the motion for voluntary dismissal.

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professionals with experience in the care and treatment of individuals with gender dysphoria. The [p]anel also reviewed available information on gender dysphoria, the treatment of gender dysphoria, and the effects of currently serving individuals with gender dysphoria on military effectiveness, unit cohesion, and resources. Unlike previous reviews on military service by transgender individuals, the [p]anel’s analysis was informed by the Department’s own data obtained since the [Carter Policy] began to take effect last year.

In February 2018, the Department of Defense produced a 44page report based on the panel’s work (“the 2018 Report”).

8. Secretary Mattis’ February 22, 2018 Memorandum

Secretary Mattis forwarded the 2018 Report to the President accompanied by a memorandum dated February 22, 2018 (the “Mattis Memorandum”). Secretary Mattis, citing the panel’s work and his professional judgment, recommended that the President adopt the following policies:

* 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

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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.

Secretary Mattis further recommended that the President revoke the 2017 Memorandum in order to allow the adoption of these proposed policies.

9. The March 23, 2018 Presidential Memorandum

On March 23, 2018, the President accepted Secretary Mattis’s recommendation, revoked the 2017 Memorandum, and authorized the implementation of “any appropriate

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policies concerning military service by transgender individuals.”

B. The District Court’s April 13, 2018 Order

In the meantime, cross-motions for summary judgment and partial summary judgment had been filed in the district court. The 2018 Policy issued days before the motions were to be heard, and the district court immediately requested supplemental briefs from the parties. In addition, Defendants moved to dissolve the December 11, 2017 preliminary injunction on the ground that the 2017 Memorandum had been supplanted by the 2018 Policy.

On April 13, 2018, the district court granted in part and denied in part the cross-motions for summary judgment. The district court first determined that the 2018 Policy had not rendered Plaintiffs’ challenges moot. It observed that the burden of demonstrating mootness “is a heavy one,” citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). The district court found “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.”8

8 The district court rejected Defendants’ assertion that Plaintiffs lacked standing because the 2018 Policy had significantly changed the analysis. Specifically, the district court opined that even if each of the individual plaintiffs serving in the armed forces came within the reliance exception, they would still have standing because “the Ban already has denied them the opportunity to serve in the military on the same terms as others; has deprived them of dignity; and has subjected them to stigmatization.” The district court determined that Washington had standing because the Ban diminished the number of eligible members for

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Addressing Plaintiffs’ constitutional claims, the district court concluded that transgender individuals constitute a suspect class and “that the Ban must satisfy the most exacting level of scrutiny if it is to survive.” The district court identified four relevant factors for determining whether a classification was suspect or quasi-suspect: (1) whether as a historical matter the class was subject to discrimination; (2) whether the class has a defining characteristic that frequently bears a relationship to its ability to perform or its contribution to society; (3) whether the class exhibits obvious immutable or distinguishing characteristics that define it as a discrete group; and (4) whether the class is a minority or is politically powerless.9 The district court noted that “courts have consistently found that transgender people constitute, at minimum, a quasi-suspect class,” but applying these factors, the district court further concluded that transgender people constitute a suspect class.

Turning to the question of deference, the district court started with its previous determination that the Ban was not owed deference because it was not supported by any evidence of considered reason or deliberation. The district court noted, however, that because “the specifics of the Ban have been further defined in the 2018 Memorandum and the Implementation Plan, whether the Court owes deference to

the National Guard and threatened “Washington’s ability to (1) protect its residents and natural resources in times of emergency and (2) ‘assur[e] its residents that it will act’ to protect them from ‘the political, social and moral damage of discrimination.’”
9 The district court cited Bowen v. Gillard, 483 U.S. 587, 602 (1987), City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440–41 (1989), and Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012), aff’d on other grounds, 570 U.S. 744 (2013).

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the Ban presents a more complicated question.” The district court explained that: (1) any justification for the Ban must be “genuine, not hypothesized or invented post hoc in response to litigation” (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)); (2) the “complex[,] subtle and professional decisions as to the composition . . . and control of a military force are essentially professional military judgments” (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)); and (3) its “entry of a preliminary injunction was not intended to prevent the military from continuing to review the implications of open service by transgender people, nor to preclude it from ever modifying the Carter Policy.” The district court further noted that Defendants asserted that the 2018 Policy was the product of deliberative review and entitled to deference.

However, the district court declined to grant Defendants relief on the question of deference, noting that: (1) the 2018 Policy, including the 2018 Report, raised unresolved questions of fact; (2) the Implementation Plan was not disclosed until March 29, 2018; and (3) Plaintiffs had not had an opportunity to test or respond to the claims in the 2018 Policy. The district court concluded that on the present record, it “cannot determine whether the DoD’s deliberative process including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon is of the type to which Courts typically should defer.” Accordingly, the district court denied “summary judgment as to the level of deference due.”

The district court proceeded to hold that, for the same reasons it could not grant summary judgment as to the level of deference, it could not reach the merits of the constitutional violations alleged by Plaintiffs. It therefore

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denied their request for summary judgment on their equal protection, due process, and First Amendment claims.

The district court also addressed Defendants’ contention that the district court was without jurisdiction to impose injunctive or declaratory relief against the President in his official capacity. The district court granted Defendants’ motion for partial summary judgment with regard to injunctive relief and denied it with regard to declaratory relief. It opined that this was an appropriate instance for declaratory relief.10

The district court did not rule on the merits of Defendants’ motion to dissolve the preliminary injunction, and instead ordered the motion stricken. It stated:

The preliminary injunction previously entered otherwise remains in full force and effect. Defendants (with the exception of President Trump), their officers, agents, servants, employees, and attorneys, and any other person or entity subject to their control or acting directly or indirectly in concert or participation with Defendants are enjoined

10 The district court cited Clinton v. City of New York, 524 U.S. 417, 425 n.9 (1998) (affirming entry of declaratory judgment against President Clinton stating that the Line Item Veto Act was unconstitutional), Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017) (vacating injunctive relief against President Trump, but not dismissing him in suit for declaratory relief), vacated as moot, 138 S. Ct. 377 (2017), and National Treasury Employees Union v. Nixon, 492 F.2d 587, 609 (D.C. Cir. 1974) (noting that “no immunity established under any case known to this Court bars every suit against the President for injunctive, declaratory or mandamus relief”).

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from taking any action relative to transgender people that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement.

The order directed the parties to proceed with discovery and to prepare for trial. Defendants appeal from the district court’s order striking their motion to dissolve the preliminary injunction.11

C. The District Court’s July 27, 2018 Discovery Order

In December 2017, Plaintiffs served Defendants with their first set of interrogatories. For example, they requested that Defendants “[i]dentify and describe each of the governmental purposes or interests that you contend will be advanced by the Policy,” and “[i]dentify all individuals with whom President Trump has discussed or corresponded with regarding the United States’ past, present, or potential future governmental policies on transgender military service or related healthcare, and the dates of each discussion, from November 9, 2016 to the present.” Plaintiffs also served Defendants with requests for the production of documents.

11 Defendants filed a motion in the Ninth Circuit to stay the preliminary injunction pending appeal. A three-judge motions panel of the Ninth Circuit denied the motion, noting that “a stay of the preliminary injunction would upend, rather than preserve, the status quo.” On January 22, 2019, the Supreme Court granted a stay of the district court’s preliminary injunction “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” Trump v. Karnoski, 139 S. Ct. 950 (2019).

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Defendants filed objections to the interrogatories and the requests for production. Among other things, Defendants’ objected to the interrogatories to the extent that they sought “communications or information protected by the deliberative process privilege; [and] . . . communications or information protected by the presidential communications privilege.” Defendants argued that in Cheney, 542 U.S. at 385, the Supreme Court “made clear that discovery directed to the President in civil litigation raises significant separation of powers concerns and should be strictly circumscribed.” In response, Plaintiffs argued that the deliberative process privilege and presidential communications privilege did not bar discovery.

Plaintiffs filed a motion to compel discovery charging that Defendants’ initial disclosures were “manifestly inadequate.” After briefing, on March 4, 2018, the district court granted Plaintiffs’ motion to compel and found that Defendants’ initial disclosures did not provide “any actual information concerning Defendants’ claims or defenses.”

On March 23, 2018, Defendants filed another motion for a protective order asserting that: (1) the challenge to the 2017 Memorandum was moot because the President had withdrawn the 2017 Memorandum; (2) “[f]urther litigation should be confined to the administrative record provided by the agency”; and (3) “[a] protective order would serve the interests of judicial economy because the Court could avoid addressing constitutional separation-of-powers issues.”

On April 19, 2018, the district court denied Defendants’ motion for a protective order. The district court found that, in light of its April 13, 2018 order, see supra Section I (B), a protective order was not warranted. The district court stated

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that the case was not moot, discovery related to the Twitter Announcement was not irrelevant, and the 2018 Policy was not a new policy, “but rather a plan to implement, with few exceptions, the directives of the 2017 Memorandum.” The district court held that there was no reason for discovery to be confined to the administrative record because Plaintiffs were not challenging the 2018 Policy under the Administrative Procedure Act, but instead raised direct constitutional claims. The district court stated that “Defendants have not demonstrated that precluding discovery will serve the interest of judicial economy in any way.” The order concluded:

To the extent that Defendants intend to claim Executive privilege, they must “expressly make the claim” and provide a privilege log “describ[ing] the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(i) (ii).

In response to Plaintiffs’ interrogatories and requests for production, Defendants produced a number of privilege logs, but asserted the deliberative process privilege as the sole basis for withholding or redacting approximately 15,000 documents.

On May 10, 2018, Plaintiffs filed a motion to compel discovery of documents withheld solely under the deliberative process privilege, advancing four arguments. First, they argued that the deliberative process privilege was fashioned to prevent discovery into governmental

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deliberations when the governmental decisionmaking process is collateral to a lawsuit, but does not apply where, as here, “plaintiffs challenge the constitutionality of a government decision and allege animus or discriminatory intent,” citing In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998). Plaintiffs asserted that Defendants’ deliberations go to the heart of this lawsuit. Second, Plaintiffs contended that Defendants waived any privilege by putting their deliberative process at issue i.e., “by asserting that the Ban passes constitutional review because special deference is owed to their military judgment.” Third, Plaintiffs argued that even if the privilege applied, their need for discovery prevailed under the applicable balancing test.12 Fourth, Plaintiffs argued that Defendants withheld materials that fell outside the scope of the privilege. In particular, Plaintiffs asserted that the deliberative process privilege (a) only applies to documents that are “predecisional” that is “they have been generated prior to an agency’s adoption of a policy or decision”; (b) “only applies to documents that are ‘deliberative’ in that they reflect the give-and-take of a deliberative decision-making process”; and (c) “does not

12 Plaintiffs, citing FTC v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984), and North Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003), listed eight considerations that the court should balance: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions; (5) the interest of the litigant, and ultimately society, in accurate judicial fact finding; (6) the seriousness of the litigation and the issues involved; (7) the presence of issues concerning alleged governmental misconduct; and (8) the federal interest in the enforcement of federal law.

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extend to purely factual information or expert opinion and scientific conclusions regarding facts.”

Defendants opposed the motion to compel, arguing that Plaintiffs challenged only the 2017 Memorandum and did not amend their complaint to challenge the 2018 Policy. Specifically, Defendants argued that the deliberative process privilege protects the government’s decision-making process by shielding documents “reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (quoting Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)); Defendants asserted that the deliberative process privilege applies to this case and that the Ninth Circuit has applied the balancing test set forth in Warner, 742 F.2d 1156. Defendants further contended that events occurring after the 2017 Twitter Announcement remained subject to the deliberative process privilege. They noted that the 2017 Memorandum contemplated further research, further determinations by the Secretary of Defense, and further recommendations to the President.

The parties conferred over the discovery requests, but were unable to resolve their differences. On May 21, 2018, Defendants filed another motion for a protective order, arguing that: (1) discovery served on the President should be precluded on separation-of-powers grounds; (2) discovery related to the President’s communications and deliberations must be strictly circumscribed; and (3) the President should not be required to formally invoke his privileges until the court rules that Plaintiffs have met an initial heavy burden. Plaintiffs filed an opposition to the motion for a protective

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order contending that Defendants were attempting “to transform the qualified presidential communications privilege into an absolute bar.”

On July 27, 2018, the district court granted Plaintiffs’ motion to compel and denied Defendants’ motion for a protective order.13 Addressing the deliberative process privilege, the district court, citing Warner, 742 F.2d at 1161, stated that for the privilege to apply, a document must be (1) predecisional, meaning that it was generated before the adoption of an agency’s policy or decision, and (2) deliberative, meaning that it contains opinions, recommendations, or advice about agency policies. The district court noted that the deliberative process privilege is not absolute, and that, applying the standard set forth in Warner, the question was whether Plaintiffs’ “need for the materials and the need for accurate fact-finding override the government’s interest in nondisclosure.” Id. The district court found that the deliberative process privilege should be narrowly construed and that Defendants did not meet their burden of establishing its applicability.

13 Before addressing the merits of the discovery motions, the district court considered the impact of Trump v. Hawaii, 138 S. Ct. 2392 (2018). The district court rejected Defendants’ claim that the reasoning in that case precluded discovery directed at the President here. The district court reasoned first that Hawaii involved an entirely different standard of scrutiny and unlike “the policy in Hawaii, the [district court] need not ‘look behind the face’ of the Ban, as the Ban is facially discriminatory.” Second, the district court noted that the majority in Hawaii “repeatedly emphasized that the exclusion policy was formulated following a ‘worldwide, multi-agency review’” whereas in this case Defendants “have provided no information whatsoever concerning the process by which the Ban was formulated.” Further, the district court noted that Hawaii “does not purport to address the scope of discovery or the application of any privilege.”

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The district court concluded that the evidence sought was “undoubtedly relevant.” The district court held that Defendants could not maintain that deference was owed to the Ban because it was a considered decision, while at the same time withhold all information concerning the alleged deliberations leading to that decision. The district court also found that because Defendants possessed all the evidence concerning their deliberations, the evidence was not otherwise available to Plaintiffs. The district court further held that Defendants could not avoid disclosure based on speculation that discovery would chill future policy decisions; rather, Defendants had to “identify specific, credible risks which cannot be mitigated by the existing protective order in this case” and that outweigh the court’s “need to perform the ‘searching judicial inquiry’ that strict scrutiny requires.”

Addressing Defendants’ motion for a protective order, the district court recognized that Cheney, 542 U.S. at 387, held that discovery directed at the President involves special considerations. But the district court noted that the President was not immune from civil discovery and that courts have permitted discovery directed at the President where “he is a party or has information relevant to the issues in dispute,” citing United States v. Nixon, 418 U.S. 683, 706 (1974), and Clinton, 520 U.S. at 704. The district court indicated that the President could invoke the privilege when asked to produce documents, and that if he does so, the documents are presumed privileged. However, this privilege is not absolute, and if a court finds the privilege is overcome by an adequate showing of need, the court may review the documents in camera.

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The district court then stated:

To date, President Trump and his advisors have failed to invoke the presidential communications privilege, to respond to a single discovery request, or to produce a privilege log identifying the documents, communications, and other materials they have withheld. While Defendants claim they need not do so until Plaintiffs “exhaust other sources of non-privileged discovery, meet a heavy, initial burden of establishing a heightened, particularized need for the specific information or documents sought, and at a minimum substantially narrow any requests directed at presidential deliberations,” the Court finds no support for this claim. To the extent the President intends to invoke the privilege, the Court already ordered that he “‘expressly make the claim’ and provide a privilege log ‘describ[ing] the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.’” Only then can the Court evaluate whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.

Accordingly, the district court granted the motion to compel and denied the motion for a protective order. Paragraph 3 of the order stated:

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The Court notes that the government privilege logs it has reviewed to date are deficient and do not comply with Federal Rule of Civil Procedure 26(b)(5)(A)(i) (ii). Privilege logs must provide sufficient information to assess the claimed privilege and to this end must (a) identify individual author(s) and recipient(s); and (b) include specific, non-boilerplate privilege descriptions on a document-bydocument basis. To the extent they have not already done so, the Court ORDERS Defendants to produce revised privilege logs within 10 days of the date of this Order.

II

A. Legal Standard Governing Dissolution of a Preliminary Injunction

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We review an order regarding preliminary injunctive relief for abuse of discretion, but review any underlying issues of law de novo. Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1126 n.7 (9th Cir. 2005).

Pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction to review an order “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” See Gon v. First State Ins. Co., 871 F.2d 863,

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865 (9th Cir. 1989). However, we have held “that a party that has failed to appeal from an injunction cannot regain its lost opportunity simply by making a motion to modify or dissolve the injunction, having the motion denied, and appealing the denial. In such a case, the appeal is limited to the propriety of the denial, and does not extend to the propriety of the original injunction itself.” Id. at 866.

More specifically, we have held that in “reviewing denials of motions to dissolve injunctions, we do not consider the propriety of the underlying order, but limit our review to the new material presented with respect to the motion to dissolve.” Sharp v. Weston, 233 F.3d 1166, 1169 70 (9th Cir. 2000). “A party seeking modification or dissolution of an injunction bears the burden of establishing that a significant change in facts or law warrants revision or dissolution of the injunction.” Id. at 1170; see also Alto v. Black, 738 F.3d 1111, 1120 (9th Cir. 2013).

B. We vacate the district court’s striking of Defendants’ motion to dissolve the preliminary injunction and remand for the district court to consider the merits of the motion

Our inquiry under Sharp has two parts. We must first address whether the party seeking dissolution of the injunction has established “a significant change in facts or law.” Sharp, 233 F.3d at 1170. If this showing has been made, the court must then address whether this change “warrants . . . dissolution of the injunction.” See id. This latter inquiry should be guided by the same criteria that

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govern the issuance of a preliminary injunction.14 In seeking dissolution of a preliminary injunction, however, the burden with respect to these criteria is on the party seeking dissolution. See Alto, 738 F.3d at 1120.

1. Defendants have demonstrated a significant change in facts

Defendants have made the requisite threshold showing of a significant change in facts. Plaintiffs assert that the 2018 Policy, like the 2017 Memorandum, broadly prohibits military service by transgender persons. Beyond the narrow reliance exception, transgender individuals who wish to serve openly in their gender identity are altogether barred from service. Even individuals who are willing to serve in the gender assigned to them at birth are barred from accession if they have a history or diagnosis of gender dysphoria, unless

14 Under those criteria:
Plaintiffs seeking a preliminary injunction must establish that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit weighs these factors on a sliding scale, such that where there are only “serious questions going to the merits” – that is, less than a “likelihood of success” on the merits – a preliminary injunction may still issue so long as “the balance of hardships tips sharply in the plaintiff’s favor” and the other two factors are satisfied. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013).
Short v. Brown, 893 F.3d 671, 675 (9th Cir. 2018).

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they can “demonstrate 36 consecutive months of stability i.e., absence of gender dysphoria immediately preceding their application.” For service members who do not qualify under the reliance exception, transition-related medical care is also prohibited. Those who have undergone transition are disqualified from service, and those who have not transitioned are disqualified unless they suppress their gender identity and serve in their birth-assigned sex. Plaintiffs conclude that the new policy continues to broadly exclude transgender persons from service in the military.15

But regardless of its overall effect, the 2018 Policy is significantly different from the 2017 Memorandum in both its creation and its specific provisions. Plaintiffs asserted that no deference was due to the 2017 Memorandum because that policy was not the product of military judgment i.e. because “President Trump did not rely upon the professional judgment of military authorities before announcing the [policy].” The 2018 Policy, however, involved a study by a panel of military experts that met 13 times over a period of 90 days, a 44-page report issued by the Department of Defense, and a substantive memorandum issued by Secretary Mattis. Moreover, there are significant substantive differences between the 2017 Memorandum and the 2018 Policy. For example, the 2018 Policy includes a reliance exception for service members

15 Defendants argue 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.

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diagnosed with gender dysphoria after January 1, 2018 that the 2017 Policy lacked.

We hold that Defendants have made a sufficient showing of significant change to require the district court to address whether the change warrants dissolution of the preliminary injunction. We remand for the district court to perform this analysis.

2. Factors for the district court to consider in evaluating whether the significant change warrants dissolution of the preliminary injunction

Among the factors to be considered on remand are 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. These two factors, although conceptually distinct, are here intertwined as we are asked to consider the propriety of a military decision concerning transgender persons. The district court concluded that the 2018 Policy had to satisfy “strict scrutiny if it is to survive.” Our view is that existing law does not support the application of a strict scrutiny standard of review in this context.

In United States v. Virginia, 518 U.S. 515, 532 33 (1996), the Supreme Court held that for “cases of official classification based on gender . . . the reviewing court must determine whether the proffered justification is ‘exceedingly persuasive.’” The justification “must be genuine, not hypothesized or invented post hoc in response to litigation,” and “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and

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females.” Id. at 533. The Court further commented that “[p]hysical differences between men and women, however, are enduring,” and that these differences should “remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” Id. Although the Supreme Court’s opinion in Virginia requires something more than rational basis review, it does not require strict scrutiny.

We wrestled with defining the appropriate level of judicial scrutiny of a military decision based on sexual orientation in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008).16 In reviewing the military’s “Don’t Ask, Don’t Tell” (“DADT”) policy for gay and lesbian service members, we adopted a three-factor test based on the Supreme Court’s opinion in Sell v. United States, 539 U.S. 166, 179-81 (2003). We held that:

when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence [v. Texas, 539 U.S. 558 (2003)], the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that

16 The Supreme Court in Gilligan v. Morgan, 413 U.S. 1, 10 (1973), stated that “[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments.” The Court further stated that such decisions are “subject always to civilian control of the Legislative and Executive Branches,” and that courts should “give appropriate weight to this separation of powers.” Id. at 10–11.

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interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.

Witt, 527 F.3d at 819.

However, we held that this “heightened scrutiny” approach “is as-applied rather than facial.” Id. We cited the Supreme Court’s admonishment in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 447 (1985), that an as-applied approach “is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.” Witt, 527 F.3d at 819. We explained that we had to “determine not whether DADT has some hypothetical posthoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt.” Id.

Here, in concluding that a strict scrutiny standard of review applied, the district court reasonably applied the factors ordinarily used to determine whether a classification affects a suspect or quasi-suspect class. See Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (listing these factors), aff’d on other grounds, 570 U.S. 744 (2013).17

17 These factors include:
A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable or distinguishing

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Nonetheless, in light of the analysis in Virginia and Witt, the district court should apply a standard of review that is more than rational basis but less than strict scrutiny.

Defendants assert that, because this case involves judicial review of military decisionmaking, mere rational basis review applies. This contention, however, is foreclosed by our decision in Witt. See Witt, 527 F.3d at 821; see also Rostker v. Goldberg, 453 U.S. 57, 71 (1981) (explaining that the Court’s decision in Schlesinger v. Ballard, 419 U.S. 498 (1975), “did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance”). Under Witt, deference informs the application of intermediate scrutiny, but it does not displace intermediate scrutiny and replace it with rational basis review.

Defendants alternatively argue that rational basis review applies because the classifications challenged here are based on “gender dysphoria” and “gender transition” rather than transgender status. This too is unpersuasive. On its face, the 2018 Policy regulates on the basis of transgender status. It states that “Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service,

characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless.
Windsor, 699 F.3d at 181 (citations, alteration, and internal quotation marks omitted).

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except under [certain] limited circumstances,” that “Transgender persons who require or have undergone gender transition are disqualified from military service,” and that “Transgender persons without a history or diagnosis of gender dysphoria . . . may serve . . . in their biological sex.” We conclude that the 2018 Policy on its face treats transgender persons differently than other persons, and consequently something more than rational basis but less than strict scrutiny applies.18

We also reject Plaintiffs’ contention that no deference is owed here. Plaintiffs first argue that deference is not owed to the 2017 Memorandum because that policy was not the product of military judgment. Next, they argue that deference is not owed to the 2018 Policy because that policy simply implemented the 2017 Memorandum. According to Plaintiffs, the 2018 Policy “is not a new policy at all, but rather the expected and mandated outcome of President Trump’s directives.” As such, it could not have constituted a meaningful exercise of military judgment, because “whatever independent judgment the military brought to bear,

18 Because the 2018 Policy discriminates on the basis of transgender status on its face, we need not address whether it constitutes discrimination against transgender persons on the alternative ground that gender dysphoria and transition are closely correlated with being transgender. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 689 (2010) (citing Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.” (alteration in original))); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993).

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it was limited to determining how to implement the [2017 Memorandum] not whether to do so.” Plaintiffs argue the deliberative process that led to the 2018 Policy was not an exercise of independent military judgment because the scope of this review was “constrained by President Trump’s directives,” the officials who conducted the review were not “free to disagree with President Trump,” and the review’s ultimate recommendations, having been “dictated” by the President, were “preordained.”

Although Plaintiffs on remand may present additional evidence to support this theory, 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. It is true that the 2017 Memorandum directed the Secretary of Defense to develop “a plan for implementing both the general policy . . . and the specific directives set forth in [that] memorandum.” It is also true that Secretary Mattis subsequently created a panel to develop such a plan. But the 2017 Memorandum also provided that the Secretary of Defense “may advise [the President] at any time, in writing, that a change to this policy is warranted,” and Secretary Mattis, accordingly, 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.” The panel, in turn, appears to have construed its mandate broadly.19 The

19 According to the Report:
To fulfill its mandate, the Panel addressed three questions:

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policies ultimately recommended by Secretary Mattis were somewhat different from the President’s earlier policy and directives, and the President adopted the Secretary’s recommendations.

In short, the district court must apply appropriate military deference to its evaluation of the 2018 Policy. See Witt, 527 F.3d at 821. On the current record, a presumption of deference is owed, because the 2018 Policy appears to have been the product of independent military judgment. In applying intermediate scrutiny on remand, the district court may not substitute its “own evaluation of evidence for a reasonable evaluation” by the military. Rostker, 453 U.S. at 68. Of course, “deference does not mean abdication.” Witt, 527 F.3d at 821 (quoting Rostker, 453 U.S. at 70). Defendants bear the burden of establishing that they reasonably determined the policy “significantly furthers” the government’s important interests, and that is not a trivial burden. See id.

Because the 2018 Policy is a significant change from the 2017 Memorandum, the district court on remand must apply the “traditional” standard for injunctive relief to determine whether dissolution of the injunction is warranted,

! Should the Department of Defense access transgender individuals?
! Should the Department allow transgender individuals to transition gender while serving, and if so, what treatment should be authorized?
! How should the Department address transgender individuals who are currently serving?

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addressing: (1) whether Plaintiffs have made a sufficient showing of a likelihood of success on the merits; (2) whether Plaintiffs will be irreparably harmed absent interim relief; (3) whether the issuance of an injunction will substantially injure other parties; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009); Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017); see also City & County of San Francisco v. Trump, 897 F.3d 1225, 1243 (9th Cir. 2018).

C. We extend the Supreme Court’s stay of the preliminary injunction

On January 22, 2019, the Supreme Court issued an order staying the district court’s preliminary injunction, pending Defendants’ appeal in this court. As we vacate the district court’s striking of Defendants’ motion to dissolve the preliminary injunction and direct the district court to consider the motion on its merits, we now, consistent with the Supreme Court’s order, stay the preliminary injunction through the district court’s further consideration of the motion to dissolve.

III

A. Standard of Review Governing Mandamus Relief

Our consideration of Defendants’ petition for a writ of mandamus is guided by the Supreme Court’s opinion in Cheney, 542 U.S. 367. There, the Court held that three conditions must be satisfied before a writ may issue: (1) the petitioner must have no other adequate means to attain the relief desired; (2) the petitioner must show that the right to

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the writ is clear and indisputable; and (3) “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. at 380 81. These conditions are consistent with the five guidelines we established in Bauman v. U.S. District Court, 557 F.2d 650, 654 55 (9th Cir. 1977), to determine whether mandamus is appropriate in a given case: (1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems or issues of first impression. See In re Bundy, 840 F.3d 1034, 1041 n.5 (9th Cir. 2016); In re United States, 791 F.3d 945, 955 n.7 (9th Cir. 2015).

B. We vacate the district court’s discovery order

The unique features of the executive privileges at issue in this litigation the presidential communications privilege and the deliberative process privilege suggest that there is no other adequate means of relief. The two privileges were explained in Loving v. Department of Defense, 550 F.3d 32 (D.C. Cir. 2008):

The presidential communications privilege, a “presumptive privilege for [p]residential communications,” United States v. Nixon, 418 U.S. 683, 708 (1974), preserves the President’s ability to obtain candid and

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informed opinions from his advisors and to make decisions confidentially, see Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1112 (D.C. Cir. 2004). As such, the privilege protects “communications directly involving and documents actually viewed by the President,” as well as documents “solicited and received” by the President or his “immediate White House advisers [with] . . . broad and significant responsibility for investigating and formulating the advice to be given the President.” Id. at 1114. The privilege covers documents reflecting “presidential decisionmaking and deliberations,” regardless of whether the documents are predecisional or not, and it covers the documents in their entirety.20

Id. at 37 38 (alterations in original). Distinctly, the deliberative process privilege:

protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted). For the deliberative process privilege to apply, the material must be “predecisional” and “deliberative.” In re Sealed Case, 121 F.3d

20 Here, and in future quotes, the parallel citations have been omitted.

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[729,] 737 [(D.C. Cir. 1997)]. Unlike the presidential communications privilege, the deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must. Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993).

Id. at 38.

Both forms of executive privilege are at issue in this litigation. The initial premise of the suit was that the President’s Twitter Announcement and the 2017 Memorandum were not considered military decisions that warranted judicial deference. Although the focus has been shifted by the 2018 Policy, 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. Thus, the litigation may require the district court to consider the basis of the President’s initial decision, as well as the 2018 Policy, and may implicate both the presidential communications and the deliberative process privileges.

1. The Presidential Communications Privilege

The district court gave insufficient weight to the Supreme Court’s explanation in Cheney, that:

[e]xecutive privilege is an extraordinary assertion of power “not to be lightly

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invoked.” United States v. Reynolds, 345 U.S. 1, 7 (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These “occasion[s] for constitutional confrontation between the two branches” should be avoided whenever possible. United States v. Nixon, [418 U.S.] at 692.

542 U.S. at 389 90 (second alteration in original).21 The Supreme Court explained that “Nixon does not leave [courts with] the sole option of inviting the Executive Branch to invoke executive privilege while remaining otherwise powerless to modify a party’s overly broad discovery requests.” Id. at 389. Rather, courts are urged to “explore

21 The term “executive privilege” is sometimes used to refer to the presidential communications privilege, see, e.g., In re Lindsey, 158 F.3d 1263, 1266–67 (D.C. Cir. 1998), and is sometimes “used to refer to a wide variety of evidentiary and substantive privileges that courts accord the executive branch,” In re Sealed Case, 121 F.3d at 735 n.2. We use the latter formulation, but Cheney, which involved discovery directed “to the Vice President and other senior Government officials who served . . . to give advice and make recommendations to the President,” appeared to use the former. 542 U.S. at 385.

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other avenues, short of forcing the Executive to invoke privilege, when they are asked to enforce against the Executive Branch unnecessarily broad subpoenas.” Id. at 390. The Supreme Court noted that the lower court had “labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation-of-powers objections.” Id. at 391. Similarly here, the district court appears to have “labored under the mistaken assumption” 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.

In its order, the district court focused on the deliberative process privilege and commented that Defendants “have failed to invoke the presidential communications privilege, to respond to a single discovery request, or to produce a privilege log identifying the documents, communications, and other materials they have withheld.” But while Defendants’ 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.” Id. at 390.

On remand, the district court should give due deference to the presidential communications privilege, but also recognize that it is not absolute. The D.C. Circuit in In re Sealed Case commented:

A party seeking to overcome a claim of presidential privilege must demonstrate: first, that each discrete group of the subpoenaed

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materials likely contains important evidence; and second, that this evidence is not available with due diligence elsewhere. The first component, likelihood of containing important evidence, means that the evidence sought must be directly relevant to issues that are expected to be central to the trial. . . . The second component, unavailability, reflects Nixon’s insistence that privileged presidential communications should not be treated as just another source of information.

121 U.S. at 754 55.

Here, the district court stated it would apply this test after the President had invoked the privilege, which is consistent with how the test was applied in In re Sealed Case. See id. at 744 n.16. But, in light of the Supreme Court’s subsequent opinion in Cheney, we hold that Plaintiffs must 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.” Id. at 754.

We note, however, that this standard does not require Plaintiffs to pinpoint with precision what materials they are seeking. See Dellums v. Powell, 561 F.2d 242, 248 49 (D.C. Cir. 1977) (holding plaintiffs overcame the presumption of the privilege despite not definitively establishing that conversations they sought actually took place); United States v. Poindexter, 727 F. Supp. 1501, 1510 (D.D.C. 1989) (“[The Court] will not place the defendant in the impossible position of having to provide exquisite specificity as a prerequisite to

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enforcement of the subpoena by the Court, while he is denied access to the documents in question, thus making it impossible for him to be more specific.”). So long as Plaintiffs’ discovery requests are narrowly tailored to seek evidence that is directly relevant to central issues in the litigation and is not available with due diligence elsewhere, Plaintiffs have met their preliminary burden.

To the extent that Plaintiffs are able to meet this heightened standard, 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, Dellums v. Powell, 642 F.2d 1351, 1363 (D.C. Cir. 1980), 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,” In re Sealed Case, 121 F.3d at 759; see also Dellums, 642 F.2d at 1364.

2. The Deliberative Process Privilege

The deliberative process privilege, although not as robust as the presidential communications privilege, still commands judicial consideration. We have held that “[a] litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.” Warner, 742 F.2d at 1161. As the district court here correctly recognized, we balance four factors in determining whether this exception to the deliberative process privilege is met: “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

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disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” Id.

In balancing these factors, we note that the second and third criteria favor Plaintiffs. The evidence sought is primarily, if not exclusively, under Defendants’ control, and the government the Executive is a party to and the focus of the litigation.

However, 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. For example, is information concerning the basis for the 2017 Memorandum still relevant now that the 2018 Policy has been adopted?22 Although we do not mandate any particular course of action, the district court may wish to authorize discovery in stages when the current record is insufficient to establish relevance. Also, 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. These are among the concerns that the district court and the parties should consider in balancing the deliberative process privilege with Plaintiffs’ need for certain information.

22 We note that in Trump v. Hawaii, 138 S. Ct. 2392, 2409 (2018), the Court held that “[t]he 12-page Proclamation—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions”—was sufficient to allow for judicial review.

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Moreover, in balancing the Warner factors, the district court should consider classes of documents separately when appropriate. It is not clear the district court did so in this case. The district court appears to have conducted a single deliberative process privilege analysis covering all withheld documents, rather than considering whether the analysis should apply differently to certain categories. If Defendants persuasively argue that a more granular analysis would be proper, the district court should undertake it. Documents involving the most senior executive branch officials, for example, may require greater deference. (They may, of course, also be the most relevant.)

3. Conclusion

Although we hold that the district court did not adequately consider the weighty issues implicated by Plaintiffs’ discovery requests, we appreciate that Defendants’ responses to those requests may not have helped the district court in performing its difficult task. We express no opinion as to whether Defendants may be compelled to disclose any particular evidence to Plaintiffs or even to the district court for in camera review. We do expect, however, 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.

We issue the writ and vacate the district court’s discovery orders because the district court did not fulfill its obligation “to explore other avenues, short of forcing the Executive to invoke privilege.” Cheney, 542 U.S. at 390. In its further considerations of Plaintiffs’ discovery requests, the district court should apply the standards set forth in Cheney, 542 U.S.

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367, In re Sealed Case, 121 F.3d 729, Warner, 742 F.2d 1156, and the other cases discussed in this opinion.

IV

We conclude that in striking the motion to dissolve the preliminary injunction, the district court failed to give the 2018 Policy the thorough consideration due. Regardless of the merits of the 2017 Memorandum, the reasonableness of the 2018 Policy must be evaluated on the record supporting that decision and with the appropriate deference due to a proffered military decision. Accordingly, we vacate the district court’s striking of Defendants’ motion to dissolve the preliminary injunction and remand the matter to the district court for reconsideration. Consistent with the Supreme Court’s January 22, 2019 order, we stay the district court’s December 11, 2017 preliminary injunction through the district court’s reconsideration of Defendants’ motion. If the district court denies the motion to dissolve the injunction, the stay shall remain in place throughout this court’s disposition of any appeal by the Government.

We also issue the writ of mandamus and vacate the district court’s discovery order, so that the district court may reconsider Plaintiffs’ discovery requests giving full consideration to the Executive’s Article II prerogatives. See Cheney, 542 U.S. at 389. The executive privileges the presidential communications privilege and deliberative process privilege although not absolute, require careful consideration by the judiciary, even when they have not been clearly or persuasively raised by the government. Furthermore, in Cheney, the Supreme Court rejected the notion that the Executive must first assert the presidential

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communications privilege to narrow the subpoenas, and advised that it was “undesirable as a matter of constitutional and public policy to compel a President to make his decision on privilege with respect to a large array of documents.” Id. at 390. The district court’s future considerations of Plaintiffs’ discovery requests should be guided by the Supreme Court’s opinion in Cheney.

The district court’s striking of Defendants’ motion to dissolve the preliminary injunction is vacated, the preliminary injunction is stayed pending the district court’s reconsideration of that motion, Defendants’ petition for writ of mandamus is granted, the district court’s July 27, 2018 discovery order is vacated, and this case is remanded to the district court.23

Following the Supreme Court’s January 22, 2019 decision, Plaintiffs informed this court that they no longer oppose the remedy of vacatur of the preliminary injunction and remand sought by Defendants. Plaintiffs asked this court to “enter a summary order vacating the preliminary injunction and remanding to the district court for further proceedings.” In response, Defendants urged us to “issue a reasoned decision vacating the district court’s preliminary injunction.” We have adopted neither of these paths. Our decision remands for the district court to consider the merits of Defendants’ motion to dissolve the preliminary injunction.

23 The parties and amici have raised a number of other issues which are arguably before us, but we decline to reach them in favor of further proceedings in the district court leading to the trial of Plaintiffs’ contentions.

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If Plaintiffs no longer wish to pursue a preliminary injunction, they may so advise the district court on remand.

18-35347 - The District Court’s order striking motion to dismiss is

VACATED and REMANDED.

18-72159 - Writ GRANTED vacating District Court's discovery order and
REMANDED.
Each party shall bear its own costs of appeal.

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United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment •

This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing): • A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. • Do not file a petition for panel rehearing merely to reargue the case.

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grounds exist:

Post Judgment Form - Rev. 12/2018

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► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.

(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.

(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.

(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2018

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• ThCeapseeti1t:i1o7n-covr-a0n2s4w59e-rGmLuRst Dbeocaucmcoemntp2a5n5ie-1d bFyilaedC0e6rt/i1f8ic/1a9te oPfaCgeom61ploiaf n6c2e found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
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Post Judgment Form - Rev. 12/2018

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 Case 1:17-cv-02459-GLR Document 263 Filed 08/20/19 Page 1 of 68

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al.,

:

Plaintiffs,

:

v.

:

Civil Action No. GLR-17-2459

DONALD J. TRUMP, et al.,

:

Defendants.

:

MEMORANDUM OPINION

THIS MATTER is before the Court on four Motions: (1) Defendants President

Donald J. Trump, Secretary of Defense Mark T. Esper,1 Acting Secretary of the Army Ryan

McCarthy,2 Acting Secretary of the Navy Richard V. Spencer, Secretary of the Air Force

Heather Wilson, Acting Secretary of Homeland Security Kevin McAleenan,3 and

Commandant of the U.S. Coast Guard Karl L. Schultz’s4 Partial Motion for Judgment on

the Pleadings and Motion to Partially Dissolve the Preliminary Injunction (“Motion for

Judgment on the Pleadings”) (ECF No. 115); (2) Defendants’ Motion to Dissolve the

Preliminary Injunction (“Motion to Dissolve”) (ECF No. 120); (3) Defendants’ Motion to

1 On July 23, 2019, the Senate confirmed Esper as the Secretary of Defense. Accordingly, the Court substitutes Esper for James Mattis. See Fed.R.Civ.P. 25(d).
2 On June 24, 2019, President Trump appointed McCarthy Acting Secretary of the Army. Accordingly, the Court substitutes McCarthy for Esper. See Fed.R.Civ.P. 25(d).
3 On April 11, 2019, President Trump appointed McAleenan Acting Secretary of Homeland Security. Accordingly, the Court substitutes McAleenan for Nielsen. See Fed.R.Civ.P. 25(d).
4 On June 1, 2018, President Trump appointed Schultz Commandant of the U.S. Coast Guard. Accordingly, the Court substitutes Schultz for Paul Zukunft. See Fed.R.Civ.P. 25(d).

Case 1:17-cv-02459-GLR Document 263 Filed 08/20/19 Page 2 of 68
Dismiss Plaintiffs’ Second Amended Complaint or, in the Alternative, Defendants’ Motion for Summary Judgment (ECF No. 158); and (4) Plaintiffs’5 Cross-Motion for Summary Judgment (ECF No. 163).6 This case involves equal protection and substantive due process challenges to President Trump’s policy regarding transgender persons’ enlistment and service in the military. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will: deny without prejudice in part and deny as moot in part Defendants’ Motion for Judgment on the Pleadings; grant Defendants’ Motion to Dissolve; grant in part and deny in part Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint or, in the Alternative, Defendants’ Motion for Summary Judgment; and deny without prejudice Plaintiffs’ Cross-Motion for Summary Judgment.
5 Plaintiffs are six current service members, named infra at 7; six prospective service members, named infra at 9–10; and an organization, the American Civil Liberties Union of Maryland, Inc.
6 Also pending before the Court are Plaintiffs’ Motion to Lift Stay of Compliance with the Magistrate Judge’s Memorandum Opinion and Order (ECF No. 239) and Defendants’ Motion for Reconsideration, Motion to Continue to Stay Compliance with the Magistrate Judge’s Memorandum Opinion and Order, and Request for an Administrative Stay (ECF No. 257). The Court will address both of these Motions in a forthcoming Memorandum Opinion.
2

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I. BACKGROUND7 A. Factual Background
1. Pre-June 2016 Transgender Military Service Policy At some point before 1981, the U.S. Department of Defense (the “DoD”) implemented a policy that barred transgender men and women from enlisting or serving openly in the military. (2d Am. Compl. ¶ 128, ECF No. 148). This policy applied to transgender individuals regardless of their fitness to serve or their need for medical treatment. (Id. ¶ 129). The DoD based this policy on its conclusion that “Sexual Gender and Identity Disorders” rendered transgender service members “administratively unfit” to serve in the military. (Brown Decl. ¶¶ 48–56, ECF No. 40-32). 2. The Open Service Directive In 2016, the DoD completed a thorough analysis of military costs, readiness, and other factors, concluding that “there was no basis for the military to exclude men and women who are transgender from openly serving their country, subject to the same fitness requirements as other service members.” (2d Am. Compl. ¶ 5). On June 30, 2016, thenSecretary of Defense Ashton Carter issued the Open Service Directive, which permitted transgender persons currently in the military to serve openly effective immediately and permitted the accession8 of transgender individuals starting on July 1, 2017. (Id. ¶ 139,
7 Unless otherwise noted, the Court takes the following facts from Plaintiffs’ Second Amended Complaint, (ECF No. 148), and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)).
8 Accession is “the process of bringing new enlisted recruits and officer candidates into the military.” (2d Am. Compl. ¶ 141).
3

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141). The Open Service Directive also permitted in-service gender transition and covered necessary medical care and treatment to transgender individuals beginning on October 1, 2016. (Pls.’ Mot. Prelim. Inj. Ex. 1 at 2, 6, ECF No. 40-4).9 On June 30, 2017, thenSecretary of Defense James Mattis (“Secretary Mattis”) deferred implementation of the accession component of the Open Service Directive until January 1, 2018. (Pls.’ Mot. Prelim. Inj. Ex. 8, ECF No. 40-11; see 2d Am. Compl. ¶ 162).
3. The President’s Tweets and August 2017 Memorandum On July 26, 2017, President Trump published a series of Tweets10 stating, “After consultation with my Generals and military experts, . . . the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military.” (2d Am. Compl. ¶ 147). On August 25, 2017, President Trump formalized the policy announced in his Tweets in a “Memorandum for the Secretary of Defense and the Secretary of Homeland Security” (the “August 2017 Memorandum” or the “Ban”). (Id. ¶ 158; Compl. Ex. C [“Aug. 2017 Mem.”], ECF No. 1-4). The August 2017 Memorandum dictated a “return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016” (the “Retention Directive”) effective January 1, 2018, (Aug. 2017 Mem. §§ 1(b), 2(a), 3), and directed the military to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018” (the “Accession Directive”), (id. § 2(a)). In
9 Citations to Exhibit 1 to Plaintiffs’ Motion for Preliminary Injunction refer to the pagination the Court’s Case Management/Electronic Case Files (“CM/ECF”) system assigned.
10 A Tweet is a short message posted on the social media website Twitter. 4

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addition, the August 2017 Memorandum prohibited “all use of DoD or [Department of Homeland Security] resources to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex” effective March 23, 2018 (the “Sex-Reassignment Surgery Directive”). (Id. §§ 1(b), 2(b), 3). The August 2017 Memorandum also tasked the Secretary of Defense, in consultation with the Secretary of Homeland Security, with developing a plan to implement these directives (the “Implementation Plan”) by February 21, 2018. (Id. § 3).
4. The Implementation Plan On September 14, 2017, Secretary Mattis issued Terms of Reference, which directed the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff to lead the development of the Implementation Plan and to convene a Panel of Experts (the “Panel”) from within DoD to conduct a study to “inform the Implementation Plan.” (Pls.’ Cert. Conf. Counsel Ex. 20 at 2–3, ECF No. 177-24; Pls.’ Opp’n Defs.’ Mot. Dissolve Prelim. Inj. Ex. 4 at 1–2, ECF No. 139-5).11 The Panel held thirteen meetings over the course of ninety days, conferring with military and civilian medical professionals, commanders of transgender service members, and transgender service members. (Defs.’ Mot. Dissolve Prelim. Inj. Ex. 2 [“DoD Report”] at 18, ECF No. 120-2). On January 11, 2018, the Panel provided Secretary Mattis with its recommendations. (Pls.’ Mem. Opp’n
11 Citations to Exhibit 20 to Plaintiffs’ Certificate of Conference of Counsel refer to the pagination CM/ECF assigned.
5

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Defs.’ Mot. Dismiss Summ. J. & Cross-Mot. [“Pls.’ Opp’n & Cross-Mot.”] at 10, ECF No. 163-2).
On February 22, 2018, Secretary Mattis submitted to President Trump the Implementation Plan, which recommended changes to the transgender service policy set forth in the August 2017 Memorandum. (2d Am. Compl. ¶¶ 176–77). The Implementation Plan consisted of a “short memo” (the “Mattis Memorandum”) and a forty-four page “unsigned document” entitled “Department of Defense Report and Recommendations on Military Service by Transgender Persons” (the “DoD Report”). (Id. ¶ 176).
The Implementation Plan recommended adopting a policy that: (1) transgender individuals who “require or have undergone gender transition” are disqualified from military service, except under certain “limited circumstances,” (Id. ¶ 177; Defs.’ Mot. Dissolve Prelim. Inj. Ex. 1 [“Mattis Mem.”] at 2, ECF No. 120-1; DoD Report at 32); and (2) all other transgender individuals “without a history or diagnosis of gender dysphoria, who are otherwise qualified for service,” may serve only “in their biological sex.” (2d Am. Compl. ¶ 177; Mattis Mem. at 2; DoD Report at 4). There are three “limited circumstances” under which transgender individuals who require or have undergone transition may serve in the military. First, they may serve “if they have been stable for [thirty-six] months in their biological sex prior to accession.” (Mattis Mem. at 2; see also DoD Report at 42). Second, if a service member is diagnosed with gender dysphoria after acceding into the military, the individual “may be retained if they do not require a change of gender and remain deployable within the applicable retention standards.” (Mattis Mem. at 2; see also DoD Report at 42). Third, service members diagnosed with gender dysphoria between the
6

Case 1:17-cv-02459-GLR Document 263 Filed 08/20/19 Page 7 of 68
effective date of the Open Service Directive and the effective date of the Implementation Plan may “continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria” (the “Grandfather Provision”). (Mattis Mem. at 2; see also DoD Report at 42). The Grandfather Provision further states that it “is and should be deemed severable” from the Implementation Plan “should [DoD’s] decision to exempt these Service members be used by a court as a basis for invalidating the entire policy.” (2d Am. Compl. ¶ 178; DoD Report at 43). In addition, transgender service members serving under the Grandfather Provision must “not be deemed to be non-deployable for more than [twelve] months or for a period of time in excess of that established by Service policy (which may be less than [twelve] months).” (2d Am. Compl. ¶ 215; DoD Report at 6).
On March 23, 2018, President Trump issued a second memorandum (the “March 2018 Memorandum”) that “revoke[s]” the August 2017 Memorandum and permits the Secretary of Defense to proceed with the Implementation Plan. (2d Am. Compl. ¶¶ 12, 179–80 (alteration in original); Defs.’ Mot. Dissolve Prelim. Inj. Ex. 3 [“Mar. 2018 Mem.”] at 1, ECF No. 120-3). B. Procedural Background
On August 28, 2017, six transgender individuals who are current service members— Plaintiffs Brock Stone, Kate Cole, John Doe 1, Seven Ero George, Teagan Gilbert, and Tommie Parker (collectively, the “Current Service Members”)—and the American Civil Liberties Union of Maryland, Inc. (the “ACLU”) sued Defendants. (ECF No. 1). On September 14, 2017, Plaintiffs filed a First Amended Complaint. (ECF No. 39). In the First Amended Complaint, Plaintiffs alleged that the Ban violates: (1) the Equal Protection
7

Case 1:17-cv-02459-GLR Document 263 Filed 08/20/19 Page 8 of 68
component of the Due Process Clause of the Fifth Amendment to the United States
Constitution; (2) Fifth Amendment substantive due process; and (3) 10 U.S.C. § 1074
(2018), which entitles current and certain former members of the military to medical care.
(1st Am. Compl. at 32, 36, 38, ECF No. 39).
Also on September 14, 2017, Plaintiffs filed a Motion for a Preliminary Injunction.
(ECF No. 40). On November 21, 2017, this Court granted Plaintiffs’ Motion for
Preliminary Injunction, concluding that Plaintiffs had established a likelihood of success
on the merits of their equal protection claim.12 (Nov. 21, 2017 Mem. & Order at 52–53,
ECF No. 85). The same day, this Court issued a Preliminary Injunction, enjoining the
August 2017 Memorandum’s Accession Directive, Retention Directive, and Sex-
Reassignment Surgery Directive. (Prelim. Inj. at 1–2, ECF No. 84).13
Defendants filed an Answer to Plaintiffs’ First Amended Complaint on December
15, 2017. (ECF No. 96). On March 1, 2018, Defendants filed their Motion for Judgment
12 The Court also dismissed Plaintiffs’ 10 U.S.C. § 1074 claim. (Nov. 21, 2017 Mem. & Order at 53, ECF No. 85).
13 Three different federal district courts in California, Washington, and Washington, D.C. also entered preliminary injunctions prohibiting enforcement of President Trump’s July 26, 2017 Twitter announcement or certain directives in the August 2017 Memorandum. Stockman v. Trump, No. EDCV 17-1799 JGB (KKx), 2017 WL 9732572, at *16 (C.D.Cal. Dec. 22, 2017) (enjoining enforcement of “the Accession, Retention, and Sex Reassignment Surgery Directives”); Karnoski v. Trump, No. C17-1297-MJP, 2017 WL 6311305, at *10 (W.D.Wash. Dec. 11, 2017) (enjoining the defendants from “taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement”), appeal dismissed, No. 17-36009, 2017 WL 8229552 (9th Cir. Dec. 30, 2017); Doe 1 v. Trump, 275 F.Supp.3d 167, 177, 217 (D.D.C. 2017) (enjoining enforcement of the “Accession and Retention Directives, corresponding with sections 1(b) and 2(a) of the [August 2017 Memorandum]”), vacated sub nom. Doe 2 v. Shanahan, 755 F.App’x 19 (D.C. Cir. 2019)
8

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on the Pleadings. (ECF No. 115). Plaintiffs filed an Opposition on March 9, 2018. (ECF
No. 117). On March 16, 2018, Defendants filed a Reply. (ECF No. 118).
On March 23, 2018, Defendants filed their Motion to Dissolve.14 (ECF No. 120).
Plaintiffs filed an Opposition on April 23, 2018. (ECF No. 139). On May 11, 2018,
Defendants filed a Reply. (ECF No. 159).
On April 27, 2018, Plaintiffs filed a Second Amended Complaint for Declaratory
and Injunctive Relief (the “Second Amended Complaint”), which adds six prospective
service members as Plaintiffs: Teddy D’Atri, Ryan Wood, Niko Branco, John Doe 2, Jane
14 Also in March 2018, the defendants moved to dissolve the preliminary injunctions in Stockman, Karnoski, and Doe 2. Defendants’ Motion to Dissolve the Preliminary Injunction, Stockman v. Trump, No. 17-cv-1799-JGB-KK (C.D.Cal. Mar. 23, 2018), ECF No. 82; the defendants’ Motion to Dissolve the Preliminary Injunction, Karnoski v. Trump, No. 17-cv-1297-MJP (W.D.Wash. Mar. 23, 2018), ECF No. 215; Defendants’ Motion to Dissolve the Preliminary Injunction, Doe 2 v. Shanahan, No. 17-cv-1597 (CKK) (D.D.C. Mar. 23, 2018), ECF No. 96. In Stockman and Doe 2, the district courts denied the motions to dissolve the preliminary injunctions. Stockman v. Trump, 331 F.Supp.3d 990, 1004 (C.D.Cal. 2018); Doe 2 v. Trump, 315 F.Supp.3d 474, 498 (D.D.C. 2018), rev’d sub nom. Doe 2 v. Shanahan, No. 18-5257, 2019 WL 102309 (D.C. Cir. Jan. 4, 2019). In Karnoski, the court struck the defendants’ motion. Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 1784464, at *14 (W.D.Wash. Apr. 13, 2018). The defendants appealed in each of these cases. See Stockman v. Trump, No. 18-56539 (9th Cir. Nov. 16, 2018); Doe 2 v. Shanahan, No. 18-5257 (D.C. Cir. Aug. 27, 2018); Karnoski v. Trump, No. 18-35347 (9th Cir. Apr. 30, 2018).
On January 4, 2019, the United States Court of Appeals for the District of Columbia Circuit vacated without prejudice the preliminary injunction the district court had entered. Doe 2, 2019 WL 102309, at *1. On January 22, 2019, the United States Supreme Court issued an order staying the preliminary injunctions in Karnoski and Stockman. Trump v. Karnoski, No. 18A625 (U.S. Jan. 22, 2019) (order staying preliminary injunction); Trump v. Stockman, No. 18A627 (U.S. Jan. 22, 2019) (same). On June 14, 2019, the United States Court of Appeals for the Ninth Circuit vacated the Karnoski court’s order striking the defendants’ motion to dissolve the preliminary injunction and remanded for further proceedings. Karnoski v. Trump, 926 F.3d 1180, 1207 (9th Cir. 2019). The Ninth Circuit, consistent with the Supreme Court, also stayed the preliminary injunction while the district court reconsidered the defendants’ motion. Id.
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Roe 1, and John Doe 3, by his next friends and mother and father, Jane Roe 2 and John Doe 4 (collectively, the “Prospective Service Members”; together with “Current Service Members,” the “Individual Plaintiffs”). (2d Am. Compl. ¶ 4). The Second Amended Complaint also adds allegations regarding the preliminary injunctions this and other federal district courts issued and the Implementation Plan, (id. ¶¶ 173–86, 194, 199, 201–04, 208– 09, 214–16, 220, 224–25, 236), and removes Count III, the 10 U.S.C. § 1974 claim.
On May 11, 2018, Defendants filed their Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint or, in the Alternative, Defendants’ Motion for Summary Judgment. (ECF No. 158). Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment on May 25, 2018. (ECF No. 163). Defendants filed their Reply and Opposition to Plaintiffs’ Cross-Motion for Summary Judgment on June 15, 2018. (ECF No. 176). On July 6, 2018, Plaintiffs filed their Reply in support of their Cross-Motion for Summary Judgment. (ECF No. 190). Defendants filed a Surreply to Plaintiffs’ Cross-Motion for Summary Judgment on August 1, 2018.15 (ECF No. 203).
On March 7, 2019, the Court entered an Order staying the Preliminary Injunction in this case. (ECF No. 249). The policy, as set forth in the Implementation Plan, went into effect on April 12, 2019. (See Mar. 8, 2019 Notice, ECF No. 250). C. Discovery Disputes
On May 4, 2018, the Court referred this case to a United States Magistrate Judge (“USMJ”) for all discovery. (ECF No. 152). On June 15, 2018, Plaintiffs filed a Motion to
15 Plaintiffs did not oppose Defendants’ filing of a Surreply. (Aug 1, 2018 Order, ECF No. 202).
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Compel Supplemental Interrogatory Answers and Production (“Motion to Compel”). (ECF No. 177-1). In their Motion to Compel, Plaintiffs sought deliberative materials regarding: (1) President Trump’s Tweets and the August 2017 Memorandum; (2) the Panel; and (3) the Implementation Plan and President Trump’s acceptance of the Implementation Plan. (Pls.’ Mot. Compel at 1, ECF No. 177-1). The same day, Plaintiffs filed a Motion for a Judicial Determination of Privilege Claims, (ECF No. 178 (sealed)), regarding a PowerPoint presentation that the Army inadvertently produced and Defendants sought to clawback on the theory that it, too, is protected by deliberative process privilege. (Defs.’ Objs. Magistrate Judge’s Mem. Op. & Order at 5, ECF No. 209). On June 18, 2018, Defendants filed a Motion for a Protective Order to preclude discovery directed at the President and other sources concerning presidential communications and deliberations. (ECF No. 179).
On August 14, 2018, the USMJ issued a Memorandum Opinion and Order on these Motions. (Aug. 14, 2018 Mem. Op., ECF No. 204; Aug. 14, 2018 Order, ECF No. 205). The USMJ granted Plaintiffs’ Motion to Compel and dismissed Plaintiffs’ Motion for a Judicial Determination of Privilege Claims as moot. (Aug. 14, 2018 Mem. Op. at 11; Aug. 14, 2018 Order ¶¶ 1–3). The USMJ also granted Defendants’ Motion for a Protective Order as to the President, but denied the Protective Order as to those who communicate with the President. (Aug. 14, 2018 Mem. Op. at 11; Aug. 14, 2018 Order ¶¶ 1–3). Defendants filed Objections to the USMJ’s Memorandum Opinion and Order and moved to stay the Order. (ECF Nos. 208, 209). On September 10, 2018, at the request of the parties, the Court
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entered an Order suspending discovery-related deadlines. (Sept. 10, 2018 Order, ECF No. 213).
On November 30, 2018, the Court overruled Defendants’ Objections to the USMJ’s Memorandum Opinion and Order. (Nov. 30, 2018 Mem. Op. at 22, ECF No. 227; Nov. 30, 2018 Order at 1, ECF No. 228). The Court also stayed compliance with the USMJ’s Order pending the United States Court of Appeals for the Ninth Circuit’s resolution of a similar discovery dispute in Karnoski v. Trump, No. C17-1297-MJP (W.D.Wash.). (Nov. 30, 2018 Mem. Op. at 22; Nov. 30, 2018 Order at 1).
II. DISCUSSION A. Motion to Dissolve
Defendants do not state under which Federal Rule of Civil Procedure they seek dissolution of the Preliminary Injunction. Even though a preliminary injunction is not a “final order,” courts have applied Rule 60(b)(5) to dissolve or modify preliminary injunctions. See Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 60 F.3d 823, 1995 WL 406612, at *2–3 (4th Cir. 1995) (unpublished table opinion); Centennial Broad., LLC v. Burns, 433 F.Supp.2d 730, 733 (W.D.Va. 2006) (footnote omitted) (noting that “[a]lthough a preliminary injunction is not a ‘final’ order or judgment for the purposes of Rule 60(b), courts nonetheless apply the general equitable principles set forth in Rule 60(b)(5)”). Rule 60(b)(5) provides for relief from a final judgment “if it is no longer equitable that the judgment should have prospective application.” A party seeking dissolution of a preliminary injunction as “no longer equitable” bears the burden of establishing that “a significant change in circumstances” warrants dissolution of the
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preliminary injunction. L.J. v. Wilbon, 633 F.3d 297, 304–05 (4th Cir. 2011) (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992)). To satisfy this burden, the party must establish “a significant change either in factual conditions or in law” that makes “enforcement of the [preliminary injunction]. . . detrimental to the public interest.” Id. at 305 (quoting Rufo, 502 U.S. at 384). The Court’s analysis under Rule 60(b)(5) is a “flexible” one and it “focuses on the particular facts of the case.” United States v. Welsh, No. 5:11-HC-2209-D, 2017 WL 7805581, at *5 (E.D.N.C. Mar. 16, 2017) (citing Thompson v. HUD, 404 F.3d 821, 830 (4th Cir. 2005)), aff’d, 879 F.3d 530 (4th Cir. 2018), cert. denied, 139 S.Ct. 1168 (2019).
Defendants maintain that the Court should dissolve the Preliminary Injunction because the President has revoked the August 2017 Memorandum, and therefore, Plaintiffs can no longer establish the equitable factors for issuing a preliminary injunction. Plaintiffs counter that the Implementation Plan is merely the formal execution of the Ban and not a change in circumstances that warrants dissolution of the Preliminary Injunction.16 The Court is persuaded that Defendants have established a significant change in circumstances for at least two reasons.
First, the Implementation Plan does not suffer from the same procedural defects as the August 2017 Memorandum. Plaintiffs take issue with the Ban because President Trump
16 Plaintiffs also contend that, under the voluntary cessation exception to mootness, the Court still retains the power to determine the legality of the Ban even though President Trump revoked it. As the Court explains, infra at 21, President Trump’s revocation of the Ban and adoption of the Implementation Plan is sufficient to establish that Defendants will not revert to the challenged conduct. As a result, the voluntary cessation exception to the mootness doctrine does not apply here.
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allegedly did not consult with military officials before he announced it on Twitter and formalized it in the August 2017 Memorandum. This is not the case with the Implementation Plan. The Panel conducted a study of transgender military service that reviewed evidence collected while the Open Service Directive was in place and drafted a report with the results of its study. (See DoD Report). Secretary Mattis relied on the Panel’s report—the DoD Report—in drafting his February 2018 Memorandum to President Trump describing the Implementation Plan. Then, in the March 2018 Memorandum, President Trump rescinded the August 2017 Memorandum and authorized the military to carry out the Implementation Plan. Although the parties dispute whether the Panel and its study were truly independent, the evidence in the record reflects that the Implementation Plan was at least a product of military judgment, unlike President Trump’s Tweets and the August 2017 Memorandum.
Second, despite Plaintiffs’ characterization of the Implementation Plan as an “execution of” the Ban, this is not the case. The Ban did just that—barred all transgender individuals from serving in the military. The Implementation Plan, by contrast, contains provisions that permit some transgender individuals who have already enlisted to continue to serve and receive transition-related medical treatment. It also contains provisions that permit transgender individuals who intend to enlist to serve, as long as they do so in their biological sex. This is not to say that the Implementation Plan does not bar a significant number of transgender individuals from serving in the military. Rather, this is to acknowledge that there are differences between the August 2017 Memorandum and the Implementation Plan. Indeed, the Preliminary Injunction enjoined the Retention Directive,
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Accession Directive, and Sex-Reassignment Surgery Directive in the August 2017 Memorandum; these directives are absent from the Implementation Plan. Thus, while the Implementation Plan bars many transgender individuals from military service, it is not the blanket transgender service ban set forth in the August 2017 Memorandum. Thus, the Court concludes that Defendants have established a significant change in the factual circumstances.
Because the August 2017 Memorandum is no longer in force, it is not in the public interest to continue enjoining directives that no longer exist. Cf. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 911 F.2d 1331, 1335 (9th Cir. 1990) (in the context of mootness, concluding that “[i]t would be pointless to enjoin enforcement of a regional plan that is no longer in effect.”). The Court, therefore, concludes that dissolution of the Preliminary Injunction is warranted. Accordingly, the Court will grant Defendants’ Motion and dissolve the Preliminary Injunction. B. Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint, or, in
the Alternative, Defendants’ Motion for Summary Judgment & Plaintiffs’ Cross-Motion for Summary Judgment Defendants advance two principal arguments for why the Court should dismiss Plaintiffs’ claims or grant summary judgment in their favor. First, the Court lacks subject matter jurisdiction over Plaintiffs’ claims because they lack standing and their challenge to the August 2017 Memorandum is moot. Second, Defendants are entitled to a highly deferential form of review, and therefore, Plaintiffs fail to state a plausible claim for relief,
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or, alternatively, Defendants are entitled to summary judgment in their favor under such review. The Court first addresses the threshold issues of mootness and standing.17
1. Subject-Matter Jurisdiction a. Rule 12(b)(1) Standard of Review
Rule 12(b)(1) governs motions to dismiss for mootness and for lack of standing, which pertain to subject matter jurisdiction. See CGM, LLC v. BellSouth Telecomm’s, Inc., 664 F.3d 46, 52 (4th Cir. 2011); Akers v. Md. State Educ. Ass’n, 376 F.Supp.3d 563, 569 (D.Md. 2019). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction “challenges a court’s authority to hear the matter brought by a complaint.” Akers, 376 F.Supp.3d at 569. Under Rule 12(b)(1), “the plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction.” Id. (first citing Demetres v. E. W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); and then citing Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)).
Defendants challenging a complaint under Rule 12(b)(1) may advance a “facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting ‘that the jurisdictional allegations of the complaint [are] not true.’” Hasley v. Ward Mfg., LLC, No. RDB-13-1607, 2014 WL 3368050, at *1 (D.Md. July 8, 2014) (alteration in original) (quoting Kerns v. United
17 “When a motion under Fed.R.Civ.P. 12 is ‘based on more than one ground, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.’” Jeffrey Banks, Ltd. v. Jos. A. Bank Clothiers, Inc., 619 F.Supp. 998, 1001 (D.Md. 1985) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 548 (1969) (footnote omitted)).
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States, 585 F.3d 187, 192 (4th Cir. 2009)); see also Wikimedia Found. v. NSA, 857 F.3d
193, 208 (4th Cir. 2017) (quoting Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017)).
When, as here, the defendants raise a largely facial challenge,18 the Court affords
the plaintiffs “the same procedural protection” they would receive on a Rule 12(b)(6)
motion to dismiss. Wikimedia Found., 857 F.3d at 208 (quoting Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982)). As such, the Court takes the facts alleged in the complaint as
true and denies the motion if the complaint alleges sufficient facts to invoke subject matter
jurisdiction. See id.
With a factual challenge, which Defendants also raise, the plaintiffs bear the burden
of proving the facts supporting subject matter jurisdiction by a preponderance of the
evidence. U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). In determining
whether the plaintiffs have met this burden, the Court “is to regard the pleadings’
allegations as mere evidence on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)
18 Initially Defendants challenged Wood’s and Branco’s standing through sealed declarations, and attacked other Plaintiffs’ standing based only on the allegations in the Second Amended Complaint. In their Reply, Defendants admit that their declaration regarding Wood contained a “typographical error” that, once corrected, no longer supports a factual challenge to Wood’s standing. (Defs.’ Reply Mem. Supp. Mot. Dismiss Pls.’ 2d Am. Compl. at 17, ECF No. 176). As to Branco, Defendants submitted a May 11, 2018 declaration from Sergeant First Class Donald D. Osburn, II (“Sergeant Osburn”), which states that Branco has not yet submitted the paperwork necessary to enlist. (Osburn Decl. ¶ 3, ECF No. 160 (under seal)). On May 17, 2018, however, Sergeant Osburn informed Branco that he had submitted all the necessary paperwork, (Branco Supp. Decl. ¶¶ 4–6, ECF No. 163-14), and Defendants do not challenge this assertion. Thus, only Defendants’ facial challenges to Branco’s and Wood’s standing remain.
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(citing Adams, 697 F.2d at 1219). Nevertheless, the Court applies “the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id. (citing Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987)). The movants “should prevail only if the material jurisdictional facts are not in dispute and the [movants are] entitled to prevail as a matter of law.” Id. (citing Trentacosta, 813 F.2d at 1558). Unlike under the summary judgment standard, however, the Court is permitted to decide disputed issues of fact, Kerns, 585 F.3d at 192, and weigh the evidence, Adams, 697 F.2d at 1219.
b. Analysis Article III of the Constitution limits the judicial authority of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1; Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547, as revised, (May 24, 2016). Thus, the threshold question in every federal case is whether the court has authority under Article III to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498 (1975). Both mootness and standing go to whether an Article III case or controversy exists in a given case. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).
i. Mootness At bottom, the Court concludes that Plaintiffs’ challenge to the August 2017 Memorandum is moot. The Court will, therefore, dismiss Plaintiffs’ claims to the extent they allege that the August 2017 Memorandum violated their constitutional rights.
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“[T]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction,” which extends only to actual cases or controversies. Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (alteration in original) (first quoting Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011); and then citing U.S. Const. art. III, § 2). In other words, “[w]hen a case or controversy ceases to exist—either due to a change in the facts or the law—‘the litigation is moot, and the court’s subject matter jurisdiction ceases to exist also.’” Id. (quoting S.C. Coastal Conservation League v. U.S. Army Corps of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015)). A case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 191 (4th Cir. 2018) (quoting Simmons, 634 F.3d at 763), reh’g denied, (Jan. 28, 2019). “Mootness has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)).
Defendants maintain that because President Trump revoked the August 2017 Memorandum, Plaintiffs’ challenge to it is moot. Plaintiffs counter that because the Implementation Plan is “sufficiently similar” to the August 2017 Memorandum and “the challenged conduct continues,” their claims are not moot. (Pls.’ Opp’n & Cross-Mot. at 19). The Court does not find Plaintiffs’ argument persuasive for at least two reasons.
First, as discussed above, the Implementation Plan permits at least some transgender individuals to serve in the military, unlike the August 2017 Memorandum, which set forth
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an outright ban on transgender military service. For example, the Implementation Plan allows transgender individuals who do not have a “history or diagnosis of gender dysphoria” and “who are otherwise qualified for service” to serve “in their biological sex.” (2d Am. Compl. ¶ 177; Mattis Mem. at 2; DoD Report at 4). Transgender individuals who require transition may serve in the military “if they have been stable for [thirty-six] months in their biological sex prior to accession.” (2d Am. Compl. ¶¶ 11, 176–78; Mattis Mem. at 2; DoD Report at 42). Further, service members who were diagnosed with gender dysphoria between the effective date of the Open Service Directive and the effective date of the Implementation Plan may “continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria” under the Grandfather Provision. (2d Am. Compl. ¶¶ 11, 176–78; Mattis Mem. at 2). Again, this is not to say that the Implementation Plan does not bar a significant number of transgender individuals from serving in the military. This is to acknowledge that the August 2017 Memorandum—which banned all transgender military service—and the Implementation Plan are not one and the same.
Second, the March 2018 Memorandum “revoke[s]” the August 2017 Memorandum. (2d Am. Compl. ¶ 180 (alteration in original); Mar. 2018 Mem. at 1). It also “acknowledged receipt” of the Implementation Plan and authorized the Secretary of Defense and the Secretary of Homeland Security “to proceed with plans for implementation.” (2d Am. Compl. ¶ 179; Mar. 2018 Mem. at 1). And, on April 12, 2019, the Implementation Plan went into effect. (See Mar. 8, 2019 Notice). Thus, Defendants’ challenged conduct—at least with regard to the August 2017 Memorandum—does not continue.
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Nevertheless, Plaintiffs contend that Defendants’ “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (Pls.’ Opp’n & Cross-Mot. at 20) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Under the voluntary cessation exception to the mootness doctrine, Plaintiffs maintain, Defendants bear the burden of establishing with an absolute certainty that the challenged conduct cannot be expected to recur, and that Defendants fail to meet this standard with regard to the Accession, Retention, and SexReassignment Surgery Directives.
The voluntary cessation exception to the mootness doctrine prevents a defendant from “engag[ing] in unlawful conduct, stop[ping] when sued to have the case declared moot, then pick[ing] up where he left off.” Deal, 911 F.3d at 192 (alterations in original) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)); see also Porter, 852 F.3d at 364 (explaining that the voluntary cessation exception seeks to prevent “a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after” (quoting ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54–55 (1st Cir. 2013)). As a result, defendants asserting that their voluntary compliance moots a case bear the “formidable burden” of demonstrating that it is “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Porter, 852 F.3d at 364 (quoting Laidlaw, 528 U.S. at 190); see also Deal, 911 F.3d at 191 (“[A] party asserting mootness bears a ‘heavy burden of persuading’ the court that ‘subsequent events [make] it absolutely clear that the allegedly
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wrongful behavior could not reasonably be expected to recur.’” (quoting Laidlaw, 528 U.S. at 189)).
The United States Court of Appeals for the Fourth Circuit has held that “a governmental entity’s change of policy renders a challenge moot when the governmental entity ‘has not asserted its right to enforce [the challenged policy] at any future time.’” Porter, 852 F.3d at 364 (quoting Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989)). The Fourth Circuit has also held that “statutory changes that discontinue a challenged practice are ‘usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.’” Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000) (quoting Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994)). If, however, the defendants “openly announce[ ] [their] intention to reenact precisely the same provision after a lawsuit is dismissed, a court may still have jurisdiction despite statutory changes discontinuing the challenged conduct.” Franco v. City of Seat Pleasant, No. GJH-18-2027, 2019 WL 1317340, at *4 (D.Md. Mar. 21, 2019) (internal quotation marks omitted) (quoting Valero, 211 F.3d at 116).
In this case, Defendants have met their burden. President Trump revoked the August 2017 Memorandum in his March 2018 Memorandum. The March 2018 Memorandum also authorized the military to proceed with the Implementation Plan, which does not contain any of the directives from the August 2017 Memorandum, and the Implementation Plan went into effect in April 2019. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 640 (4th Cir.), as amended, (May 31, 2017), as amended, (June 15, 2017) (concluding
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that President Trump’s new order restricting entry into the United States of individuals from certain countries “revoked the earlier order and rendered moot the challenge to the earlier order”), vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138 S.Ct. 353 (2017).19
To support their argument that Defendants have failed to meet their burden, Plaintiffs point to the Grandfather Provision, which is severable “should [the DoD’s] decision to exempt these [s]ervice members be used by a court as a basis for invalidating the entire policy.” (DoD Report at 43). Plaintiffs’ argument misses the mark. Plaintiffs narrowly focus on the Grandfather Provision instead of on the change in policy as a whole. Further, the fact that the Grandfather Provision is severable from the rest of the Implementation Plan demonstrates Defendants’ intent to keep the other parts of the Implementation Plan, even if they cannot retain that provision.
Plaintiffs also contend that Defendants have failed to carry their burden because they have not made it “absolutely clear” that President Trump will not reissue the Ban. While President Trump retains the power to reinstitute the Ban, he has not “openly announce[d]” his intention to do so. See Franco, 2019 WL 1317340, at *4 (quoting Valero, 211 F.3d at 116) (concluding that the plaintiff’s challenge to a special tax seeking declaratory and injunctive relief was moot because, “[a]lthough Defendants may have ‘the
19 The Supreme Court vacated and remanded International Refugee Assistance Project v. Trump because the order at issue “‘expired on its own terms’ on September 24, 2017,” and therefore the case was rendered moot. Trump v. Int’l Refugee Assistance, 138 S.Ct. 353 (2017) (quoting Protecting the Nation From Foreign Terrorist Entry Into the United States, Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017)).
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power to reenact’ the special tax ‘after the lawsuit is dismissed,’ they have not announced any intention to do so”).
In sum, the Court concludes that Plaintiffs’ claims challenging the constitutionality of the August 2017 Memorandum are moot. Accordingly, the Court will grant Defendants’ Motion to the extent it seeks to dismiss those claims.
ii. Standing In brief, the Court concludes that, except for George, Current Service Members lack standing to challenge the Implementation Plan, and will therefore dismiss their claims without prejudice. All Prospective Service Members, on the other hand, have standing to challenge the Implementation Plan, and the Court will not dismiss their claims on this basis. Standing’s “irreducible constitutional minimum” comprises three prongs. Spokeo, 136 S.Ct. at 1547 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. The party invoking federal jurisdiction bears the burden of establishing standing. Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). At the pleading stage, plausible factual allegations, which the Court accepts as true, may suffice to establish each element of standing. Id.; Beck, 848 F.3d at 270 (quoting Lujan, 504 U.S. at 561). Although plaintiffs must establish standing for each claim and for each form of relief sought, Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“The standing requirement applies to each claim
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that a plaintiff seeks to press.”), “the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement,” id. (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)).
Defendants primarily contend that Individual Plaintiffs fail to establish a concrete injury. To satisfy the injury-in-fact prong, a plaintiff must establish that he or she “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560). To be particularized, an injury “must affect the plaintiff in a personal and individual way.” Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 234, 240 (4th Cir. 2019) (quoting Spokeo, 136 S.Ct. at 1548). To be concrete, an injury “must actually exist” and be “real, and not abstract.” Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 344 (4th Cir. 2017) (quoting Spokeo, 136 S.Ct. at 1548). That is, an alleged injury cannot be “too speculative for Article III purposes.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Lujan, 504 U.S. at 564). Though a threatened injury is sufficient to confer standing, the injury must be “certainly impending,” or there must be a “‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 409 n.5).
aa. Current Service Members Defendants maintain that because Current Service Members may continue to serve in the military and receive medically necessary treatment under the Implementation Plan, they have not suffered an actual injury. Plaintiffs counter that this Court already concluded that Current Service Members have standing to challenge the Ban in its Memorandum and
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Order granting the Preliminary Injunction, and the Implementation Plan is merely a continuation of the Ban. As a result, Plaintiffs argue, the Court’s inquiry should instead focus on whether Current Service Members’ claims are moot. Plaintiffs’ argument rests on the false premise that the Ban and the Implementation Plan are one and the same, and as the Court discussed above, they are not. This is not the end of the Court’s standing inquiry, however.
Current Service Members amended their pleading to challenge the Implementation Plan. (See 2d Am. Compl. ¶¶ 176–86, 194, 199, 208–09, 214–16, 220, 224–25, 236). Generally, standing is determined “as of the time the action is brought.’” Aid for Women v. Foulston, 441 F.3d 1101, 1109 (10th Cir. 2006). However, when plaintiffs file a complaint in federal court and then, as here, voluntarily amend the complaint, “courts look to the amended complaint to determine jurisdiction.” Daniels v. Arcade, L.P., 477 F.App’x 125, 130–31 (4th Cir. 2012) (quoting Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007); see also Saleh v. Fed. Bureau of Prisons, No. CIV.A05CV02467PABKLM, 2009 WL 3158120, at *5 (D.Colo. Sept. 29, 2009) (noting that “standing is determined at the time the relevant claim is raised or party is joined” (discussing Riverside v. McLaughlin, 500 U.S. 44 (1991)). Accordingly, the Court will assess whether Current Service Members have standing to challenge the Implementation Plan via the allegations in the Second Amended Complaint. The Court addresses the types of injury Current Service Members allege in turn.
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1. Severability Clause Plaintiffs first maintain that, based on the severability clause in the Grandfather Provision, Defendants can end the protections of the Grandfather Provision at any moment. Defendants counter that the future harm of Defendants possibly rescinding the Grandfather Provision is too speculative. The Court agrees with Defendants. Here, to trigger the severability clause, the Grandfather Provision must “be used by a court as a basis for invalidating the entire policy.” (DoD Report at 43). Thus, before the Grandfather Provision could be severed from the rest of the Implementation Plan, a court would have to: (1) declare that provision unlawful; and (2) conclude that the rest of the Implementation Plan would be lawful but for the Grandfather Provision. Plaintiffs do not allege that it is likely that a court would find the Grandfather Provision unlawful and the rest of the Implementation Plan lawful. Nor do they plead any facts that would permit the Court to infer that this situation is likely to occur. Instead, in their Opposition, they again argue that the burden is on Defendants under the mootness doctrine to establish that the Grandfather Provision will not be rescinded. But, as the Court addressed above, the Ban and the Implementation Plan are not one and the same, and Plaintiffs’ challenge to the Ban is moot. Thus, the burden is on Plaintiffs to establish standing to challenge the Implementation Plan. Without plausible factual allegations that would permit the Court to infer that the severability provision is likely to be triggered, the Court concludes that Current Service Members fail to establish standing based on this purported injury.
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2. Medical Care Plaintiffs plead that certain Current Service Members may be denied medically necessary treatment under the Implementation Plan. Defendants contend that Current Service Members’ claims of standing related to the uncertain provision of medically necessary treatment are speculative. Plaintiffs assert that due to the severability clause and the possibility that President Trump could re-impose the transition-related-care ban, Current Service Members may not receive medically necessary care.20 Plaintiffs also argue that because Defendants have not defined “medically necessary care” as used in the Grandfather Provision, Current Service Members could be denied such care based on the Implementation Report’s speculation about the efficacy of surgical care to treat gender dysphoria. The Court disagrees with Plaintiffs. Here, Current Service Members allege that they “may be denied medically necessary treatment” and that it is “unclear what care will still be provided.” (2d Am. Compl. ¶¶ 193–94). The factual basis for this allegation is that the Implementation Plan “provides no details as to what will be considered ‘medically necessary’ or the process that will govern requests for such care” and “distort[s] . . . medical literature” about the medical treatment of gender dysphoria. (Id. ¶ 194). Plaintiffs do not, however, allege that Current Service Members have been denied medically necessary treatment or provide any factual
20 Plaintiffs also assert that Defendants bear the burden of establishing that Current Service Members’ challenge to the Sex-Reassignment Surgery Directive is moot. Like Current Service Members’ other alleged injuries, because the Court concluded that their challenge to the Ban is moot, Current Service Members must demonstrate standing to challenge the Implementation Plan.
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allegations that would permit the Court to infer that this is likely to occur. Nor do they plausibly plead that the Grandfather Provision is likely to be rescinded or that President Trump will likely re-impose the ban on surgical care for transgender service members. Left only with Plaintiffs’ allegations that speculate about whether Current Service Members will receive medically necessary treatment under the Implementation Plan, which expressly states that they will receive such treatment, the Court concludes that Current Service Members fail to establish an injury in fact related to the denial of medically necessary treatment.
3. Inability to Reenlist Plaintiffs also contend that Defendants fail to address their allegations that the Grandfather Provision “may not protect their right to reenlist after their current terms of service are over.” (Pls.’ Opp’n & Cross-Mot. at 22) (citing 2d Am. Compl. ¶¶ 178, 186, 199, 215–16). To support their allegations, Plaintiffs point to an internal Army slideshow presentation “generated shortly after the President’s Twitter announcement” which “reveals that the Army specifically examined how long it would take to ‘eliminate[ ]’ all its transgender service members through attrition or involuntary discharge.”21 (Id.) (citing Pls.’ Mem. Opp’n Defs.’ Mot. Dissolve Prelim. Inj. Ex. 3 at 12–13, ECF No. 139-4). Defendants counter with a Declaration from Stephanie A. Barna, Acting Assistant
21 The Court notes that Plaintiffs cherry-pick the term “eliminat[e]” from a single slide and fail to provide the full context. The slide includes the word “elimination” in a list of ways transgender officers may leave the Army: “no clear end dates; separations occur due to promotion non-selection, attrition, elimination, and retirement.” (Pls.’ Mem. Opp’n Defs.’ Mot. Dissolve Prelim. Inj. Ex. 3 at 12–13, ECF No. 139-4). In this context, the Court interprets the term to mean termination from employment with the military.
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Secretary of Defense (Manpower and Reserve Affairs), who is responsible for “drafting and implementation” of the Implementation Plan. (Barna Decl. ¶¶ 1–2, ECF No. 176-1). Barna avers that “no exempted transgender [s]ervice member will be denied reenlistment if otherwise qualified.” (Id. ¶ 6). Defendants also explain that the Army slideshow Plaintiffs cite, pre-dates the Implementation Plan, and therefore it is not a reflection of current military policy.
Here, Barna’s Declaration specifically addresses how the Grandfather Provision in the Implementation Plan will be applied, removing the uncertainty surrounding whether Current Service Members will be allowed to reenlist. Plaintiffs do not produce any evidence to rebut Barna’s statements, such as declarations from transgender service members who have been told that they may not reenlist. In addition, the Army slideshow, dated August 23, 2017, was created before the Implementation Plan. Plaintiffs assert that there “may well be other similar documents [like the slideshow] in Defendants’ files.” (Pls.’ Opp’n & Cross-Mot. at 22). But they do not give the Court any reason to believe that this is the case. Even if this statement were true, the slideshow does not address whether transgender service members in the Army will be allowed to reenlist. (See Pls.’ Mem. Opp’n Defs.’ Mot. Dissolve Prelim. Inj. Ex. 3 at 12). It merely examines the personnel consequences of not permitting transgender service members to reenlist.
Plaintiffs also plead “[o]n information and belief” that “some service members who are transgender are already being told that they may not reenlist.” (2d Am. Compl. ¶ 178). But because a complaint must plausibly state a claim, using “upon information and belief” as a pleading device survives a motion to dismiss only where “the facts are peculiarly
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within the possession of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible.” Malibu Media, LLC v. Doe, No. PWG13-365, 2014 WL 7188822, at *4 (D.Md. Dec. 16, 2014) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)). If transgender service members are being told that they may not be able to reenlist, such information is not exclusively within the possession of Defendants, and presumably those service members could share this information with Plaintiffs. Plaintiffs also do not plead factual information that would make it plausible for the Court to infer that transgender service members are being told that they may not be able to reenlist. In any event, as a factual challenge, Plaintiffs may not rely on the allegations contained in their pleadings alone to establish material jurisdictional facts. Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768 (citing Trentacosta, 813 F.2d at 1559).
Thus, the Court concludes that Current Service Members have not established an injury based on their inability to reenlist. Certain alleged injuries related to the inability to commission, however, dictate a different conclusion.
4. Inability to Commission Both George and Gilbert allege that they intend to pursue a commission in the military and that they would be prohibited from commissioning under the Implementation Plan. (2d Am. Compl. ¶¶ 48, 55, 190, 219–20). Defendants contend that George’s and Gilbert’s assertions are too speculative to confer standing because neither has applied for a commission, and they have only provided a “vague description of future intent.” (Defs.’ Mot. Dismiss Summ. J. at 14, ECF No. 158). Relying again on Barna’s Declaration,
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Defendants contend that because DoD has not developed its policy related to commissioning under the Implementation Plan, any assertion that George or other service members would be barred from commissioning is too speculative. The Court disagrees with Defendants with regard to George.
Here, this Court previously concluded that George “is subject to a substantial risk that his attempt to accede into the military as a commissioned officer will be prohibited solely on the basis on his transgender status.” (Mem. & Order at 33, ECF No. 85). Based on the allegations and evidence before the Court, this remains true. George alleges that he has undergone transition-related surgery and that he is “currently eligible for a commission under the Open Service Directive.” (2d Am. Compl. ¶¶ 46, 48). George further alleges that he plans to apply for a commission in the U.S. Army Nurse Corps in May 2018. (Id. ¶¶ 47– 48). George avers that “[b]ecause I have a prior Bachelor’s degree in a different field [than nursing], I am eligible to commission immediately, even before completing my second Bachelor’s in Nursing.” (George Decl. ¶ 5, ECF No. 139-37). The Second Amended Complaint states that “DoD treats commissioning as an officer as a new accession,” and therefore, transgender individuals who “would otherwise be eligible for commissions, would not be eligible as a result of President Trump’s indefinite ban on new accessions” under the Implementation Plan. (2d Am. Compl. ¶ 219). These statements establish that George has a concrete plan to commission in the Army Nurse Corps and that under the Implementation Plan’s ban on accessions of transgender individuals who have transitioned to their preferred gender, George faces a substantial risk that he will not be able to commission. Barna’s statement that DoD “has not yet specifically resolved the issue” of
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in-service commissioning, (Barna Decl. ¶ 7)22—what George seeks to do—does not rebut George’s assertions. In the absence of a defined policy, the Court is left with the plain language of the Implementation Plan, which bans transgender individuals that have surgically transitioned to their preferred gender from serving, and Plaintiffs’ allegations that such individuals would not be allowed to commission under the Implementation Plan.
Thus, the Court concludes that George establishes an injury in fact sufficient to give him standing to challenge the Implementation Plan. George’s injury is also fairly traceable to the Implementation Plan because, by its plain language, George is barred from commissioning and, as a result, an order enjoining the Implementation Plan would redress his injury.
Gilbert’s allegations and Declaration, by contrast, are too speculative to establish an injury in fact for at least two reasons. First, Gilbert has not undergone sex-reassignment surgery. Although Gilbert alleges that she “plans to seek approval for medically indicated surgical treatment in the future,” she does not plead when she plans to do so. (2d Am. Compl. ¶ 54). Having neither undergone sex-reassignment surgery nor having a concrete plan to do so, Gilbert would not be categorically barred from service under the Implementation Plan. Second, Gilbert pleads that she “has approximately one year of course work left in her undergraduate degree at Arizona State University, after which she intends to apply to commission as an officer.” (Id. ¶ 55). In her Declaration, she avers that
22 Barna states that “exempted transgender cadets and midshipmen enrolled in the Service Academies will be able to commission” under the Grandfather Provision. (Barna Decl. ¶ 7). Because George is not enrolled in a service academy, this policy does not apply to him.
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she “recently signed a re-enlistment contract, and at the end of that contract I will have served [eighteen] years, leaving me two years short of significant retirement benefits. If I were not able to sign an additional contract to serve out those two additional years, it would be at tremendous loss, both personally and financially.” (Gilbert Decl. ¶ 6, ECF No. 13938). Gilbert’s Declaration, therefore, contemplates that she will not commission and will continue to serve as an enlisted service member. Given the contradictions in Gilbert’s allegations and the statements in her Declaration, it is unclear whether Gilbert even intends to commission or, if she does, when she plans to do so. Thus, the Court concludes that Gilbert’s alleged injury is too speculative to give her standing to challenge the Implementation Plan.
5. Deployability Requirement The Implementation Plan states that transgender service members “may not be deemed to be non-deployable for more than [twelve] months or for a period of time in excess of that established by Service policy (which may be less than [twelve] months).” (2d Am. Compl. ¶ 186) (quoting DoD Report at 43). As a result, Plaintiffs plead, “without providing any detail as to how such policies will be interpreted and applied,” transgender service members “may face removal from the military.” (Id.). Defendants contend that these allegations fail to satisfy all three prongs of the standing analysis. Defendants assert that the future harm of discharge is too speculative and that because these standards are based on the military’s worldwide deployability requirement (the “Deployability Requirement”), not the Implementation Plan, any injury Current Service Members may suffer is not fairly traceable to the Implementation Plan. Therefore, Defendants argue, an
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order enjoining the Implementation Plan would not redress their injury. Plaintiffs attempt to reframe their challenge, asserting that “Plaintiffs are not challenging the Deployability Requirement’s requirement that service members may not be classified as non-deployable for over a year,” but rather that “Plaintiffs’ injuries plainly arise under the Implementation Plan and the DoD Report, which characterize hormone therapy as inconsistent with deployment, which is contrary to the facts.” (Pls.’ Opp’n & Cross-Mot. at 23 n.8). As a result, Plaintiffs maintain, “[i]t appears likely that Plaintiffs will be improperly designated as nondeployable based on the Implementation Plan’s unsupported conclusions regarding hormone maintenance.” (Id. at 23). The Court does not find Plaintiffs’ argument persuasive.
The portions of the DoD Report Plaintiffs cite do not establish that transgender service members’ discharge is “certainly impending” or that there is “substantial risk” that they will be discharged. Driehaus, 573 U.S. at 158 (quoting Clapper, 568 U.S. at n.5). The DoD Report states that “[t]ransition-related treatment that involves cross-sex hormone therapy or sex-reassignment surgery could render [s]ervice members with gender dysphoria non-deployable for a significant period of time—perhaps even a year—if the theater of operations cannot support the treatment.” (DoD Report at 33) (emphasis added). The DoD Report goes on to state that, if the theater of operations does not allow a transgender service member to have access to a lab to test hormone levels, “then the [s]ervice member must be prepared to forego treatment, monitoring, or the deployment,” (id.); it does not contemplate that a transgender service member would necessarily be discharged under these circumstances. In addition, the DoD Report concedes that the data
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on how transition-related therapy may impact deployability is “limited” and “the periods of transition-related non-availability and the risks of deploying untreated [s]ervice members with gender dysphoria are uncertain.” (Id. at 33–34). So, while these assertions may be contrary to the facts about hormone treatment for transgender individuals, as Plaintiffs contend, they do not establish that transgender service members will necessarily be deemed nondeployable and, as a result, discharged from the military. Moreover, Plaintiffs’ own language—“may face removal from the military” and “it appears likely that” Plaintiffs will be deemed nondeployable based upon the DoD Report’s statements— reveals the speculative nature of their injuries. Thus, the Court concludes that Current Service Members fail to establish an injury in fact related to the DoD Report’s statements regarding deployability of transgender service members.
Further, Defendants correctly note that the Deployability Requirement applies to all service members. (Admin. Record Pt. 1 at 32, ECF No. 133-3). Thus, an order enjoining the Implementation Plan would not remove this deployability requirement or prevent the discharge of a service member due to a failure to meet this requirement. While the DoD Report’s characterization of hormone therapy as “inconsistent with deployment” may be “contrary to the facts,” the risk of discharge Current Service Members face is a result of the Deployability Requirement, not the Implementation Plan. The Court, therefore, concludes that Current Service Members’ alleged injury—the threat of discharge due to non-deployability—is not fairly traceable to the Implementation Plan. Nor would an order enjoining the Implementation Plan redress Current Service Members’ alleged injury.
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Accordingly, the Court concludes that Current Service Members fail to establish standing related to the DoD Report’s statements about transgender service members’ deployability.
6. Stigmatic Injury Plaintiffs allege that they have suffered and continue to suffer stigmatic injury. Defendants contend that Current Service Members fail to establish standing based on stigmatic injury because they must have personally been denied equal treatment. Although the Court disagrees with Defendants’ characterization of what is sufficient to establish stigmatic injury, it nevertheless concludes that Current Service Members fail to establish standing based on stigmatic injury. Defendants rely on Allen v. Wright, 468 U.S. 737 (1984), for the proposition that Current Service Members must personally be denied equal treatment to demonstrate standing based on stigmatic injury. In Allen, parents of African-American schoolchildren sued to force the Internal Revenue Service to deny tax-exempt status to schools that discriminated on the basis of race. 468 U.S. 737, 739–40, 755 (1984), abrogated by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). The parents alleged that their children suffered “stigmatic injury, or denigration” due to the government’s support of racially discriminatory institutions. Id. at 754. The U.S. Supreme Court held that the parents did not have standing. Id. It explained that a “stigmatizing injury often caused by racial discrimination” is the type of noneconomic injury that “is sufficient in some circumstances to support standing.” Id. at 755. However, “such injury accords a basis for standing only to “those persons who are personally denied equal treatment” by
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the challenged discriminatory conduct. Id. (quoting Heckler v. Mathews, 465 U.S. 728, 740 (1984)).
As the United States District Court for the District of Columbia observed in Doe 2 v. Trump, the Supreme Court concluded that “such stigmatic injury did not support standing for the particular plaintiffs in Allen because their children had never applied to any of the private schools at issue, and therefore they had not been ‘personally denied equal treatment.’ Instead, they had merely alleged an ‘abstract stigmatic injury’ that would be equally applicable to ‘all members’ of an entire racial group, nationwide.” 315 F.Supp.3d 474, 487 (D.D.C. 2018) (quoting Allen, 468 U.S. at 756), rev’d sub nom. Doe 2 v. Shanahan, 755 F.App’x 19 (D.C. Cir. 2019). Applying Allen to the Doe 2 plaintiffs, who are current service members that fall under the Grandfather Provision, the court concluded that they had standing to challenge the Implementation Plan because their stigmatic injury arose out of their unequal treatment under the Grandfather Provision. Id. The Doe 2 court explained, “These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.” Id.
Here, Current Service Members could have pled that they have suffered and will suffer stigmatic injury because they are allowed to serve simply because they were in the military when the Open Service Directive was implemented and would not otherwise be permitted to serve under the Implementation Plan. Plaintiffs do not, however, make such allegations. Instead, Plaintiffs’ stigmatic-injury allegations are either conclusory or relate to the Ban and DoD Report, not the Grandfather Provision. (See 2d Am. Compl. ¶¶ 199–
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200, 214, 216). For example, Plaintiffs plead that they “face extraordinary stress, uncertainty, and stigma from the ban on transgender individuals from open service and the singling out their medical care for a ban on coverage” and that “[t]he stigma that the Serving Plaintiffs face has been increased by the [DoD] Report’s use of stereotypes and conjecture to allege that persons with gender dysphoria, even after successful treatment, have higher rates of psychiatric needs, including the Implementation Report’s treatment of gender dysphoria as a ‘psychiatric disorder’ or ‘mental health condition.’” (Id. ¶¶ 199– 200).
Moreover, Plaintiffs allege that “the inclusion of the [Grandfather Provision] does not address the injury from stigma,” which contemplates that their stigma does not arise from the Grandfather Provision, as the Doe 2 plaintiffs asserted, but rather stems from President Trump’s statements and statements in the DoD Report. Put simply, Current Service Members do not allege that they are permitted to serve based on a technicality due to the Grandfather Provision, and therefore, their service is on objectively unequal terms. Thus, the Court concludes, based on the allegations in the Second Amended Complaint, Current Service Members do not sufficiently plead a stigmatic injury. Because Current Service Members may be able to adequately allege stigmatic injury, however, the Court will dismiss their claims, except for George’s, without prejudice.
In sum, George has demonstrated an injury in fact sufficient to confer standing to challenge the Implementation Plan based on the substantial risk that he will not be permitted to commission. All other Current Service Members have not established standing to challenge the Implementation Plan. Accordingly, the Court will grant in part
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Defendants’ Motion on this basis and dismiss Current Service Members’ claims, with the exception of George’s, without prejudice.
Because Stone, the only member of the ACLU identified in the Second Amended Complaint, does not have standing, the ACLU does not have associational standing. Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 606 (4th Cir. 2012) (“For an organization to have standing, it must establish that at ‘least one identified member had suffered or would suffer harm’ from the defendant’s conduct.” (quoting Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009))). The Court will, therefore, grant Defendants’ Motion as to the ACLU’s lack of standing and dismiss the ACLU’s claims without prejudice.
bb. Prospective Service Members In brief, the Court concludes that all Prospective Service Members have standing to challenge the Implementation Plan.
1. Branco and Wood Defendants contend that because Branco and Wood would not meet the Open Service Directive’s accession standards, any alleged injury they would suffer by not being able to join the military under the Implementation Plan would not be redressed by an order enjoining the Plan.23 The Court disagrees.
23 Defendants also argue that if Branco and Wood enlist while the Preliminary Injunction is still in place and the Implementation Plan has not gone into effect, they would be permitted to serve under the Grandfather Provision once the Implementation Plan takes effect. In essence, Defendants argue that if Branco and Wood do not enlist while they can, any injury they suffer would be self-inflicted, and self-inflicted harm is insufficient to establish standing. This argument is meritless. The only reason Branco and Wood had the
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Here, Branco and Wood allege that they underwent transition-related surgery more than eighteen months ago, require no additional surgeries, and seek to join the military— Branco, the Army, and Wood, the Marine Corps. (2d Am. Compl. ¶¶ 71, 73, 77, 82). They also allege that they satisfy the enlistment requirements under the Open Service Directive. (Id. ¶¶ 74, 80, 203). Branco and Wood are “actively engaged [in] discussions with recruiters.” (Id. ¶ 203). Wood began the enlistment process in January 2018, “immediately after” the military lifted the ban on accessions of transgender individuals as part of the Open Service Directive. (Id. ¶ 71). “Since then, [Wood] has been actively working with his recruiter and medical professionals to provide all of the necessary documentation to be medically cleared for service.” (Id.). Similarly, Branco has “been actively working with a recruiter” since the military lifted the accessions ban “at the beginning of 2018.” (Id. ¶ 77). “He recently resubmitted his medical paperwork in order to pursue enlistment and is awaiting a final date for undergoing a physical examination and signing an enlistment contract.” (Id.). Yet, because Branco and Wood have transitioned to their preferred gender, they are barred from serving in the military under the Implementation Plan. This injury in fact is sufficient to give Branco and Wood standing to challenge the Implementation Plan because they face the substantial and very real, certainly impending risk that they will not be allowed to accede into the military. Driehaus, 573 U.S. at 158 (quoting Clapper, 568
opportunity to enlist and avail themselves of the Grandfather Provision is because this Court and other federal district courts enjoined the August 2017 Memorandum and the Implementation Plan. Defendants aggressively fought to have those injunctions lifted so that the Implementation Plan could go into effect. Indeed, when courts either dissolved or stayed the preliminary injunctions, Defendants immediately notified the Court of their intention to proceed with the Implementation Plan and, in fact, did so.
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U.S. at 409 n.5); (see Nov. 21, 2017 Mem. & Order at 33) (concluding that George had standing to challenge the Accession Directive because he “is subject to a substantial risk that his attempt to accede into the military as a commissioned officer will be prohibited solely on the basis of his transgender status”).
Defendants also argue that because Branco and Wood can seek a “waiver or exception” to the Implementation Plan, they must first seek waivers—and have their waiver applications denied—to have standing. (DoD Report at 5).24 Defendants are mistaken. Branco and Wood are barred from military service under the Implementation Plan, unless they obtain waivers. No other class of individuals is categorically barred from military service or is required to seek waivers to serve. Thus, even if Branco and Wood are not ultimately barred from military service, they will have to confront a barrier to entry purely based on their status as transgender individuals, which Plaintiffs contend violates the Equal Protection component of the Fifth Amendment’s Due Process Clause. This is sufficient to establish an injury in fact for the purposes of standing at this stage in the litigation. See Bostic v. Schaefer, 760 F.3d 352, 372 (4th Cir. 2014) (noting that “in equal protection cases . . . ‘[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, . . . [t]he “injury in fact” . . . is the denial of equal treatment resulting from the imposition of the barrier’”
24 Under the Implementation Plan, “each accession standard may be waived in the discretion of the accessing Service based on that Service’s policies and practices, which are driven by the unique requirements of different Service missions, different Service occupations, different Service cultures, and at times, different Service recruiting missions.” (DoD Report at 10).
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(alterations in original) (quoting Ne. Fla. Chapter of Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666 (1993))).
As for the other standing prongs, these injuries are fairly traceable to the Implementation Plan because it sets forth the provisions that bar Branco and Wood from serving in the military and an order enjoining the Implementation Plan would redress their injuries of not being permitted to join the military or having to seek a waiver to do so.
Thus, the Court concludes that Branco and Wood have standing to challenge the Implementation Plan.
2. Doe 2, D’Atri, and Roe 1 Similarly, Defendants contend that because Doe 2, D’Atri, and Roe 1 would not meet the Open Service Directive’s accession standards, any alleged injury they would suffer by not being able to join the military would not be redressed by an order enjoining the Implementation Plan. Again, the Court disagrees. Here, Doe 2, D’Atri, and Roe 1 allege that they will be injured by the Implementation Plan because, under its terms, they would not be permitted to join the military. Doe 2 underwent transition-related surgery approximately one year after Plaintiffs filed the Second Amended Complaint. (2d Am. Compl. ¶ 87). Roe 1 was scheduled to undergo a second transition-related surgery in June or July 2018, and D’Atri was scheduled to undergo transition-related surgery in August 2018. (Id. ¶¶ 66, 95). Doe 2 plans to enlist in the Air Force, and has been working with a recruiter since January 2018. (Id. ¶ 85). D’Atri is “seeking to enlist in the Air Force” and “has been actively working with a recruiter since July 2017.” (Id. ¶ 64). Roe 1 “intends to enlist in the Air Force, and has been
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seeking to enlist since January 2018.” (Id. ¶ 93). She temporarily halted her efforts because she is undergoing transition-related surgeries. (Id. ¶¶ 94–95). She plans to resume her efforts to enlist after her second surgery in June or July 2018. (Id. ¶¶ 95–96). All three planned to seek a waiver to reduce or eliminate the eighteen-month pre-enlistment stability period under the Open Service Directive. (Id. ¶¶ 68, 88, 96). D’Atri’s recruiter even advised him that he is eligible for the waiver. (Id. ¶ 68).
Because Doe 2 underwent transition-related surgery and D’Atri and Roe 1 were scheduled to undergo transition-related surgery (and indeed have done so if the surgeries went according to plan), all three of them would be banned from military service under the Implementation Plan. Under the Open Service Directive, however, they would be eligible to serve if they waited eighteen months, or sooner if they obtained a waiver. Thus, their injury of not being permitted to join the military is fairly traceable to the Implementation Plan and an order enjoining the policy would redress their injury. The Court, therefore, concludes that Doe 2, D’Atri, and Roe 1 have standing to challenge the Implementation Plan.
3. Doe 3 Defendants assert that Doe 3’s alleged injury—not being allowed to join the Coast Guard—is too speculative to confer standing because he is not eligible to enlist in the Coast Guard for another two to three years. Plaintiffs counter that the Implementation Plan “will plainly prevent” Doe 3 from enlisting, which affords him standing to challenge the policy. (Pls.’ Reply Mem. Supp. Cross-Mot. Summ. J. at 5, ECF No. 190). The Court finds Defendants’ argument unconvincing.
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Defendants rely on McConnell v. FEC, 540 U.S. 93 (2003), for the proposition that Doe 3’s injury is “too remote temporally to satisfy Article III.” Id. at 226. As the United States Court of Appeals for the Sixth Circuit has explained, however, the Supreme Court’s conclusion in McConnell did not rest on temporality. Thomas More Law Ctr. v. Obama, 651 F.3d 529, 538 (6th Cir. 2011) (citing McConnell, 540 U.S. at 226), abrogated on other grounds by Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). Rather, the Supreme Court concluded that the plaintiffs did not have standing because it “could not know whether the McConnell plaintiffs would even suffer an injury six years later.” Id. (citing McConnell, 540 U.S. at 226). The Sixth Circuit observed that “[t]he challenged provision would affect the McConnell plaintiffs only if the following things happened in an election six years later: (1) a challenger ran in the primary or election; (2) the plaintiff created an advertisement mentioning the challenger; (3) the advertisement did not identify the plaintiff by name; and (4) the broadcasters attempted to charge McConnell more than their lowest unit rate for his ads.” Id. (citing McConnell, 540 U.S. at 224–25). Put simply, “[s]tanding depends on the probability of harm, not its temporal proximity.” Orangeburg, S.C. v. FERC, 862 F.3d 1071, 1078 (D.C. Cir. 2017) (alteration in original) (quoting 520 Michigan Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006)); see also Pub. Citizen, Inc. v. Trump, 361 F.Supp.3d 60, 82 (D.D.C. 2019) (concluding that the plaintiffs’ statements that they “plan to purchase new vehicles in the next five to seven years” and that they specifically wanted to purchase vehicle-to-vehicle-communications-equipped vehicles were sufficient to establish standing to challenge Executive Orders and agency
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guidance that delayed implementation of a proposed rule on vehicle-to-vehicle communications).
Here, Doe 3 is a fifteen-year-old who revealed to his family that he is transgender in January 2018 and “has been undergoing therapy and is in the process of initiating the use of hormone blockers as a medically necessary part of his gender transition.” (2d Am. Compl. ¶¶ 97, 99). Doe 3 alleges that he has “a concrete plan to enlist in the military” and that he intends to join the U.S. Coast Guard once he is of age. (Id. ¶¶ 100, 204). As Defendants correctly note, individuals cannot join the Coast Guard until they are eighteen years old, or seventeen years old with parental consent, see 10 U.S.C. § 505(a). As a result, Defendants maintain, this two-to-three-year timeline renders Doe 3’s injury too remote in time to be certainly impending. But, as discussed above, temporality is not the focus of the Court’s analysis. Doe 3 alleges that he intends to join the Coast Guard when he reaches enlistment age, and, at this stage in the litigation, the Court must accept Doe 3’s allegations as true. See Wikimedia Found., 857 F.3d at 208. In addition, Doe 3’s injury is not contingent on a chain of future possible events; it relies on a single future event—the inevitable denial of his application to enlist in the Coast Guard because of his transgender status. While Doe 3’s injury will occur two to three years in the future, it is not “too speculative” to confer standing to challenge the Implementation Plan. See Pub. Citizen, 361 F.Supp.3d at 82. To be sure, Doe 3 could serve in his biological sex under the Implementation Plan. He has, however, already begun transition-related medical treatment. Thus, the Court can plausibly infer that Doe 3 requires gender transition, that he is transitioning to his preferred gender, and that he will not be stable for thirty-six months in
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his biological sex before applying to enlist in the Coast Guard. As a result, under the Implementation Plan, Doe 3 would be barred from enlisting in the Coast Guard when attempts to do so. Doe 3, therefore, sufficiently alleges an injury in fact. Further, an order enjoining the Implementation Plan would redress his injury of not being permitted to join the Coast Guard, and his injury is fairly traceable to the Implementation Plan. Thus, Doe 3 has standing to challenge the Implementation Plan.
In sum, the Court concludes that all Prospective Service Members have standing to challenge the Implementation Plan. Accordingly, the Court will deny Defendants’ Motion to the extent it seeks to dismiss their claims for lack of standing.
2. 12(b)(6) Motion to Dismiss or, in the Alternative, for Summary Judgment a. Conversion of Defendants’ Motion
Defendants style their Motion as a motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A motion styled in this manner implicates the Court’s discretion under Rule 12(d). See Kensington Vol. Fire Dep’t, Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436–37 (D.Md. 2011), aff’d, 684 F.3d 462 (4th Cir. 2012). This Rule provides that when “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Court “has ‘complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.’” Wells-Bey v. Kopp, No. ELH-12-
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2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2012 Supp.)).
The Fourth Circuit has articulated two requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice and a reasonable opportunity for discovery. See Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264, 281 (4th Cir. 2013). When the movant expressly captions its motion “in the alternative” as one for summary judgment and submits matters outside the pleadings for the court’s consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). The Court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
Ordinarily, summary judgment is inappropriate when “the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise sufficiently the issue that more discovery is needed, the non-movant must typically file an affidavit or declaration under Rule 56(d), explaining the “specified reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of
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discovery.” Hamilton v. Mayor of Baltimore, 807 F.Supp.2d 331, 342 (D.Md. 2011) (quoting Young v. UPS, No. DKC-08-2586, 2011 WL 665321, at *20 (D.Md. Feb. 14, 2011)). A Rule 56(d) request for discovery is properly denied when “the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995)).
Here, Plaintiffs oppose conversion of Defendants’ Motion into one for summary judgment because the parties have not completed discovery. To support their position, Plaintiffs submitted a Rule 56(d) affidavit from Attorney Marianne F. Kies (the “Kies Declaration”). (Kies Decl., ECF No. 163-16). Defendants argue that Plaintiffs have not satisfied Rule 56(d)’s requirement of establishing that they “cannot present facts essential to justify [their] opposition.”25 (Defs.’ Reply & Opp’n Pls.’ Cross-Mot. at 48, ECF No. 176). Defendants then challenge the substance of Plaintiffs’ requests for additional discovery, arguing that much of the information Plaintiffs seek is “immaterial or unavailable on the basis of privilege” and that, because deference to military decisions is
25 Defendants also assert that Plaintiffs’ request for additional discovery is “inconsistent” with their Cross-Motion for Summary Judgment. The Court disagrees. Plaintiffs’ Cross-Motion for Summary Judgment is based on the premise that the Ban and Implementation Plan are not entitled to any deference, and therefore, fail to pass muster under heightened scrutiny. As a result, Plaintiffs contend, they do not need additional discovery to establish that the Ban and Implementation Plan violate the Fifth Amendment’s Equal Protection component. Alternatively, Plaintiffs maintain that they need additional discovery to establish how much deference the Court should afford the Implementation Plan. Thus, Plaintiffs argue in the alternative, which they are permitted to do.
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“constitutionally-mandated,” any discovery requests related to whether the Implementation Plan is the product of independent military judgment are not sufficient to create a genuine dispute of material fact. (Id. 48–49).26 Defendants’ arguments are flawed in at least three respects.
First, as discussed below, the level of deference, if any, to which Defendants’ decisions related to the Implementation Plan are entitled turns on whether and to what extent the record supports Secretary Mattis’s recommendations to President Trump. Second, as Plaintiffs note, discovery in this case is ongoing and there are unresolved disputes pertaining to several of Defendants’ assertions of presidential communications privilege and deliberative process privilege. Third, Kies details, with sufficient specificity, information Plaintiffs would seek in discovery that could create genuine disputes of material fact. This information includes: “all documents and communications” the Panel received; “the identity of all persons” involved in developing the Implementation Plan; “all documents and communications within Defendants’ possession that were received from outside parties opposed to military service by transgender individuals”; “all documents and communications” related to the functioning of the Panel, including but not limited to, research, analysis, and recommendations underlying the Implementation Plan; “directives underlying the Implementation Plan”; and “potential alternatives” to the Implementation
26 Defendants also argue that Plaintiffs are not entitled to additional discovery because this case should be reviewed on the administrative record. But the case Defendants cite for this proposition, Camp v. Pitts, 411 U.S. 138 (1973) (per curiam), involved judicial review of an agency action under the Administrative Procedure Act. Id. at 140. Plaintiffs, by contrast, bring a facial constitutional challenge to the Implementation Plan. Camp, therefore, is inapposite.
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Plan the Panel considered and “dissenting opinions voiced within” the Panel. (Kies Decl. ¶¶ 41, 43, 46, 48, 50, 51, 55). Kies avers that this information could counter Defendants’ assertions that, as a product of independent military judgment, the Implementation Plan is entitled to deference. (Id. ¶¶ 42, 44, 47, 50, 53, 57). To be sure, some of the items listed in the Kies Declaration may not be material to Plaintiffs’ claims, but Plaintiffs are entitled to any discovery relevant to their claims. See Adams Hous., LLC v. City of Salisbury, 672 F.App’x 220, 223 (4th Cir. 2016) (explaining that a plaintiff must have an “adequate opportunity . . . to present its case” before the court can grant summary judgment).
Thus, the Court concludes that Plaintiffs’ Rule 56(d) affidavit sufficiently establishes that additional discovery is necessary. Accordingly, the Court will construe Defendants’ Motion as a motion to dismiss.
b. Rule 12(b)(6) Standard of Review The purpose of a Rule 12(b)(6) motion is to “test[ ] the sufficiency of a complaint,” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is

not required to forecast evidence to prove the elements of the claim, the complaint must

allege sufficient facts to establish each element. Goss v. Bank of America, N.A., 917

F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th

Cir. 2012)), aff’d sub nom. Goss v. Bank of America, NA, 546 F.App’x 165 (4th Cir. 2013).

In considering a Rule 12(b)(6) motion, a court must examine the complaint as a

whole, consider the factual allegations in the complaint as true, and construe the factual

allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268

(1994); Lambeth v. Bd. of Comm’rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)). But the court need not accept unsupported or

conclusory factual allegations devoid of any reference to actual events, United Black

Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions couched as

factual allegations, Iqbal, 556 U.S. at 678.

c. Analysis

i.

Fifth Amendment Equal Protection Claim

The Fifth Amendment’s Due Process Clause contains an equal protection

component that prohibits denying to any person the equal protection of the laws. United

States v. Windsor, 570 U.S. 744, 774 (2013). This constitutional protection applies to those

who serve in the United States military. See Frontiero v. Richardson, 411 U.S. 677, 690–

91 (1973). To state an equal protection claim, the plaintiffs must allege: (1) that they have 52

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been “treated differently from others with whom [they are] similarly situated”; and (2) that “the unequal treatment was the result of intentional or purposeful discrimination.” Martin v. Duffy, 858 F.3d 239, 252 (4th Cir. 2017) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)), cert. denied, 138 S.Ct. 738 (2018). Plaintiffs must plead “sufficient facts to satisfy each of these requirements in order to state a cognizable equal protection claim.” Id. (citing Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). If the plaintiffs make this showing, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id. (quoting Morrison, 239 F.3d at 654).
aa. Prima Facie Equal Protection Claim With regard to the first prong—different treatment—Plaintiffs allege that the Implementation Plan subjects transgender service members “to a set of standards different from those governing other service members.” (2d Am. Compl. ¶ 216). Specifically, it “categorically bans ‘[t]ransgender persons who require or have undergone gender transition,’ and disqualifies all ‘[t]ransgender persons with a history or diagnosis of gender dysphoria from military service.’” (Id. ¶ 220). Plaintiffs further allege that under the Implementation Plan “transgender service members will be held to different standards to receive medically necessary care than all other members of the U.S. military, even where a transgender service member seeks the very same or substantially equivalent medical procedures.” (Id. ¶ 225). As to the second prong, Plaintiffs plead that the Implementation Plan discriminates against them and other transgender individuals “on the basis of invidious stereotypes, irrational fears, and moral disapproval.” (Id. ¶ 228). Plaintiffs’ factual allegations support
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this statement. For example, Plaintiffs allege that the American Psychological Association

(the “APA”), the American Medical Association, and the Palm Center27 all “quickly

condemned” the Implementation Plan as inconsistent with the medical and psychological

research on transgender individuals. (Id. ¶¶ 181–83). For example, the APA stated: “No

scientific evidence has shown that allowing transgender people to serve in the armed forces

has an adverse impact on readiness or unit cohesion.” (Id. ¶ 181) (quoting Arthur C. Evans

Jr., APA Statement Regarding Transgender Individuals Serving in Military, Am.

Psychological

Ass’n

(Mar.

26,

2018),

https://www.apa.org/news/press/releases/2018/03/transgender-military.

Thus, the Court concludes that Plaintiffs plausibly allege that the Implementation

Plan violates Equal Protection component of the Fifth Amendment’s Due Process Clause.

bb. Level of Scrutiny

Unsurprisingly, the parties dispute the applicable level of scrutiny. Defendants

maintain that a highly deferential form of rational basis review applies. Plaintiffs counter

that heightened scrutiny applies and that deference to military decision-making is only one

factor to consider in the analysis. The Court agrees with Plaintiffs.

Defendants principally rely on Rostker v. Goldberg, 453 U.S. 57 (1981), for the

proposition that they are entitled to deferential rational basis review. Defendants misread

Rostker. Rostker involved an equal protection challenge to the Military Selective Service

27 The Palm Center is an independent, non-profit research institute that conducts research on “sexual minorities in the military.” About, Palm Center, https://www.palmcenter.org/about/ (last visited Aug. 19, 2019).
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Act’s (the “MSSA”) male-only draft registration requirement. Id. at 63. In Rostker, the Supreme Court expressly rejected the government’s argument that rational basis review should apply in the area of military affairs and national security. Id. at 68–70. Instead, as Plaintiffs correctly note, the Rostker Court applied heightened scrutiny. Id. at 87 (“By now it should be clear that statutes like the MSSA, which discriminate on the basis of gender, must be examined under the ‘heightened” scrutiny.’”). Citing Schlesinger v. Ballard, 419 U.S. 498 (1975), a case that upheld naval regulations creating different promotion requirements for female officers, the Rostker Court explained that Schlesinger “did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance.” Id. at 71. In simpler terms, “Congress is [not] free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause.” Id. at 67. After detailing the legislative history of Congress’s decision not to require women to register for the draft, which included both houses of Congress “adduc[ing] extensive testimony and evidence concerning the issue,” through hearings that “built on other hearings held the previous year addressed to the same question,” the Supreme Court concluded that Congress’s decision to exempt women from the draft was not the “accidental by-product of a traditional way of thinking about females” and was therefore constitutional. Id. at 72, 74 (internal quotation marks omitted) (quoting Califano v. Webster, 430 U.S. 313, 320 (1977)). Thus, Rostker does not dictate rational
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basis review in this case, nor does it require that the Court blindly defer to military
decisions. Instead, the Court’s review of military policy,
involves the careful assessment of a number of factors, including whether the policy is facially neutral, whether it targets a suspect class, whether the class is similarly situated to others affected, whether the policy was motivated by animus, whether it infringes upon a fundamental right (and, if so, how), what military purposes are furthered by the policy, whether those purposes are legitimate, and whether Congress or the Executive used considered professional judgment and accommodated the servicemembers’ rights in a reasonable and evenhanded manner, given the rights at issue.
Doe 2 v. Shanahan, 917 F.3d 694, 704 (D.C. Cir. 2019) (Wilkins, J., concurring).
Trump v. Hawaii, 138 S.Ct. 2392 (2018), another case on which Defendants rely,
does not alter this conclusion. Though Defendants cherry-pick several quotes from the
opinion to support their argument for applying a highly deferential standard of review, the
fact remains that Trump v. Hawaii involved judicial review of the President’s power over
immigration. 138 S.Ct. at 2420. To be sure, the Supreme Court noted that a deferential
standard of review applies “across different contexts and constitutional claims,” but all the
cases it discussed involved immigration law. See id. at 2419. Further, the policy at issue in
Trump v. Hawaii was facially neutral and, as a result, the Court applied rational basis
review. Id. at 2420. As the Court will explain below, that is not the case here.
The Court next rejects Defendants’ argument that rational basis review applies
because the Implementation Plan is based on a medical diagnosis—gender dysphoria—and
not transgender status. As the Ninth Circuit observed, the Implementation Plan itself states:
“Transgender persons with a history or diagnosis of gender dysphoria are disqualified from
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military service, except under [certain] limited circumstances”; that “Transgender persons who require or have undergone gender transition are disqualified from military service”; and that “Transgender persons without a history or diagnosis of gender dysphoria . . . may serve . . . in their biological sex.” Karnoski v. Trump, 926 F.3d 1180, 1201 (9th Cir. 2019) (per curiam); (see also Mattis Mem. at 2–3). By its plain language, then, the Implementation Plan discriminates on the basis of transgender status. In addition, the Implementation Plan categorically bars transgender individuals who have transitioned to their preferred gender—a recommended treatment to alleviate the distress gender dysphoria causes. (See 2d Am. Compl. ¶ 125). Thus, contrary to Defendants’ assertions that the Implementation Plan discriminates on the basis of gender dysphoria, it bars transgender individuals who presumably no longer suffer from the symptoms of this medical condition because they have received treatment to alleviate it. The Court, therefore, concludes that the Implementation Plan discriminates on the basis of transgender status, not a medical condition.
Finally, the Court must determine the applicable level of scrutiny. In M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F.Supp.3d 704 (D.Md. 2018), a case involving, in part, an equal protection challenge to a school district’s policy barring a transgender student from using locker rooms that aligned with his gender identity, the Court held that transgender discrimination is sex-based discrimination and that transgender status is “at least a quasisuspect classification.” Id. at 718–22. As a result, the Court applied heightened scrutiny to the policy. Id. at 722. Although M.A.B. was not in the military context, as addressed above, the Court does not apply a different equal protection test to military policy. Rostker, 453
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U.S. at 72. Additionally, this Court previously determined that heightened scrutiny applied to the Ban, (Nov. 21, 2017 Mem. & Order at 43–44), and the Court sees no reason to depart from that determination in assessing the Implementation Plan. The Court, therefore, concludes that heightened scrutiny applies to the Implementation Plan, with the appropriate level of deference to the military’s evaluation of the evidence underlying the Implementation Plan. See Rostker, 453 U.S. at 83.
But, the level of deference to which Defendants are entitled in this case remains to be seen. To determine how much deference, if any, the Court should afford the Implementation Plan, the Court must be able to assess the evidence the Panel gathered and the military’s evaluation of that evidence. Plaintiffs are, therefore, entitled to discovery on this issue. Because it is unclear what level of deference the Court should apply to the Implementation Plan, the Court declines to consider whether the Implementation Plan passes muster under heightened scrutiny at this time.
Accordingly, the Court will deny Defendants’ Motion as to Plaintiffs’ equal protection claim. The Court will also deny without prejudice Plaintiffs’ Cross-Motion for Summary Judgment on their equal protection claim.
ii. Fifth Amendment Substantive Due Process Claim Defendants attack the substance of Plaintiffs’ due process allegations, arguing that they fail to allege a cognizable liberty or property interest, and even if they did, Plaintiffs fail to allege “how Defendants have intruded upon such interest.”28 (Defs.’ Mot. Dismiss
28 Defendants assert two additional arguments. First, Defendants contend that Plaintiffs’ substantive due process claims fail for the same reasons as their equal protection
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Summ. J. at 43). Plaintiffs, for their part, rely on this Court’s previous rejection of Defendants’ attempt to dismiss their substantive due process claims. Because, Plaintiffs assert, they plausibly allege that the Implementation Plan suffers from the same constitutional defects as the Ban, the Court should deny Defendants’ Motion as to their substantive due process claim. The Court’s earlier conclusion that the Ban and the Implementation Plan are not one and the same forecloses this argument. The Court agrees with Defendants that Plaintiffs fail to adequately allege a substantive due process claim.
Where, as here, the alleged conduct involves executive action, the Court addresses the arbitrariness of the challenged actions as a “threshold question.” Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). First, the Court must examine “whether the challenged conduct was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Id. (quoting Lewis, 523 U.S. at 847 n.8). If the alleged conduct does not satisfy this test, the Court need not consider the nature of the asserted liberty or property interest. Id. If it does, the Court turns to the nature of the interest asserted and its appropriate level of protection. Id.
claims, namely, that the Implementation Plan is subject to a highly deferential form of review. The Court rejects this argument for the same reasons it did as to Plaintiffs’ equal protection claim. Second, Defendants assert that to the extent Plaintiffs allege that reliance on the Open Service Directive created a protected interest in opportunities and benefits, this claim fails. Because the Court concludes that Plaintiffs fail to adequately allege a substantive due process claim, the Court declines to address this argument.
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aa. Arbitrariness of the Action Executive conduct that “shock[s] the conscience” is “fatally arbitrary in the constitutional sense.” Id. at 742. Conduct that meets this standard involves “abusing [executive] power, or employing it as an instrument of oppression.” Id. (alteration in original) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992)). Although intentional conduct “most likely” satisfies this standard, such conduct alone is not enough. Id. (quoting Lewis, 523 U.S. at 849). The conduct must also be “intended to injure in some way unjustifiable by any government interest.” Id. (quoting Lewis, 523 U.S. at 849). Additionally, “because specific conduct that in one context would meet the test might not in another, application of this standard ‘demands an exact analysis of circumstances.’” Id. (quoting Lewis, 523 U.S. at 850). In conducting its analysis, the Court must exercise “selfrestraint” and “utmost care,” carefully scrutinizing the circumstances “before any abuse of power is condemned as conscience shocking.” Waybright v. Frederick Cty., 528 F.3d 199, 205 (4th Cir. 2008) (first quoting Collins, 503 U.S. at 125; and then quoting Lewis, 523 U.S. at 850). Here, Plaintiffs merely allege that the Ban and the Implementation Plan are “arbitrary and inconsistent with available data” and “serve[ ] no legitimate government interest.” (2d Am. Compl. ¶ 237). To be sure, the alleged conduct Plaintiffs initially challenged—President Trump’s Tweets announcing the Ban and August 2017 Memorandum formalizing it—was, as this Court concluded, sufficient to satisfy the “shocks the conscience” standard. (Nov. 21, 2017 Mem. & Order at 49–50). Because Plaintiffs’ challenge to the Ban is moot, however, the Court focuses its analysis on the
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allegations surrounding the Implementation Plan. The Second Amended Complaint lacks any allegations surrounding the Implementation Plan that would permit the Court to plausibly infer conscience-shocking, or even intentional, conduct on the part of Defendants in the recommendation and adoption of the Implementation Plan. As a result, Plaintiffs’ substantive due process claim fails the threshold inquiry.
bb. Protected Liberty or Property Interest Even assuming that Plaintiffs adequately alleged conscience-shocking conduct, however, they fail to plead a cognizable liberty or property interest. Several courts have addressed whether service members or prospective service members have a property interest in their employment with the military. Whether an individual has a property interest in employment with the military depends on the individual’s status. For example, “courts have universally held that reservists do not have property interests in their continued employment.” Perez v. United States, 850 F.Supp. 1354, 1362 (N.D.Ill. 1994); see, e.g., Sims v. Fox, 505 F.2d 857, 861 (5th Cir. 1974); May v. Gray, 708 F.Supp. 716, 720 (E.D.N.C. 1988) (citing Sims, 505 F.2d at 861); Pauls v. Sec’y of the Air Force, 457 F.2d 294, 295 (1st Cir. 1972); Coppedge v. Marsh, 532 F.Supp. 423, 429 (D.Kan. 1982); Woodward v. Moore, 451 F.Supp. 346, 347 (D.D.C. 1978). Relying on 10 U.S.C. § 681(a),29 these courts have concluded that reservists serve at the
29 10 U.S.C. § 681(a) states that: “Except as otherwise provided in this title, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty.”
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pleasure of the Secretary of the branch of the military involved, and, therefore, they “can have no legitimate expectation of continued employment.” Perez, 850 F.Supp. at 1362.
Courts have reached similar conclusions in cases involving military officers who asserted property interests in their employment with the military. Id. “It is well-established law that military officers serve at the pleasure of the President and have no constitutional right to be promoted or retained in service and that the services of an officer may be terminated with or without reason.” Id. (quoting Pauls, 457 F.2d at 297).
Likewise, courts have also concluded that “there is no constitutional right to enlist or re-enlist in the armed forces.” Id.; see Lindenau v. Alexander, 663 F.2d 68, 72 (10th Cir. 1981) (“It is well established that there is no right to enlist in this country’s armed services.”); see also Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987) (noting that the plaintiff “did not have a property or liberty interest protected by the due process clause in continued military service in the National Guard, nor did he have a constitutionally protected right to re-enlist” (footnote omitted)); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir. 1982) (“[T]here is no constitutional right to be commissioned in the Air Force Reserve or to serve in the Armed Forces at all.” (citations omitted)); Mangino v. Dep’t of Army, 818 F.Supp. 1432, 1435 (D.Kan. 1993) (“Because it is clearly established law that there is no right to enlist or reenlist in the armed forces, plaintiff cannot state a claim based upon some property interest in being employed by the Army.”), aff’d, 17 F.3d 1437 (10th Cir. 1994); Gant v. Binder, 596 F.Supp. 757, 767 (D.Neb. 1984) (“The fact that a soldier might be able to reenlist does not, by itself, create a protected expectation or entitlement.”); Shaw v. Gwatney, 584 F.Supp. 1357 (E.D.Ark. 1984), aff’d in part and vacated in part, 795 F.2d
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1351 (8th Cir. 1986). Nor is there a protected property interest in continued military service. Spadone v. McHugh, 842 F.Supp.2d 295, 304 (D.D.C. 2012) (quoting Wilhelm v. Caldera, 90 F.Supp.2d 3, 8 (D.D.C. 2000)).
The Fourth Circuit, relying on 10 U.S.C. § 1169,30 has held that enlisted service members have no property interest in continued employment with the military. Guerra v. Scruggs, 942 F.2d 270, 278 (4th Cir. 1991); Tatum v. United States, No. RDB-06-2307, 2007 WL 2316275, at *5 (D.Md. Aug. 7, 2007), aff’d, 272 F.App’x 251 (4th Cir. 2008) (“The fact that the Secretary of the Navy retained the discretion to proscribe procedures for discharging [the plaintiff] vitiates any claim to a property right he had in his enlisted status and benefits.”). But see Perez, 850 F.Supp. at 1362 (concluding that an enlisted service member had a “limited” property interest in his continued employment with the Navy); May, 708 F.Supp. at 721 (concluding that a former Army private had a “property interest in continued military employment”).
Here, Plaintiffs plead that Defendants have denied them “an opportunity to demonstrate their continued fitness for duty” and “the ability to enlist in the U.S. Armed Forces despite being fit to serve.” (2d Am. Compl. ¶ 234). Plaintiffs further allege that they have suffered “loss of liberty, loss of salary and benefits on which they and their dependents rely, loss of access to medically necessary care, disruption of their military service
30 10 U.S.C. § 1169 provides: No regular enlisted member of an armed force may be
discharged before his term of service expires, except— (1) as prescribed by the Secretary concerned; (2) by sentence of a general or special court martial; or (3) as otherwise provided by law. 63

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(including loss of promotion and other career opportunities), and violations of their constitutional right to substantive due process.” (Id. ¶¶ 229, 239). Plaintiffs also plead that their retirement benefits or eligibility for retirement benefits could be impacted, and that the Implementation Plan strips them of “opportunities and benefits previously recognized by DoD’s Open Service Directive.” (Id. ¶ 234). Notably, Plaintiffs’ claims regarding the loss of salary, benefits, medical care, and opportunities all stem from an alleged entitlement or constitutional right to military service, which the case law, discussed above, clearly states does not create a property interest. Plaintiffs’ allegations of “loss of liberty” and “violations of their constitutional right to substantive due process” are conclusory. The Second Amended Complaint is devoid of any plausible factual allegations that would give rise to a protected liberty interest. Thus, Plaintiffs fail to adequately allege a legally cognizable liberty or property interest.
In sum, the Court concludes that Plaintiffs fail to sufficiently allege a substantive due process claim. The Court will, therefore, grant Defendants’ Motion to the extent it seeks to dismiss this claim. The Court will, however, dismiss it without prejudice. C. Motion for Judgment on the Pleadings
1. Rule 12(c) Standard of Review Defendants move under Rule 12(c) for judgment on the pleadings.31 “Under Rule 12(c), a party may move for judgment on the pleadings any time after the pleadings are
31 On April 27, 2018, Plaintiffs filed a Second Amended Complaint. Typically, an amended complaint moots a pending motion for judgment on the pleadings because the amended pleading supersedes the original complaint. See Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 456 n.4 (2009) (“Normally, an amended complaint
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closed, as long as it is early enough not to delay trial.” Prosperity Mortg. Co. v. Certain
Underwriters at Lloyd’s, No. GLR-12-2004, 2013 WL 3713690, at *2 (D.Md. July 15,
2013). The pleadings are closed when the defendant files an answer. See Burbach Broad.
Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405 (4th Cir. 2002). A Rule 12(c) motion
is governed by the same standard as Rule 12(b)(6) motions to dismiss. Id. at 406.
2. Analysis
Defendants move to dissolve the Preliminary Injunction as to President Trump and
to dismiss him as a Defendant because the Court cannot issue declaratory or injunctive
relief against him. Because the Court will dissolve the Preliminary Injunction, the Court
will deny as moot Defendants’ request to dissolve the Preliminary Injunction as to the
President. Because Plaintiffs’ arguments focus only on the propriety of declaratory relief
against President Trump,32 the Court’s analysis will focus on whether the Court can issue
a declaratory judgment against the President.
supersedes the original complaint.”). In certain circumstances, however, “Defendants should not be required to file a new motion [for judgment on the pleadings] simply because an amended pleading was introduced while their motion was pending. See Venable v. Pritzker, No. GLR-13-1867, 2014 WL 2452705, at *5 (D.Md. May 30, 2014), aff’d, 610 F.App’x 341 (4th Cir. 2015) (quoting Buechler v. Your Wine & Spirit Shoppe, Inc., 846 F.Supp.2d 406, 415 (D.Md. 2012)). If the issue the original motion addresses remains at issue in the new pleading, the court simply may consider the motion as being addressed to the amended pleading. Id. (quoting Buechler, 846 F.Supp.2d at 415). In this case, because President Trump is still a Defendant, and Plaintiffs still seek injunctive and declaratory relief against him, the Court will apply Defendants’ Motion to the Second Amended Complaint.
32 Plaintiffs state that they do not object to “modifying the preliminary injunction so that it does not run against the President, so long as President Trump’s subordinates remain enjoined from implementing his unconstitutional directives.” (Pls.’ Opp’n Defs.’ Partial Mot. J. Pleadings at 2, ECF No. 117).
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Defendants contend that: (1) courts may not issue a declaratory judgment against the President in his official capacity and in the performance of discretionary actions where a declaratory judgment entered against subordinate Executive Branch officials would afford Plaintiffs complete relief; and (2) because a judgment against the other Defendants would give Plaintiffs the relief they seek, the Court should dismiss President Trump as a Defendant. Plaintiffs counter that Defendants conflate the appropriateness of declaratory versus injunctive relief and that only a declaratory judgment that President Trump violated Plaintiffs’ constitutional rights would provide them full relief.
Defendants primarily rely on Justice Scalia’s concurring opinion in Franklin v. Massachusetts, 505 U.S. 788 (1992) (plurality), for the proposition that courts cannot issue a declaratory judgment against the President. Id. at 827 (Scalia, J., concurring). There, Justice Scalia stated, “I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court.” Id. He opined that “[p]ermitting declaratory or injunctive relief against the President personally . . . would produce needless head-on confrontations between district judges and the Chief Executive.” Id. at 828. But as this Court noted in D.C. v. Trump, “Six years after Justice Scalia’s statement in Franklin, in Clinton v. New York, the Supreme Court expressly stated that a declaratory judgment against the President could redress the plaintiff’s injuries.” 291 F.Supp.3d 725, 751–52 (D.Md. 2018) (citing Clinton v. New York, 524 U.S. 417, 433 n.22 (1998) (noting that, having found an injury-in-fact, traceability and redressability were “easily satisfied” because “each injury is traceable to the President’s cancellation of [certain act provisions],
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and [it] would be redressed by a declaratory judgment that the cancellations are invalid”), rev’d and remanded on other grounds by In re Trump, 928 F.3d 360 (4th Cir. 2019). Thus, this Court concluded that ordering the plaintiffs’ requested injunctive or declaratory relief would not violate the separation of powers doctrine. Id. at 751.
Similarly, the defendants in CASA de Maryland, Inc. v. Trump, 355 F.Supp.3d 307 (D.Md. 2018), sought to dismiss President Trump from that case “due to the separation of powers concerns that would arise from a court enjoining the President.” Id. at 328. Acknowledging that, in general, courts do not have the power “to enjoin the President in the performance of his official duties,” this Court declined to dismiss President Trump from the case because “none of the authority cited by Defendants requires that the President be dismissed at [the motion to dismiss] stage.” Id. at 328–29 (quoting Franklin, 505 U.S. at 802–03).
The Court agrees with the sound reasoning of D.C. v. Trump and CASA de Maryland, Inc. v. Trump. Thus, at this juncture, the Court will deny without prejudice Defendants’ Motion to the extent it seeks to dismiss President Trump from the case.
III. CONCLUSION For the foregoing reasons, the Court will: deny without prejudice in part and deny as moot in part Defendants’ Partial Motion for Judgment on the Pleadings and Motion to Partially Dissolve the Preliminary Injunction (ECF No. 115); grant Defendants’ Motion to Dissolve the Preliminary Injunction (ECF No. 120); grant in part and deny in part Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint or, in the Alternative, Defendants’ Motion for Summary Judgment (ECF No. 158), construed as a
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Case 1:17-cv-02459-GLR Document 263 Filed 08/20/19 Page 68 of 68 motion to dismiss; and deny without prejudice Plaintiffs’ Cross-Motion for Summary Judgment (ECF No. 163). A separate Order follows. Entered this 20th day of August, 2019.
/s/ George L. Russell, III United States District Judge
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 Case 1:17-cv-02459-GLR Document 267 Filed 09/03/19 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

BROCK STONE, et al.,

:

Plaintiffs,

:

v.

:

Civil Action No. GLR-17-2459

DONALD J. TRUMP, et al.,

:

Defendants.

:

MEMORANDUM OPINION

THIS MATTER is before the Court on Plaintiffs’1 Motion to Lift Stay of

Compliance with the Magistrate Judge’s Memorandum Opinion and Order (ECF No. 239)

and Defendants’2 Motion for Reconsideration, Motion to Continue Stay of Compliance

with the Magistrate Judge’s Memorandum Opinion and Order, and Request for an

Administrative Stay (ECF No. 257). The Motions are ripe for disposition, and no hearing

is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court

will grant in part and deny in part Defendants’ Motion and deny Plaintiffs’ Motion as moot.

1 Plaintiffs are: Airman First Class Seven Ero George, Teddy D’Atri, Ryan Wood, Niko Branco, John Doe 2, Jane Roe 1, and John Doe 3.
2 Defendants are: President Donald J. Trump, Secretary of Defense Mark Esper, Acting Secretary of the Army Ryan McCarthy, Secretary of the Navy Richard Spencer, Secretary of the Air Force Heather Wilson, Acting Secretary of Homeland Security Kevin McAleenan, and Commandant of the U.S. Coast Guard Karl L. Schultz.

Case 1:17-cv-02459-GLR Document 267 Filed 09/03/19 Page 2 of 17
I. BACKGROUND3 On May 4, 2018, the Court referred this case to a United States Magistrate Judge (“USMJ”) for all discovery. (ECF No. 152). On June 15, 2018, Plaintiffs filed a Motion to Compel Supplemental Interrogatory Answers and Production (“Motion to Compel”). (ECF No. 177-1). In their Motion to Compel, Plaintiffs sought deliberative materials regarding: (1) President Trump’s July 2017 Tweets and the August 2017 Memorandum4; (2) the Panel; and (3) the Implementation Plan and President Trump’s acceptance of the Implementation Plan. (Pls.’ Mot. Compel at 1, ECF No. 177-1). At the same time, Plaintiffs filed a Motion for a Judicial Determination of Privilege Claims, (ECF No. 178) (sealed), regarding a PowerPoint presentation that the Army inadvertently produced and Defendants sought to claw back on the theory that it is protected by deliberative process privilege, (Defs.’ Objs. Mag. Judge’s Mem. Op. & Order at 5, ECF No. 209). On June 18, 2018, Defendants filed a Motion for a Protective Order to preclude discovery directed at President Trump and other sources concerning presidential communications and deliberations. (ECF No. 179). On August 14, 2018, the USMJ issued a Memorandum Opinion and Order granting Plaintiffs’ Motion to Compel, granting in part and denying in part Defendants’ Motion for a Protective Order, and dismissing as moot Plaintiffs’ Motion for Judicial Determination
3 The Court provided additional factual background in its November 30, 2018 and August 20, 2019 Memorandum Opinions (ECF Nos. 227, 263). The Court repeats only facts relevant to the pending Motions.
4 Capitalized terms retain their definitions from the Court’s August 20, 2019 Memorandum Opinion.
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of Privilege. (Aug. 14, 2018 Mem. Op. [“USMJ Mem. Op.”] at 11, ECF No. 204; Aug. 14, 2018 Order, ECF No. 205). The USMJ granted Plaintiffs’ Motion to Compel because there were no justifiable reasons to stay discovery. (USMJ Mem. Op. at 4). Applying In re Subpoena Duces Tecum Served on Office of Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998), the USMJ concluded that deliberative process privilege does not apply in this case given that government intent “is at the very heart of this litigation.” (USMJ Mem. Op. at 5–6). The USMJ dismissed Plaintiffs’ Motion for Judicial Determination of Privilege Claims as moot because the USMJ determined that deliberative process privilege does not apply to Plaintiffs’ discovery requests. (Id. at 11). Finally, balancing deference to the Executive with Plaintiffs’ need for discovery, the USMJ granted Defendants’ Motion for a Protective Order as to the President but not as to individuals with whom the President communicates. (Id. at 9–11).
The USMJ ordered Defendants to produce: (1) Deliberative materials regarding the President’s July 2017 [T]weets and August 2017 Memorandum; (2) Deliberative materials regarding the activities of the [Panel] and its working groups . . . tasked with developing a plan to study and implement the President’s decision; and (3) Deliberative materials regarding the DoD’s [I]mplementation Plan and the President’s acceptance of the Plan in his March 23[, 2018] Memorandum, including any participation or interference in that process by antitransgender [activists] and lobbyists.
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(Id. at 3). The USMJ also stayed discovery directed at President Trump pending the Court’s resolution of Defendants’ Motion to Dismiss President Trump as a party to this case. (Id. at 10–11).
On August 17, 2018, Defendants filed a Motion to Stay Compliance with the Magistrate Judge’s Discovery Order. (ECF No. 208). In their Motion, Defendants requested that the Court stay compliance with the USMJ’s August 14, 2018 Order pending the Court’s resolution of their Objections to the Order. (Defs.’ Mot. Stay Compliance Mag. Judge Mem. Op. & Order at 1, ECF No. 208). Defendants filed their Objections to the Magistrate Judge’s Discovery Order on August 28, 2018. (ECF No. 209).
On August 30, 2018, the parties filed a Joint Motion to Suspend Certain Deadlines. (ECF No. 210). In the Motion, the parties requested that the Court suspend the discovery deadline because of the pending Motions before the Court. (Jt. Mot. Suspend Certain Deadlines at 2, ECF No. 210). On September 10, 2018, the Court granted the parties’ Motion and suspended the discovery deadline, discovery-related motions deadline, and dispositive pre-trial motions deadline. (Sept. 10, 2018 Order, ECF No. 213).
On November 30, 2018, the Court issued a Memorandum Opinion and Order overruling Defendants’ Objections. (ECF Nos. 227, 228). With regard to Defendants’ Objections related to deliberative process privilege, the Court concluded that the USMJ did not act contrary to law when he applied In re Subpoena Duces Tecum to determine that the “deliberative process privilege does not apply to the documents Plaintiffs requested because the government’s intent is at the heart of the issue in this case.” (Nov. 30, 2018 Mem. Op. at 15–16, ECF No. 227). The Court further concluded that even if the USMJ had
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applied the balancing test from Cipollone v. Liggett Group Inc., 812 F.2d 1400 (table), 1987 WL 36515 (4th Cir. 1987) (per curiam), the USMJ “would have reached the same conclusion.” (Id. at 16). The Court also rejected Defendants’ contention, based on Trump v. Hawaii, 138 S.Ct. 2392 (2018), that the Cipollone balancing test did not weigh in favor of disclosing the documents because government intent is not at issue. (Id.). The Court noted that Trump v. Hawaii involved a facially neutral policy, whereas this case involves a facially discriminatory policy. (Id. at 16–17). As a result, the Court concluded that the deference afforded to the government policy in Trump v. Hawaii did not apply in this case. (Id. at 17). The Court overruled Defendants’ Objections related to the clawback of an inadvertently produced PowerPoint document because it affirmed the USMJ’s determination that deliberative process privilege did not apply to Plaintiffs’ requested discovery. (Id.).
The Court also overruled Defendants’ Objections to the USMJ’s factual findings that: (1) the Panel would not have existed but for President Trump’s Tweets; (2) the circumstances surrounding military readiness and deployability could not have changed so dramatically between 2016 and 2018 to warrant the creation of a new policy; and (3) the Implementation Plan bans transgender persons from military service. (Id. at 9). The Court concluded that these findings of fact were reasonable and supported by evidence in the record. (Id. at 9–10).5
5 The Court also concluded that the USMJ did not err in granting Defendants’ Motion for a Protective Order only as to President Trump, and, as a result, overruled Defendants’ Objections as to this ruling. (Nov. 30, 2018 Mem. Op. at 19). The Court clarified, however, that the USMJ’s August 14, 2018 Order “encompass[ed]
5

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Although the Court overruled Defendants’ Objections and affirmed the USMJ’s August 14, 2018 Order, it stayed enforcement of the Order pending a decision from the United States Court of Appeals for the Ninth Circuit in In re Donald J. Trump, No. 1872159 (9th Cir.), which sought a writ of mandamus in Karnoski v.Trump, No. 17-cv-01297 (W.D.Wash.), because that case involved similar discovery issues. (Id.).
On January 31, 2019, Plaintiffs filed their Motion to Lift Stay of Compliance with the Magistrate Judge’s Memorandum Opinion and Order. (ECF No. 239). Defendants filed their Opposition on February 14, 2019. (ECF No. 243). On February 28, 2019, Plaintiffs filed a Reply. (ECF No. 247).
The Ninth Circuit issued its decision in Karnoski on June 16, 2019. Karnoski v. Trump, 926 F.3d 1180, 1206 (9th Cir. 2019). The Circuit Court granted Defendants’ request for a writ of mandamus and vacated the district court’s discovery order. Id. at 1207. The Ninth Circuit applied the balancing test from FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984), id. at 1206, which the United States Court of Appeals for the Fourth Circuit applied in Cipollone, 1987 WL 36515. This test requires the Court to balance four factors to determine whether the litigant’s “need for [deliberative] materials and the need for accurate fact-finding override the government’s interest in nondisclosure.” Karnoski, 926 F.3d at 1206 (quoting Warner, 742 F.2d at 1161). Those factors are: (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
communications both to and from the President.” (Id.). Defendants do not seek reconsideration of this part of the Court’s Memorandum Opinion and Order.
6

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frank and independent discussion regarding contemplated policies and decisions.” Id. (quoting Warner, 742 F.2d at 1161).
The Ninth Circuit noted that the second and third factors favor the Karnoski plaintiffs because “[t]he evidence sought is primarily, if not exclusively, under Defendants’ control, and the government—the Executive—is a party to and the focus of the litigation.” Id. With regard to the first factor, however, the Ninth Circuit noted that the record was not sufficiently developed for the Court to assess the relevance of the requested discovery. Id. As to the fourth factor, the Ninth Circuit stated that it “deserves careful consideration[ ] because the military’s interest in full and frank communication about policymaking raises serious—although not insurmountable—national defense interests.” Id. To this end, the Ninth Circuit explained, “Documents involving the most senior executive branch officials . . . may require greater deference. (They may, of course, also be the most relevant.).” Id.
The Ninth Circuit noted that the district court “appear[ed] to have conducted a single deliberative process privilege analysis covering all withheld documents, rather than considering whether the analysis should apply differently to certain categories.” Id. It clarified that, in applying the balancing test, “the district court should consider classes of documents separately when appropriate.” Id. The Circuit Court placed the burden on the Karnoski defendants to “persuasively argue that a more granular analysis would be proper,” and if they succeeded, “the district court should undertake it.” Id.
On June 27, 2019, Defendants filed their Motion for Reconsideration, Motion to Continue to Stay Compliance with the Magistrate Judge’s Memorandum Opinion and
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Order, and Request for an Administrative Stay. (ECF No. 257). Plaintiffs filed their Opposition on July 22, 2019. (ECF No. 260). On August 16, 2019, Defendants filed their Reply. (ECF No. 262).
II. DISCUSSION A. Standard of Review
The Federal Rules of Civil Procedure include three Rules that permit a party to move for reconsideration. Rule 54(b) governs motions to reconsider interlocutory orders. See Fayetteville Inv’rs v. Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th Cir. 1991) (finding that the district court properly reconsidered interlocutory order under Rule 54(b)). This Rule provides that interlocutory orders “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed.R.Civ.P. 54(b).
Although the standard used to alter or amend a final judgment pursuant to Rule 59(e) is not binding in an analysis of Rule 54(b) motions, see Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), the Court will use the Rule 59(e) standard as guidance for evaluating Defendants’ Motion, see Harper v. Anchor Packing Co., Nos. GLR-12-460 & GLR-12-462, 2014 WL 3828387, at *1 (D.Md. Aug. 1, 2014). Pursuant to Rule 59(e), a district court may alter or amend a final judgment only under three circumstances: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305
8

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F.3d 284, 290 (4th Cir. 2002) (quoting Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)). “A motion for reconsideration is ‘not the proper place to relitigate a case after the court has ruled against a party, as mere disagreement with a court’s rulings will not support granting such a request.’” Lynn v. Monarch Recovery Mgmt., Inc., 953 F.Supp.2d 612, 620 (D.Md. 2013) (quoting Sanders v. Prince George’s Pub. Sch. Sys., No. RWT 08CV501, 2011 WL 4443441, at *1 (D.Md. Sept. 21, 2011)).
Under Federal Rule of Civil Procedure 72(a), a district court “must consider timely objections” to a USMJ’s order on nondispositive, pretrial matters and “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Likewise, Local Rule 301.5 (D.Md. 2018) permits a district court to “reconsider, modify, or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” The Court “may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636 (2018). B. Analysis
1. Motion for Reconsideration Defendants contend that the Court should reconsider its November 30, 2018 Memorandum Opinion and Order in light of the Ninth Circuit’s decision in Karnoski, which clarified the application of the test to overcome deliberative process privilege. Defendants move for reconsideration of the Court’s overruling of their Objections to and affirmance of the USMJ’s August 14, 2018 Order granting Plaintiffs’ Motion to Compel and dismissing as moot Plaintiffs’ Motion for Judicial Determination of Privilege.
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Defendants also request that the Court reconsider its overruling of Defendants’ Objections related to certain factual findings the USMJ made. Plaintiffs oppose Defendants’ Motion.
a. Motion to Compel & Motion for Judicial Determination of Privilege
Defendants maintain, based on Karnoski, that the Court should apply the Cipollone balancing test on a case-by-case or document-by-document basis with special deference to the military. Plaintiffs counter that the Court applied the same balancing test Karnoski mandates and applied the appropriate level of deference. The Court agrees in part with Defendants.
In Karnoski, the Ninth Circuit clarified that the district court should have applied the balancing factors to “classes of documents separately when appropriate.” 926 F.3d at 1206. Here, the Court instead applied the factors to discovery in this case as a whole. (See Nov. 30, 2018 Mem. Op. at 16–17). Given the Ninth Circuit’s clarification in Karnoski, which the Court finds persuasive, the Court will grant Defendants’ Motion to the extent it seeks reconsideration of the Court’s application of the Cipollone factors. Accordingly, the Court will amend its November 30, 2018 Order to sustain Defendants’ Objections to the USMJ’s conclusion regarding the deliberative process privilege. The Court will vacate in part the USMJ’s August 14, 2018 Order and remand this case to the USMJ to apply the Cipollone factors to the categories of documents Plaintiffs seek in their Motion to Compel and permit Defendants to argue that Plaintiffs should more narrowly define the categories of documents. See Karnoski, 926 F.3d at 1206. The USMJ shall give due consideration to whether a document or category of documents requires greater deference depending on
10

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who is involved. See id. Consequently, the Court will also vacate the portion of the August 14, 2018 Order dismissing as moot Plaintiffs’ Motion for Judicial Determination of Privilege. Depending on the USMJ’s ruling on Plaintiffs’ Motion to Compel, the USMJ may need to consider Plaintiffs’ Motion for Judicial Determination of Privilege on the merits. The portion of the USMJ’s August 14, 2018 Order granting in part and denying in part Defendants’ Motion for a Protective Order remains in effect.
b. Factual Findings Defendants contend that the Court should reconsider the three factual findings it affirmed when it overruled Defendants’ Objections. The Court is not persuaded. First, Defendants challenge the USMJ’s factual finding that the DoD’s policy bans transgender persons from military service. (See USMJ Mem. Op. at 9). Defendants’ argument removes this phrase from the context of the Court’s discussion. The Court made this statement when rebutting Defendants’ argument that the Implementation Plan is based on a medical condition—gender dysphoria—and not transgender status. (See Nov. 30, 2018 Mem. Op. at 10). As the Court stated in its August 20, 2019 Memorandum Opinion, “the Implementation Plan discriminates on the basis of transgender status, not a medical condition.” (Aug. 20, 2019 Mem. Op. at 57, ECF No. 263). While the Implementation Plan may not ban all transgender persons from military service, it does ban individuals based on their transgender status. Thus, the Implementation Plan does indeed ban transgender persons from military service. Second, Defendants take issue with the USMJ’s factual finding that the circumstances surrounding military readiness and deployability could not have changed so
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dramatically between 2016 and 2018 so as to warrant a new policy. (See USMJ Mem. Op. at 6). In support of their argument, Defendants point to the United States Court of Appeals for the D.C. Circuit’s opinion in Doe 2 v. Shanahan, 755 F.App’x 19, 23 (D.C. Cir. 2019), which stated that the Implementation Plan was the result of “the creation of a panel of military and medical experts, the consideration of new evidence gleaned from the implementation of the [Open Service Directive] on the service of transgender individuals . . . , and a reassessment of the priorities of the group that produced the [Open Service Directive].” Id. at 23. The D.C. Circuit made this statement in the context of discussing the differences between the August 2017 Memorandum and the Implementation Plan; the Court was not addressing whether there was a change in circumstances regarding military readiness and deployability between 2016 and 2018 that would warrant the creation of a new transgender service policy. Thus, the Court still finds the USMJ’s factual finding reasonable.
Third, Defendants request that the Court reconsider its decision overruling Objections to the USMJ’s factual finding that the Panel would not have existed but for President Trump’s Tweets. (See USMJ Mem. Op. at 6–7). Defendants cite Judge Williams’ concurring opinion in Doe 2 v. Shanahan, 917 F.3d 694 (D.C. Cir. 2019) (Williams, J., concurring in the result), to support their argument. Specifically, Judge Williams noted that “President Trump’s July–August 2017 directives came a month after, and were consistent with, Secretary Mattis’s prior memorandum” and that Secretary Mattis delayed accessions under the Open Service Directive to have “additional time to evaluate more carefully the impact” of the Open Service Directive. Id. at 729. Secretary Mattis’s June 30, 2017
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Memorandum delaying accessions did not, however, mention establishing a panel of experts to study the issue, and it was not until a month-and-a-half after President Trump announced the Ban on Twitter and formalized it in his August 2017 Memorandum—and a full two-and-a-half months after Secretary Mattis’s Memorandum delaying accessions— that Secretary Mattis announced the formation of the Panel to study the issue of transgender service. Thus, as the Court previously concluded, this timeline of events would “make it reasonable to conclude that the Panel . . . was born of President Trump’s Tweets.” (Nov. 30, 2018 Mem. Op. at 9). The Court sees no reason to disturb this factual finding at this juncture.
The Court will, therefore, deny Defendants’ Motion as to the factual findings. 2. Motion to Continue Stay & Request for Administrative Stay Defendants request that the Court continue the stay of compliance with the USMJ’s August 14, 2018 Order and request that it enter an administrative stay. Plaintiffs, unsurprisingly, oppose the stay requests. “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Donnelly v. Branch Banking & Trust Co., 971 F.Supp.2d 495, 501 (D.Md. 2013) (quoting Landis v. N. America Co., 299 U.S. 248, 254 (1936)). The Court considers the following factors when determining whether to grant a stay: (1) “the length of the requested stay”; (2) “the hardship that the movant would face if the motion were denied”; (3) “the burden a stay would impose on the nonmovant”; and (4) “whether the stay would promote judicial economy by avoiding duplicative litigation.” Id. at 501–
13

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02 (quoting In re Mut. Funds Inv. Litig., No. MDL 1586, 2011 WL 3819608, at *1 (D.Md. Aug. 25, 2011)). On a motion to stay discovery pending an interlocutory appeal, the movant “‘bears the burden of establishing its need’ for a stay and does not enjoy an automatic stay as a right.” District of Columbia v. Trump, 344 F.Supp.3d 828, 843 (D.Md. 2018) (quoting Clinton v. Jones, 520 U.S. 681, 708 (1997)).
With regard to the hardship factor, Defendants maintain that the disclosure of documents revealing Defendants’ internal deliberations on military policy would cause irreparable harm, and therefore, the Court should continue the stay. Defendants’ argument assumes, however, that the Court would not reconsider its ruling affirming the USMJ’s Order and would not modify that Order. Because the Court will vacate the part of the August 14, 2018 Order granting Plaintiffs’ Motion to Compel and remand this case to the USMJ to determine whether Plaintiffs have overcome Defendants’ assertions of deliberative process privilege, Defendants will not, at this point in time, be forced to produce the documents they contend will result in irreparable harm. This factor, therefore, weighs against continuing the stay.
Defendants next contend that a stay pending review of their Motion for Reconsideration will not harm Plaintiffs because Plaintiffs have moved for summary judgment, and even if they would be harmed, the potential harm to Defendants in disclosing the documents far outweighs any harm to Plaintiffs. Defendants’ argument misses the mark. On August 20, 2019, the Court denied without prejudice Plaintiffs’ Motion for Summary Judgment because discovery was necessary to determine the level of deference, if any, the Court should apply to the Implementation Plan. (Aug. 20, 2019 Mem. Op. at
14

Case 1:17-cv-02459-GLR Document 267 Filed 09/03/19 Page 15 of 17
58). As Plaintiffs correctly note, the materials they seek are important to their case “in the event their pending motion for summary judgment is not granted.” (Pls.’ Opp’n Defs.’ Mot. Reconsid. [“Pls.’ Opp’n”] at 29, ECF No. 260). That Plaintiffs have had to wait more than a year for discovery to move forward in this case has imposed a burden on them. Now that the Court has denied Plaintiffs’ Motion for Summary Judgment without prejudice, discovery should move forward. In addition, as the Court addressed above, the Court will vacate the part of the USMJ’s Order granting Plaintiffs’ Motion to Compel, and therefore, Defendants will not be forced to produce documents they contend are covered by the deliberative process privilege. Thus, the burden on Plaintiffs counsels against continuing the stay.
As to the length of the requested stay, Defendants contend that a stay pending review of their Motion for Reconsideration and appellate review, if any, would be of a reasonable duration. Plaintiffs counter that a stay would further delay discovery while Defendants seek a writ of mandamus. The Court agrees with Plaintiffs. When the Court entered its Order staying discovery on November 30, 2018, it anticipated that the stay “should be brief, given that the Ninth Circuit heard oral argument on the issue” about a month earlier. (Nov. 30, 2018 Mem. Op. at 21). But the Ninth Circuit did not issue its opinion until June 16, 2019—more than eight months later. Although the Court does not know how long it would take for the Fourth Circuit to issue an opinion on a petition for writ of mandamus in this case, based on the Ninth Circuit’s timeline, it doubts that the length of the stay would be reasonable. Further, Defendants may not even seek a writ of mandamus from the Fourth Circuit—they repeatedly state that they will only do so if
15

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necessary. Thus, any stay the Court enters would be based on the possibility that Defendants may seek appellate review—a prospect that seems highly unlikely given that the Court will vacate the portion of the USMJ’s Order granting Plaintiffs’ Motion to Compel and remand to the USMJ for further discovery proceedings.
Finally, Defendants assert that a stay would promote judicial economy because it would prevent them from having to seek an emergency stay in the Fourth Circuit pending their potential petition for writ of mandamus. Plaintiffs counter that “[g]ranting a stay delaying compliance with the [USMJ]’s Order . . . in anticipation of some future, potential related litigation would not further the Court’s interest in judicial economy.” (Pls.’ Opp’n at 31). As the Court discussed above, discovery has already been delayed in this case and Defendants’ petition for writ of mandamus is only a possibility, not a certainty. Thus, a continuation of the stay may not even been necessary. In addition, on August 20, 2019, the Court denied without prejudice Plaintiffs’ Motion for Summary Judgment because more discovery is necessary. Continuing the stay, therefore, would further delay resolution of this case, which would not promote judicial economy.
In short, the Court concludes that an extension of the stay of compliance with the USMJ’s August 14, 2018 Order is not warranted. For the same reasons the Court declines to continue the stay of compliance with the USMJ’s August 14, 2018 Order, the Court will deny Defendants’ request for an administrative stay. Plaintiffs, however, consent to a fortyeight-hour extension of the stay of Defendants’ compliance with the USMJ’s Order to seek a stay from the Fourth Circuit pending any petition for writ of mandamus. Accordingly, the Court will grant a limited, forty-eight-hour extension of the stay of compliance with
16

Case 1:17-cv-02459-GLR Document 267 Filed 09/03/19 Page 17 of 17

the USMJ’s August 14, 2018 Order for Defendants to seek a stay from the Fourth Circuit if they choose to do so. After forty-eight hours, the stay will automatically lift and discovery in this case will be remanded to the USMJ for further proceedings consistent with this Opinion. Because the Court will lift the stay of compliance with the USMJ’s Order, the Court will deny Plaintiffs’ Motion as moot.
III. CONCLUSION For the foregoing reasons, the Court will grant in part and deny in part Defendants’ Motion for Reconsideration, Motion to Continue to Stay Compliance with the Magistrate Judge’s Memorandum Opinion and Order, and Request for an Administrative Stay (ECF No. 257) and deny as moot Plaintiffs’ Motion to Lift Stay of Compliance with the Magistrate Judge’s Memorandum Opinion and Order (ECF No. 239). A separate Order follows.

Entered this 3rd day of September, 2019.

/s/ George L. Russell, III United States District Judge

17

 
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 3UHVVUHSRUWVLQGLFDWHWKDW3UHVLGHQW7UXPS¶VPRWLYDWLRQVLQDEUXSWO\DQQRXQFLQJ DWUDQVJHQGHUEDQZHUHODUJHO\SROLWLFDOUHIOHFWLQJDGHVLUHWRSODFDWHOHJLVODWRUVDQGDGYLVHUV ZKREHDUDQLPXVDQGPRUDOGLVDSSURYDOWRZDUGPHQDQGZRPHQZKRDUHWUDQVJHQGHU5DFKHO %DGH -RVK'DZVH\Inside Trump’s Snap Decision to Ban Transgender Troops3ROLWLFR-XO\ 30KWWSZZZSROLWLFRFRPVWRU\WUXPSWUDQVJHQGHUPLOLWDU\EDQ EHKLQGWKHVFHQHVsee also, e.g7RP3RUWHUTransgender Military Ban: The Rise of Anti-LGBT Hate Groups in Trump’s White House1HZVZHHN-XO\30 KWWSZZZQHZVZHHNFRPDQWLOJEWKDWHJURXSVWUDQVJHQGHUPLOLWDU\EDQWUXPS $VDZLQ6XHEVDHQJHWDOTrump Bows to Religious Right, Bans Trans Troops7KH'DLO\%HDVW -XO\30KWWSZZZWKHGDLO\EHDVWFRPWUXPSERZVWRUHOLJLRXVULJKWEDQV WUDQVWURRSV
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Fifty-Six Retired Generals and Admirals Warn that President Trump’s Anti-Transgender Tweets,
if Implemented, Would Degrade Military Readiness3DOP&WU$XJ
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EDQLILPSOHPHQWHGZRXOGFDXVHsignificant disruptionsGHSULYHWKHPLOLWDU\RIPLVVLRQFULWLFDO WDOHQWDQGFRPSURPLVHWKHLQWHJULW\RIWUDQVJHQGHUWURRSVZKRZRXOGEHIRUFHGWROLYHDOLHDV ZHOODVQRQWUDQVJHQGHUSHHUVZKRZRXOGEHIRUFHGWRFKRRVHEHWZHHQUHSRUWLQJWKHLUFRPUDGHV RUGLVREH\LQJSROLF\$VDUHVXOWthe proposed ban would degrade readiness>@´HPSKDVHV DGGHG
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:KHQ,ZDVEOHHGLQJWRGHDWKLQP\%ODFN+DZNKHOLFRSWHUDIWHU, ZDV VKRW GRZQ , GLGQ¶W FDUH LI WKH $PHULFDQ WURRSV ULVNLQJ WKHLU OLYHV WR KHOS VDYH PH ZHUH JD\ VWUDLJKW WUDQVJHQGHU EODFN ZKLWH RUEURZQ$OOWKDWPDWWHUHGZDVWKH\GLGQ¶WOHDYHPHEHKLQG,I\RX DUHZLOOLQJWRULVN\RXUOLIHIRURXUFRXQWU\DQG\RXFDQGRWKHMRE \RX VKRXOG EH DEOH WR VHUYH²QR PDWWHU \RXU JHQGHU LGHQWLW\ RU VH[XDORULHQWDWLRQ See6HQ7DPP\'XFNZRUWK',OODuckworth Statement on Reports Trump Administration Directing DOD to Discriminate Against Transgender Servicemembers$XJ KWWSVZZZGXFNZRUWKVHQDWHJRYQHZVSUHVVUHOHDVHVGXFNZRUWKVWDWHPHQWRQUHSRUWVWUXPS DGPLQLVWUDWLRQGLUHFWLQJGRGWRGLVFULPLQDWHDJDLQVWWUDQVJHQGHUVHUYLFHPHPEHUV  )LQDOO\3UHVLGHQW7UXPSFODLPHGWKDWDOORZLQJWUDQVJHQGHUVHUYLFHPHPEHUVWR FRQWLQXHVHUYLFHZRXOGEHWRRH[SHQVLYH7KH5$1'5HSRUW¶VVWXG\IRXQGWRWKHFRQWUDU\ 1DPHO\³HYHQLQWKHPRVWH[WUHPHVFHQDULRWKDWZHZHUHDEOHWRLGHQWLI\XVLQJWKHSULYDWH KHDOWKLQVXUDQFHGDWDZHH[SHFWRQO\DSHUFHQWPLOOLRQRXWRIELOOLRQLQFUHDVHLQ >DFWLYHFRPSRQHQW@KHDOWKFDUHVSHQGLQJ´5$1'5HSRUWDW%\FRQWUDVWWRWDOPLOLWDU\ VSHQGLQJRQHUHFWLOHG\VIXQFWLRQPHGLFLQHVDPRXQWVWRPLOOLRQDQQXDOO\ZKLFKRQ LQIRUPDWLRQDQGEHOLHILVDOPRVWIRUW\WLPHVWKHFRVWRIJHQGHUG\VSKRULDUHODWHGPHGLFDOFDUHIRU DFWLYHGXW\WUDQVJHQGHUVHUYLFHPHPEHUVLQ3DWULFLD.LPHDoD Spends $84M a Year on Viagra, Similar Meds0LOLWDU\7LPHV)HEKWWSZZZPLOLWDU\WLPHVFRPSD\ EHQHILWVPLOLWDU\EHQHILWVKHDOWKFDUHGRGVSHQGVPD\HDURQYLDJUDVLPLODU PHGV  $Q$XJXVWUHSRUWE\WKH3DOP&HQWHUFRQFOXGHGWKDWLPSOHPHQWLQJWKH 7UDQVJHQGHU6HUYLFH0HPEHU%DQZRXOGFRVWPLOOLRQ See$DURQ%HONLQHWDODischarging
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Transgender Troops Would Cost $960 Million3DOP&HQWHU$XJavailable at  KWWSZZZSDOPFHQWHURUJZSFRQWHQWXSORDGVFRVWRIILULQJWUDQVWURRSVSGI
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/s/ Peter J. Komorowski III  'HERUDK$-HRQ%DU1R 'DYLG5RFDK%DU1R $0(5,&$1&,9,//,%(57,(681,21)281'$7,21 2)0$5</$1' &OLSSHU0LOO5RDG %DOWLPRUH0' 7HOHSKRQH )D[ MHRQ#DFOXPGRUJ URFDK#DFOXPGRUJ  -RVKXD$%ORFN &KDVH%6WUDQJLR -DPHV(VVHNV /HVOLH&RRSHU $0(5,&$1&,9,//,%(57,(681,21 )281'$7,21 %URDG6WUHHWWK)ORRU 1HZ<RUN1< 7HOHSKRQH )D[ MEORFN#DFOXRUJ FVWUDQJLR#DFOXRUJ MHVVHNV#DFOXRUJ OFRRSHU#DFOXRUJ 
Attorneys for Plaintiffs 

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