U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:17-cv-01297-MJP

Karnoski et al v. Trump et al Assigned to: Judge Marsha J. Pechman Case in other court: 9th Circuit Court of Appeals, 17-
36009 9th Circuit Court of Appeals, 1835347
9th Circuit Court of Appeals, 1872159 9th Circuit Court of Appeals, 2070365 Cause: 28:451 Employment Discrimination

Date Filed: 08/28/2017 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

Special Master James P. Donohue

Plaintiff Ryan Karnoski

represented by Camilla B Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 W. ADAMS ST. CHICAGO, IL 60603-6208 312-663-4413 Email: ctaylor@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel I Siegfried KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-3813 Email: daniel.siegfried@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James F. Hurst

KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-5230 Email: james.hurst@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan M Heinz KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-2000 Email: jheinz@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 W. ADAMS ST. STE 2600 CHICAGO, IL 60603-6208 312-663-4413 Email: kingelhart@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC 3500 OAK LAWN AVENUE STE 500 DALLAS, TX 75219 214-302-2216 Email: pcastillo@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter E Perkowski OUTSERVE-SLDN, INC C/O PERKOWSKI LEGAL

445 S. FIGUEROA STREET STE 3100 LOS ANGELES, CA 90071 213-426-2137 Email: peter@perkowskilegal.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 4221 WILSHIRE BLVD STE 280 LOS ANGELES, CA 90010-3512 213-382-7600 Email: prenn@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-2000 Email: sam.ikard@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sasha J Buchert LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 1875 I STREET NW 5TH FLOOR WASHINGTON, DC 20006 202-999-8083 Email: sbuchert@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton KIRKLAND & ELLIS (IL) 300 NORTH LASALLE

CHICAGO, IL 60654 312-862-3501 Email: stephen.patton@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-2205 Email: vanessa.barsanti@kirkland.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 WALL STREET 19TH FLOOR NEW YORK, NY 10005-3919 212-809-8585 Email: ccharles@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes NEWMAN & DU WORS LLP 2101 FOURTH AVENUE, SUITE 1500 SEATTLE, WA 98121 206-274-2837 Email: jason@newmanlaw.com ATTORNEY TO BE NOTICED
Jon W Davidson LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 4221 WILSHIRE BOULEVARD STE 280 LOS ANGELES, CA 90010-3512 213-382-7600

Email: jdavidson@lambdalegal.org TERMINATED: 01/12/2018 PRO HAC VICE
Joseph B Tyson KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-2615 Email: ben.tyson@kirkland.com TERMINATED: 01/30/2020 PRO HAC VICE
Natalie Nardecchia LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 4221 WILSHIRE BLVD STE 20 LOS ANGELES, CA 90010-3512 213-382-7600 Email: nnardecchia@lambdalegal.org TERMINATED: 05/16/2018 PRO HAC VICE
Rachel J Horvitz NEWMAN & DU WORS LLP 2101 FOURTH AVENUE, SUITE 1500 SEATTLE, WA 98121 206-274-2800 Email: rachel@newmanlaw.com ATTORNEY TO BE NOTICED
Samantha Everett DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-622-3150 Fax: 206-757-7700 Email: severett@grsm.com TERMINATED: 05/16/2018
Scott Lerner

Plaintiff Staff Sergeant Cathrine Schmid

KIRKLAND & ELLIS (IL) 300 NORTH LASALLE CHICAGO, IL 60654 312-862-2863 Email: scott.lerner@kirkland.com TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. (GA) 730 PEACHTREE STREET NE STE 640 ATLANTA, GA 30308 404-897-1880 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED
Derek Alan Newman NEWMAN & DU WORS LLP 2101 FOURTH AVENUE, SUITE 1500 SEATTLE, WA 98121 206-274-2800 Fax: 206-274-2801 Email: Derek@newmanlaw.com ATTORNEY TO BE NOTICED
represented by Camilla B Taylor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Jordan M Heinz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter E Perkowski (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sasha J Buchert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE

Plaintiff
D.L. by his next friend and mother formerly known as K.G.

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Camilla B Taylor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan M Heinz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter E Perkowski (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sasha J Buchert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson

Plaintiff
Laura Garza TERMINATED: 07/31/2019

(See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Camilla B Taylor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan M Heinz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter E Perkowski (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sasha J Buchert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE

Plaintiff Human Rights Campaign

Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Camilla B Taylor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan M Heinz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter E Perkowski (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sasha J Buchert (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson

Plaintiff Gender Justice League

(See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Camilla B Taylor (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan M Heinz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter E Perkowski (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sasha J Buchert (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address)

Plaintiff
Lindsey Muller Chief Warrant Officer

TERMINATED: 05/16/2018
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018

Plaintiff
Terece Lewis Petty Officer First Class

PRO HAC VICE
Peter E Perkowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE

Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Peter E Perkowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address)

Plaintiff
Phillip Stephens Petty Officer Second Class

TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Peter E Perkowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn

Plaintiff
Megan Winters Petty Officer Second Class

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson (See above for address)

Plaintiff

TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Peter E Perkowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

Jane Doe

represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Peter E Perkowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Conner Callahan TERMINATED: 07/24/2019

Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson (See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Peter E Perkowski

Plaintiff
American Military Partner Association

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul D Castillo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sam Ikard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen R Patton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Camilla B Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Derek Alan Newman (See above for address) ATTORNEY TO BE NOTICED
James F. Hurst (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason B Sykes (See above for address) ATTORNEY TO BE NOTICED
Jon W Davidson (See above for address) TERMINATED: 01/12/2018 PRO HAC VICE
Jordan M Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph B Tyson

(See above for address) TERMINATED: 01/30/2020 PRO HAC VICE
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Nardecchia (See above for address) TERMINATED: 05/16/2018 PRO HAC VICE
Peter E Perkowski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Horvitz (See above for address) ATTORNEY TO BE NOTICED
Samantha Everett (See above for address) TERMINATED: 05/16/2018
Sasha J Buchert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE
Tara Borelli (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff State of Washington

represented by Daniel I Siegfried (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Barsanti (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Chalia I. Stallings-Ala'ilima ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104-3188 206-464-7744 Email: chalias@atg.wa.gov ATTORNEY TO BE NOTICED
Colleen M Melody ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104-3188 206-464-7744 Email: colleen.melody@atg.wa.gov ATTORNEY TO BE NOTICED
Eric A Mentzer ATTORNEY GENERAL'S OFFICE (40126-OLY) 7141 CLEANWATER DRIVE SW PO BOX 40111 OLYMPIA, WA 98504-0126 360-709-6470 Email: eric.mentzer@atg.wa.gov TERMINATED: 04/11/2019

La Rond Baker KING COUNTY DPD 710 SECOND AVE STE 200 SEATTLE, WA 98104 206-263-6884 Email: lbaker@kingcounty.gov TERMINATED: 08/05/2019
Scott Lerner (See above for address) TERMINATED: 05/31/2019 PRO HAC VICE

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

represented by Andrew E Carmichael US DEPARTMENT OF JUSTICE 1100 L STREET NW, STE 12108 WASHINGTON, DC 20530 202-514-3346 Email: andrew.e.carmichael@usdoj.gov ATTORNEY TO BE NOTICED
Gerald Brinton Lucas US DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE, NW WASHINGTON, DC 20531 202-305-7920 Email: brinton.lucas2@usdoj.gov
James Ryan Powers US DEPT OF JUSTICE 1100 L STREET NW WASHINGTON, DC 20005 202-353-0543 Email: james.r.powers@usdoj.gov ATTORNEY TO BE NOTICED
Joshua E Gardner UNITED STATES DEPARTMENT OF JUSTICE 1100 L STREET NW, ROOM 12200

Defendant United States of America

WASHINGTON, DC 20530 202-305-7583 Email: joshua.e.gardner@usdoj.gov ATTORNEY TO BE NOTICED
Matthew Skurnik US DEPARTMENT OF JUSTICE (CIVIL- FEDERAL PROGRAMS BRANCH) 1100 L STREET NW WASHINGTON, DC 20530 202-616-8188 Email: matthew.skurnik@usdoj.gov ATTORNEY TO BE NOTICED
Ryan Bradley Parker US DEPT. OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASS. AVE., NW WASHINGTON, DC 20001 202-514-4336 Email: ryan.parker@usdoj.gov TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Gerald Brinton Lucas (See above for address)
James Ryan Powers (See above for address) ATTORNEY TO BE NOTICED
Joshua E Gardner (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Ryan Bradley Parker

Defendant James N Mattis in his official capacity as Secretary of Defense TERMINATED: 07/31/2019
Defendant United States Department of Defense

(See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Gerald Brinton Lucas (See above for address)
Joshua E Gardner (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Gerald Brinton Lucas (See above for address)
James Ryan Powers (See above for address) ATTORNEY TO BE NOTICED
Joshua E Gardner (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Ryan Bradley Parker

Defendant Mark Esper
Defendant Kevin K McAleenan

(See above for address) TERMINATED: 06/07/2018
represented by James Ryan Powers (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Paul R McHugh Dr.

V. Intervenor Defendant Elaine C. Duke TERMINATED: 07/31/2019
Intervenor Defendant Department of Homeland Security
Amicus Retired Military Officers and Former National Security Officials

represented by Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Ramsey Scott HILLIS CLARK MARTIN & PETERSON 999 3RD AVENUE, SUITE 4600 SEATTLE, WA 98104 206-623-1745 Fax: 206-623-7789

Amicus
Commonwealth of Massachusetts together with California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and the District of Columbia

Email: michael.scott@hcmp.com TERMINATED: 03/26/2018 LEAD ATTORNEY
Michael J Ewart HILLIS CLARK MARTIN & PETERSON 999 3RD AVENUE, SUITE 4600 SEATTLE, WA 98104 206-623-1745 Fax: 206-623-7786 Email: jake.ewart@hcmp.com ATTORNEY TO BE NOTICED
represented by Kimberly A. Parr OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS ONE ASHBURTON PLACE, 20TH FLOOR BOSTON, MA 02108 617-963-2489 Email: kimberly.parr@state.ma.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph R Shaeffer MACDONALD HOAGUE & BAYLESS 705 SECOND AVE STE 1500 SEATTLE, WA 98104-1745 206-622-1604 Email: Joe@mhb.com ATTORNEY TO BE NOTICED
Katherine C. Chamberlain MACDONALD HOAGUE & BAYLESS 705 SECOND AVE STE 1500 SEATTLE, WA 98104-1745 206-622-1604

Amicus
Constitutional Accountability Center

Email: katherinec@mhb.com ATTORNEY TO BE NOTICED
represented by Ashwin P Phatak CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18TH STREET, NW STE 501 WASHINGTON, DC 20036 202-296-6889 Email: ashwin@theusconstitution.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brianne J. Gorod CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18TH STREET, NW STE 501 WASHINGTON, DC 20036 202-296-6889 Email: brianne@theusconstitution.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David H Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18TH STREET, NW STE 501 WASHINGTON, DC 20036 202-296-6889 Email: david@theusconstitution.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth B Wydra CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18TH STREET, NW

Amicus
Legal Voice formerly known as Northwest Women's Law Center

STE 501 WASHINGTON, DC 20036 202-296-6889 Email: elizabeth@theusconstitution.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William B. Stafford PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-6217 Fax: 206-359-7217 Email: WStafford@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abha Khanna PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8312 Email: akhanna@perkinscoie.com ATTORNEY TO BE NOTICED
represented by Amanda J Beane PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Fax: FAX 359-9000 Email: abeane@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa M. Stone LEGAL VOICE 907 PINE ST STE 500 SEATTLE, WA 98101

206-682-9552 Fax: 206-682-9556 Email: lstone@legalvoice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara L. Ainsworth THE SIA LEGAL TEAM 1517 12TH AVENUE, STE 101 SEATTLE, WA 98101 206-567-9234, EXT. 1006 Email: sara@sialegalteam.org TERMINATED: 09/12/2018 LEAD ATTORNEY
Cristina Sepe PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8758 Email: cristina.sepe@atg.wa.gov TERMINATED: 03/02/2020
Lauren Watts Staniar PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3316 Email: LStaniar@perkinscoie.com ATTORNEY TO BE NOTICED

Date Filed 08/28/2017

# Docket Text
1 COMPLAINT against All Defendants (Receipt # 0981-4994679) Attorney Derek Alan Newman added to party Laura Garza(pty:pla), Attorney Derek Alan Newman added to party Gender Justice League(pty:pla), Attorney Derek Alan Newman added to party Human Rights Campaign(pty:pla), Attorney Derek Alan Newman added to party Ryan Karnoski(pty:pla), Attorney Derek Alan Newman added to party Cathrine Schmid(pty:pla), filed by Laura Garza, Cathrine Schmid, Human Rights Campaign, Ryan Karnoski, Gender Justice League. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Newman, Derek) (Entered: 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

2 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Human Rights Campaign (Newman, Derek) (Entered: 08/28/2017)
3 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Gender Justice League (Newman, Derek) (Entered: 08/28/2017)
4 APPLICATION OF ATTORNEY Jon W. Davidson FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4995239 (Newman, Derek) (Entered: 08/28/2017)
5 APPLICATION OF ATTORNEY Jordan M. Heinz FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4995279 (Newman, Derek) (Entered: 08/28/2017)
6 APPLICATION OF ATTORNEY James F. Hurst FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4995289 (Newman, Derek) (Entered: 08/28/2017)
7 APPLICATION OF ATTORNEY Kara N. Ingelhart FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4995299 (Newman, Derek) (Entered: 08/28/2017)
8 APPLICATION OF ATTORNEY Natalie Nardecchia FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4995304 (Newman, Derek) (Entered: 08/28/2017)
9 APPLICATION OF ATTORNEY Peter E. Perkowski FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4995318 (Newman, Derek) (Entered: 08/28/2017)
10 APPLICATION OF ATTORNEY Peter C. Renn FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid

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

(Fee Paid) Receipt No. 0981-4995325 (Newman, Derek) (Entered: 08/28/2017)
11 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jon W Davidson for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, and Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 8/28/2017 (DS). (Entered: 08/28/2017)
12 ORDER re 5 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jordan M Heinz for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 8/28/2017 (DS). (Entered: 08/28/2017)
13 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney James F. Hurst for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/28/2017)
14 NOTICE of Appearance by attorney Tara Borelli on behalf of Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid. (Borelli, Tara) (Entered: 08/28/2017)
15 ORDER re 7 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kara N. Ingelhart for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, and

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

for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/28/2017)
16 ORDER re 8 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Natalie Nardecchia for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/28/2017)
17 ORDER re 9 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Peter E Perkowski for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/28/2017)
18 ORDER re 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Peter C Renn for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski,and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/28/2017)
Judge James L. Robart added. (RE) (Entered: 08/28/2017)
NOTICE TO FILER: SUMMONS FORM INCOMPLETE DEFENDANT ADDRESS BLOCK LEFT BLANK:The block for defendants name and address is blank. The block must contain at a

08/28/2017 08/29/2017 08/29/2017 08/29/2017 08/29/2017 08/30/2017
08/30/2017

minimum the defendants name. Please re-post your corrected summons(es) using the event Praecipe For A Summons under Other Documents. All summons(es) should be posted under this one event. Thank you. (RE) (Entered: 08/28/2017)
19 PRAECIPE TO ISSUE SUMMONS by Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(Newman, Derek) (Entered: 08/28/2017)
20 Summons(es) electronically issued as to defendant(s) James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Summons-US Attorney Hayes, # 2 Summons-US Attorney-Sessions, # 3 Summons-Mattis, # 4 Summons-Department of Defense)(RE) (Entered: 08/29/2017)
21 APPLICATION OF ATTORNEY Carl Charles FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4997512 (Newman, Derek) (Entered: 08/29/2017)
22 APPLICATION OF ATTORNEY Sasha J. Buchert FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4997569 (Newman, Derek) (Entered: 08/29/2017)
23 APPLICATION OF ATTORNEY Camilla B. Taylor FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid (Fee Paid) Receipt No. 0981-4997580 (Newman, Derek) (Entered: 08/29/2017)
24 ORDER re 21 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Carl Charles for Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/30/2017)
25 ORDER re 22 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Sasha J Buchert for Plaintiffs D.L., Laura Garza,

08/30/2017
09/01/2017 09/06/2017 09/14/2017 09/14/2017 09/14/2017

Gender Justice League, Human Rights Campaign, Ryan Karnoski and for Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/30/2017)
26 ORDER re 23 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Camilla B Taylor for Plaitiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski and Cathrine Schmid, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/30/2017)
Case Reassigned to Judge Marsha J. Pechman. Judge James L. Robart no longer assigned to the case. All future pleadings shall bear Case No. C17-1297MJP. (AD) (Entered: 09/01/2017)
27 NOTICE of Pendency of Other Action in District of Columbia, District of Maryland, Central District of California, case number in other court 17-cv-1597-CKK, 1:17-cv-02459-MJG, 17-cv-6516 ; filed by Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid. (Newman, Derek) (Entered: 09/06/2017)
28 AFFIDAVIT of Service of Summons and Complaint on United States Department of Defense by serving Denise Shellman, Paralegal, authorized to accept service on 8/30/2017, filed by Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid. (Newman, Derek) (Entered: 09/14/2017)
29 AFFIDAVIT of Service of Summons and Complaint on James N. Mattis, in his official capacity as Secretary of Defense, by serving Denise Shellman, Paralegal, authorized to accept service on 8/30/2017, filed by Plaintiffs D.L., Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Cathrine Schmid. (Newman, Derek) (Entered: 09/14/2017)
30 AMENDED COMPLAINT against All Defendants Attorney Samantha Everett added to party D.L.(pty:pla), Attorney Samantha Everett added

09/14/2017 09/14/2017

to party Laura Garza(pty:pla), Attorney Samantha Everett added to party Gender Justice League(pty:pla), Attorney Samantha Everett added to party Human Rights Campaign(pty:pla), Attorney Samantha Everett added to party Ryan Karnoski(pty:pla), Attorney Samantha Everett added to party Cathrine Schmid(pty:pla), Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party Lindsey Muller (pty:pla), Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party Terece Lewis (pty:pla), Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party Phillip Stephens (pty:pla, Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party Megan Winters (pty:pla), Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party Jane Doe (pty:pla), Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party Conner Callahan (pty:pla), Attorneys Samantha Everett, Derek Newman, Tara Borelli, Jon Davidson, Camilla Taylor, Peter Renn, Natalie Nardecchia, Sasha Buchert, Kara Ingelhart, Carl Charles, Peter Perkowski, James Hurst, and Jordan Heinz added to party American Military Partner Association (pty:pla), filed by Human Rights Campaign, Ryan Karnoski, D.L., Cathrine Schmid, Gender Justice League, Laura Garza, Lindsey Muller, Terece Lewis, Phillip Stephens, Megan Winters, Jane Doe, Conner Callahan, and American Military Partner Association (Everett, Samantha) Modified on 9/14/2017 (KB). (Entered: 09/14/2017)
NOTICE of Docket Text Modification re 30 Amended Complaint: Modified to correctly reflect additional parties added by Amended Complaint. (KB) (Entered: 09/14/2017)
31 MOTION to Proceed Under Pseudonym , filed by Plaintiff Jane Doe. (Attachments: # 1 Proposed Order) Noting Date 9/29/2017, (Everett, Samantha) (Entered: 09/14/2017)

09/14/2017 09/14/2017 09/14/2017
09/14/2017 09/14/2017 09/14/2017

32 MOTION for Preliminary Injunction , filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/6/2017, (Everett, Samantha) (Entered: 09/14/2017)
33 DECLARATION of Jane Doe filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 31 MOTION to Proceed Under Pseudonym , 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
34 DECLARATION of Samantha Everett filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Everett, Samantha) (Entered: 09/14/2017)
35 DECLARATION of Ryan Karnoski filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
36 DECLARATION of Catherine Schmid filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
37 DECLARATION of D.L. filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters

09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017

re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
38 DECLARATION of Lindsey Muller filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
39 DECLARATION of Terece Lewis filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
40 DECLARATION of Phillip Stephens filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
41 DECLARATION of Megan Winters filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
42 DECLARATION of Conner Callahan filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
43 DECLARATION of Sarah Warbelow filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
44 DECLARATION of Danni Askini filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza,

09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/15/2017

Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
45 DECLARATION of Ashley Broadway filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
46 DECLARATION of Brad R. Carson filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Everett, Samantha) (Entered: 09/14/2017)
47 DECLARATION of George R. Borwn filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Everett, Samantha) (Entered: 09/14/2017)
48 DECLARATION of Raymond Edwin Mabus, Jr. filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Everett, Samantha) (Entered: 09/14/2017)
49 DECLARATION of Admiral Michael Mullen filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction (Everett, Samantha) (Entered: 09/14/2017)
50 NOTICE of Appearance by attorney Ryan Bradley Parker on behalf of Defendants James N Mattis, Donald J. Trump, United States Department

09/16/2017 09/21/2017 09/22/2017 09/22/2017
09/25/2017 09/25/2017

of Defense, United States of America. (Parker, Ryan) (Entered: 09/15/2017)
51 AFFIDAVIT of Service of Summons and Complaint on United States of America, via Attorney General Jeff Sessions, by serving Andre Harrington, agent, authorized to accept service on 8/30/2017, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Everett, Samantha) (Entered: 09/16/2017)
52 Stipulated MOTION for a Briefing Schedule, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. Noting Date 9/21/2017, (Parker, Ryan) (Entered: 09/21/2017)
53 ORDER granting 52 Stipulated Motion Setting Briefing Schedule re Plaintiffs' 32 motion for preliminary injunction and Defendants' motion to dismiss. Defendants' opposition to Plaintiffs' motion 32 and filing of motion to dismiss due 10/16/2017; Plaintiffs' reply in support of their motion 32 and opposition to Defendants' motion due 11/1/2017; Defendants' reply in support of their motion to dismiss due 11/9/2017. Signed by Judge Marsha J. Pechman. (PM) (Entered: 09/22/2017)
54 AFFIDAVIT of Service of Summons and Complaint on United States of America, via Annette Hayes US Attorney for the Western District of Washington, by serving on the government entity "US Attorney's Office" to Patricia Peterut, a deputy administrative officer on 8/30/2017, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Everett, Samantha) (Entered: 09/22/2017)
55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp), filed by Intervenor Plaintiff State of Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/13/2017, (Baker, La Rond) (Entered: 09/25/2017)
56 DECLARATION of La Rond Baker filed by Intervenor Plaintiff State of Washington re 55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Baker, La Rond) (Entered: 09/25/2017)

09/25/2017 10/06/2017 10/09/2017
10/09/2017
10/09/2017
10/10/2017 10/10/2017

57 DECLARATION of David Postman filed by Intervenor Plaintiff State of Washington re 55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp) (Baker, La Rond) (Entered: 09/25/2017)
58 STIPULATION AND PROPOSED ORDER Extending the Time to Respond to the State of Washington's Motion to Intervene by parties (Parker, Ryan) (Entered: 10/06/2017)
59 APPLICATION OF ATTORNEY Vanessa Barsanti FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Intervenor Plaintiff State of Washington (Fee Paid) Receipt No. 09815045532 (Newman, Derek) (Entered: 10/09/2017)
60 APPLICATION OF ATTORNEY Scott Lerner FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Intervenor Plaintiff State of Washington (Fee Paid) Receipt No. 09815045547 (Newman, Derek) (Entered: 10/09/2017)
61 APPLICATION OF ATTORNEY Daniel I. Siegfried FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Intervenor Plaintiff State of Washington (Fee Paid) Receipt No. 09815045548 (Newman, Derek) (Entered: 10/09/2017)
62 ORDER granting Plaintiff Jane Doe's 31 Motion to Proceed under Pseudonym, signed by Judge Marsha J. Pechman. (SWT) (Entered: 10/10/2017)
63 ORDER re 59 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Vanessa Barsanti for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Intervenor Plaintiff State of Washington by Clerk William M McCool. No document associated with this docket entry, text only.

10/10/2017
10/10/2017
10/10/2017 10/11/2017 10/16/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/10/2017)
64 ORDER re 60 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Scott Lerner for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Intervenor Plaintiff State of Washington by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/10/2017)
65 ORDER re 61 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Daniel I Siegfried for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Intervenor Plaintiff State of Washington by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/10/2017)
66 STIPULATION AND ORDER extending time to respond to the State of Washington's 55 MOTION to Intervene. Response due 10/16/2017; Reply due 10/20/2017. Signed by Judge Marsha J. Pechman. (PM) (Entered: 10/10/2017)
67 STIPULATION AND PROPOSED ORDER Specifying Page Limitations for the Parties' Combined Filings by parties (Parker, Ryan) (Entered: 10/11/2017)
68 STIPULATION AND ORDER re 32 MOTION for Preliminary Injunction. Defendants' combined motion to dismiss and opposition to Plaintiffs' motion for a preliminary injunction shall not exceed forty-five

10/16/2017 10/16/2017 10/16/2017 10/16/2017 10/16/2017

(45) pages; and Plaintiffs' combined opposition to Defendants' motion to dismiss and reply in support of their motion for a preliminary injunction shall not exceed thirty-five (35) pages. Signed by Judge Marsha J. Pechman. (PM) (Entered: 10/16/2017)
69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington. (Attachments: # 1 Exhibit Interim Guidance, # 2 Proposed Order) Noting Date 11/9/2017, (Parker, Ryan) Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to Motion for PI. (PM). (Entered: 10/16/2017)
70 DECLARATION of Timothy J. McCracken filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington re 69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction (Parker, Ryan) Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to motion for P.I. (PM). (Entered: 10/16/2017)
71 DECLARATION of Phillip A. Layman filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington, re 69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction (Parker, Ryan) Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to motion for P.I. (PM). (Entered: 10/16/2017)
72 DECLARATION of Jonathan Easley filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington re 69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction (Parker, Ryan) Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to motion for P.I. (PM). (Entered: 10/16/2017)
73 DECLARATION of Gregory C. Huffman filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington re 69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction (Parker, Ryan)

10/16/2017 10/16/2017 10/16/2017 10/16/2017 10/17/2017 10/18/2017

Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to motion for P.I. (PM). (Entered: 10/16/2017)
74 DECLARATION of Nicholas Good filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington re 69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction (Parker, Ryan) Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to motion for P.I. (PM). (Entered: 10/16/2017)
75 DECLARATION of Susan Bryerjoyner filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington re 69 MOTION to Dismiss and Opposition to Plaintiffs' 32 Motion for a Preliminary Injunction (Parker, Ryan) Modified on 10/17/2017: edited text to strike State of WA as a filer per phone call from counsel (PM). Modified on 10/17/2017 to add link to motion for P.I. (PM). (Entered: 10/16/2017)
76 RESPONSE, by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, to 55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp). (Parker, Ryan) (Entered: 10/16/2017)
77 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp). (Everett, Samantha) (Entered: 10/16/2017)
NOTICE of Docket Text Modification re 75 Declaration, 73 Declaration, 69 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction, 72 Declaration, 74 Declaration, 70 Declaration, 71 Declaratio n: edited text to strike State of WA as a filer per phone call from counsel. (PM) (Entered: 10/17/2017)
78 NOTICE of Hearing 32 MOTION for Preliminary Injunction : ORAL ARGUMENT/Motion Hearing set for 11/28/2017 at 10:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed thirty minutes for argument, including rebuttal. (RM) (Entered: 10/18/2017)

10/19/2017 10/19/2017 10/20/2017 10/24/2017 10/24/2017 11/01/2017
11/01/2017

79 NOTICE of Rescheduled Hearing 32 MOTION for Preliminary Injunction : ORAL ARGUMENT/Motion Hearing set for 11/21/2017 at 1:30 PM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed thirty minutes for argument, including rebuttal. (RM) (Entered: 10/19/2017)
80 NOTICE of Request for Video Recording of motion for preliminary injunction on 11/21/2017 at 1:30 PM before Marsha J. Pechman. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 10/27/2017. Please Note: This form must not be filed electronically with the Court. (RM) (Entered: 10/19/2017)
81 REPLY, filed by Intervenor Plaintiff State of Washington, TO RESPONSE to 55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp) (Baker, La Rond) (Entered: 10/20/2017)
82 NOTICE of Hearing 55 MOTION to Intervene Attorney La Rond Baker added to party State of Washington(pty:intvp) : ORAL ARGUMENT/Motion Hearing set for 11/14/2017 at 02:00 PM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed twenty minutes for argument, including rebuttal. (RM) (Entered: 10/24/2017)
83 NOTICE of Request for Video Recording of Motion to Intervene on 11/14/2017 at 2:00 PM before Marsha J. Pechman. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 11/3/2017. Please Note: This form must not be filed electronically with the Court. (RM) (Entered: 10/24/2017)
84 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 32 MOTION for Preliminary Injunction , 69 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction. (Everett, Samantha) (Entered: 11/01/2017)
85 DECLARATION of Mark J. Eitelberg filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction , 69 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction (Attachments: # 1 Exhibit A)(Everett, Samantha) (Entered: 11/01/2017)

11/01/2017
11/06/2017 11/06/2017 11/07/2017 11/08/2017 11/09/2017 11/09/2017 11/09/2017

86 DECLARATION of Raymond Edwin Mabus, Jr. filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 32 MOTION for Preliminary Injunction , 69 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction (Everett, Samantha) (Entered: 11/01/2017)
87 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the motion to intervene on 11/14/2017 at 2:00 PM. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (RM) (Entered: 11/06/2017)
88 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the Motion for Preliminary Injunction on 11/21/2017 at 1:30 PM. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (RM) (Entered: 11/06/2017)
89 NOTICE/MOTION of Supplemental Authority and Request for a Stay of Proceedings ; filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Exhibit Doe v. Trump - Opinion and Order)(Parker, Ryan) Modified on 11/8/2017 to turn into a motion per direction of chambers (PM). (Entered: 11/07/2017)
Noting Date Set per direction of chambers re 89 NOTICE/MOTION of Supplemental Authority and Request for a Stay of Proceedings: Noting Date 11/10/2017. (PM) (Entered: 11/08/2017)
90 REPLY, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, TO RESPONSE to 69 MOTION to Dismiss and Opposition to Plaintiffs' Motion for a Preliminary Injunction (Parker, Ryan) (Entered: 11/09/2017)
91 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 89 MOTION. (Everett, Samantha) (Entered: 11/09/2017)
92 Supplemental DECLARATION of Jane Doe filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip

Stephens, Megan Winters re 89 MOTION (Everett, Samantha) (Entered: 11/09/2017)

11/09/2017 93 RESPONSE, by Intervenor Plaintiff State of Washington, to 89 MOTION. (Baker, La Rond) (Entered: 11/09/2017)

11/11/2017

94 MINUTE ORDER by Judge Marsha J. Pechman. RE: 89 MOTION filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump. The following MINUTE ORDER is made by direction of the Court, the Honorable Marsha J. Pechman, United States District Judge: Defendants filed a request to stay proceedings on November 7, 2017. Dkt. #89. The Court has reviewed Defendants' request (Dkt. #89), Plaintiffs' and the State of Washington's responses (Dkts. #9193), and will DENY Defendants' request. A further written order will follow. (YH) (Entered: 11/11/2017)

11/14/2017

95 NOTICE of Appearance by attorney Gerald Brinton Lucas on behalf of Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Lucas, Gerald) (Entered: 11/14/2017)

11/14/2017

96 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: LaRond Baker, Peter Renn, Derek Newman, Kara Ingelhart; Def Counsel: Gerald Brinton Lucas, Andrew Carmichael; CR: Debbie Zurn; Motion Hearing held on 11/14/2017 55 MOTION to Intervene filed by State of Washington. Oral argument presented. As stated orally on the record, the motion to intervene is GRANTED. A written order will follow in ten days. (RM) (Entered: 11/15/2017)

11/17/2017 97 STATEMENT re 32 MOTION for Preliminary Injunction by Intervenor Plaintiff State of Washington (Baker, La Rond) (Entered: 11/17/2017)

11/20/2017 98 ORDER denying Defendants' 89 Motion for Stay of Proceedings signed by Judge Marsha J. Pechman. (PM) (Entered: 11/20/2017)

11/21/2017

99 NOTICE of Appearance by attorney Colleen M Melody on behalf of Intervenor Plaintiff State of Washington. (Melody, Colleen) (Entered: 11/21/2017)

11/21/2017

100 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Peter Renn, Natalie Nardecchia, Derek Newman, LaRond Baker, Colleen Melody; Def Counsel: Gerald Brinton Lucas, Ryan Bradley Parker; CR: Andrea Ramirez; Motion to Dismiss and Preliminary Injunction Hearing held on 11/21/2017. Oral argument presented. Court will issue written opinion by 12/8/2017. (RM) (Entered: 11/21/2017)

11/27/2017 101 ORDER granting State of Washington's 55 Motion to Intervene. Signed by Judge Marsha J. Pechman. (PM) (Entered: 11/27/2017)

12/08/2017

102 MINUTE ORDER authorized by Judge Marsha J. Pechman. On Monday, December 11, 2017 the Court will issue a ruling on Plaintiffs' 32 MOTION for Preliminary Injunction. (PM) (Entered: 12/08/2017)

12/11/2017

103 ORDER granting in part and denying in part Defendants' 69 Motion to Dismiss; Order granting Plaintiffs' 32 Motion for Preliminary Injunction. 1. The Court GRANTS Defendants' Motion to Dismiss with respect to Plaintiffs' procedural due process claim; 2. The Court DENIES Defendants' Motion to Dismiss with respect to Plaintiffs' equal protection, substantive due process, and First Amendment claims; 3. The Court GRANTS Plaintiffs' Motion for a Preliminary Injunction, and hereby enjoins Defendants and 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 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. This Preliminary Injunction shall take effect immediately and shall remain in effect pending resolution of this action on the merits or further order of this Court. Signed by Judge Marsha J. Pechman. (PM) (Entered: 12/11/2017)

12/14/2017

104 COMPLAINT Intervenor-Plaintiff against defendant(s) James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, Elaine C. Duke, Department of Homeland Security (Receipt # 0981-5128967: FEE REFUNDED, Not Required), filed by State of Washington. (Attachments: # 1 Summons Elaine C. Duke, # 2 Summons James N. Mattis, # 3 Summons Donald Trump, # 4 Summons United States of America, # 5 Summons US Department of Defense, # 6 Summons US Department of Homeland Security)(Baker, La Rond) Modified on 12/15/2017 to reflect the filing fee was refunded; Counsel notified (PM). (Entered: 12/14/2017)

12/14/2017

105 NOTICE OF APPEAL to Ninth Circuit (17-36009) re 103 Order on Motion for Preliminary Injunction,,,,, Order on Motion to Dismiss,,,, by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Parker, Ryan) Modified on 12/19/2017 to add CCA #(CDA). (Entered: 12/14/2017)

12/15/2017

106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal , filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United

12/15/2017

States of America. (Attachments: # 1 Proposed Order) Noting Date 12/29/2017, (Parker, Ryan) (Entered: 12/15/2017)
107 DECLARATION of Lernes J. Hebert filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal (Parker, Ryan) (Entered: 12/15/2017)

12/15/2017 12/15/2017 12/15/2017

NOTICE of Docket Text Modification re 104 Complaint in Intervention by State of Washington: Filing fee refunded; not required. Counsel has been notified. (PM) (Entered: 12/15/2017)
108 Summons Electronically Issued as to defendant Elaine C. Duke (main document) (Attachments: # 1 Summons James N. Mattis, # 2 Summons Donald Trump, # 3 Summons United States of America, # 4 Summons US Department of Defense, # 5 Summons US Department of Homeland Security) (PM) (Entered: 12/15/2017)
109 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion to Dismiss/Preliminary Injunction held on 11/21/2017 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.

Release of Transcript Restriction set for 3/15/2018, (AR) (Entered: 12/15/2017)

12/15/2017

110 CERTIFICATE OF SERVICE by Intervenor Plaintiff State of Washington re 104 Complaint,, Intervenor-Plaintiff (Baker, La Rond) (Entered: 12/15/2017)

12/15/2017

111 USCA Case Number 17-36009 for 105 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump. (CDA) (Entered: 12/19/2017)

12/15/2017

112 ORDER of USCA (17-36009) as to 105 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump (CDA) (Entered: 12/19/2017)

12/20/2017

113 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by American Military Partner Association (Everett, Samantha) (Entered: 12/20/2017)

12/27/2017

114 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal . (Everett, Samantha) (Entered: 12/27/2017)

12/27/2017

115 DECLARATION of G. R. Brown filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal (Everett, Samantha) (Entered: 12/27/2017)

12/27/2017

116 DECLARATION of D. L. James filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal (Everett, Samantha) (Entered: 12/27/2017)

12/27/2017

117 DECLARATION of R. E. Mabus filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal (Everett, Samantha) (Entered: 12/27/2017)

12/27/2017

118 DECLARATION of S. Everett filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski,

Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Everett, Samantha) (Entered: 12/27/2017)

12/27/2017

119 RESPONSE, by Intervenor Plaintiff State of Washington, to 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal . (Baker, La Rond) (Entered: 12/27/2017)

12/27/2017

120 DECLARATION of La Rond Baker filed by Intervenor Plaintiff State of Washington re 106 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit Exhibit A)(Baker, La Rond) (Entered: 12/27/2017)

12/29/2017

121 ORDER denying Defendants' 106 Motion for Clarification and Motion for Partial Stay of Preliminary Injunction Pending Appeal, signed by Judge Marsha J. Pechman. (SWT) (Entered: 12/29/2017)

12/30/2017

122 ORDER of USCA (NOT THE MANDATE 17-36009) as to 105 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump. DISMISSED (CDA) (Entered: 01/02/2018)

01/03/2018

123 ORDER of USCA (17-36009) as to 105 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump. The mandate shall issue 7 days after the filing date of this order. (CDA) (Entered: 01/04/2018)

01/05/2018

124 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 2/16/2018, FRCP 26f Conference Deadline is 2/2/2018, Initial Disclosure Deadline is 2/9/2018, by Judge Marsha J. Pechman. (RM) (Entered: 01/05/2018)

01/10/2018

125 APPLICATION OF ATTORNEY Joseph B. Tyson FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Fee Paid) Receipt No. 0981-5157687 (Newman, Derek) (Entered: 01/10/2018)

01/10/2018

126 ORDER re 125 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Joseph B Tyson for American Military Partner Association,Joseph B Tyson for Plaintiffs Conner Callahan, D.L., Jane

Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens and for Megan Winters, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/10/2018)

01/11/2018 01/12/2018 01/25/2018 01/25/2018

127 MANDATE of USCA (17-36009) as to 105 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump. The judgment of this Court, entered December 30, 2017, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. DISMISSED. (SG) (Entered: 01/11/2018)
128 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Jon W Davidson for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Everett, Samantha) (Entered: 01/12/2018)
129 MOTION for Summary Judgment , filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/16/2018, (Newman, Derek) (Entered: 01/25/2018)
130 DECLARATION of Ryan Karnoski filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

131 DECLARATION of Cathrine Schmid filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018 132 DECLARATION of D.L. filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender

Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

133 DECLARATION of Lindsey Muller filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

134 DECLARATION of Terece Lewis filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

135 DECLARATION of Phillip Stephens filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

136 DECLARATION of Megan Winters filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

137 DECLARATION of Conner Callahan filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

138 DECLARATION of Jane Doe filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

139 DECLARATION of Sarah Warbelow filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

140 DECLARATION of Danni Askini filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

141 DECLARATION of Ashley Broadway filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

142 DECLARATION of Brad R. Carson filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

143 DECLARATION of George R. Brown filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

144 DECLARATION of Raymond Edwin Mabus, Jr. filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

145 DECLARATION of Eric Fanning filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

146 DECLARATION of Deborah Lee James filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

147 DECLARATION of Mark J. Eitelberg filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

148 DECLARATION of Admiral Michael Mullen filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Newman, Derek) (Entered: 01/25/2018)

01/25/2018

149 DECLARATION of Derek Newman filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Newman, Derek) (Entered: 01/25/2018)

01/25/2018

150 MOTION for Summary Judgment , filed by Intervenor Plaintiff State of Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/16/2018, (Baker, La Rond) (Entered: 01/25/2018)

01/26/2018

151 NOTICE of Appearance by attorney Michael J Ewart on behalf of Amicus Retired Military Officers and Former National Security Officials. (Ewart, Michael) (Entered: 01/26/2018)

01/26/2018 01/29/2018 01/29/2018

152 Agreed MOTION for Leave to File Amicus Brief in Support of Plaintiffrs' Motion for Summary Judgment, filed by Amicus Retired Military Officers and Former National Security Officials. (Attachments: # 1 Proposed Order, # 2 Exhibit A) Noting Date 1/26/2018, (Ewart, Michael) (Entered: 01/26/2018)
Attorney Michael S Scott added as counsel for Retired Military Officers and Former National Security Officials per 151 Notice of Appearance. (PM) Modified on 1/29/2018: Michael S. Scott entered in error; removed from docket. (PM). (Entered: 01/29/2018)
Attorney Michael Ramsey Scott added for Retired Military Officers and Former National Security Officials. Attorney Michael S Scott terminated as he was added in error: per 151 Notice of Appearance. (PM) (Entered: 01/29/2018)

01/30/2018 01/31/2018 01/31/2018

153 ORDER granting Retired Military Officers and Former National Security Officials' 152 Agreed Motion for Leave to File to File Amicus Brief in Support of Plaintiffs' Motion for Summary Judgment. The amicus brief attached as Exhibit A to the Motion for Leave is hereby deemed filed. Signed by Judge Marsha J. Pechman. (PM) (Entered: 01/31/2018)
154 NOTICE of Appearance by attorney Katherine C. Chamberlain on behalf of Amicus Commonwealth of Massachusetts. (Chamberlain, Katherine) (Entered: 01/31/2018)
155 NOTICE of Appearance by attorney Joseph R Shaeffer on behalf of Amicus Commonwealth of Massachusetts. (Shaeffer, Joseph) (Entered: 01/31/2018)

01/31/2018 01/31/2018

156 APPLICATION OF ATTORNEY Kimberly A. Parr FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Commonwealth of Massachusetts (Fee Paid) Receipt No. 0981-5182970 (Chamberlain, Katherine) (Entered: 01/31/2018)
157 ORDER re 156 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kimberly A. Parr for Amicus Commonwealth of Massachusetts, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/31/2018)

01/31/2018

158 NOTICE of Appearance by attorney Abha Khanna on behalf of Amicus Constitutional Accountability Center. (Khanna, Abha) (Entered: 01/31/2018)

01/31/2018

159 APPLICATION OF ATTORNEY Ashwin P. Phatak FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Constitutional Accountability Center (Fee Paid) Receipt No. 0981-5184097 (Khanna, Abha) (Entered: 01/31/2018)

01/31/2018 01/31/2018 01/31/2018 01/31/2018
02/01/2018

160 APPLICATION OF ATTORNEY Brianne J. Gorod FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Constitutional Accountability Center (Fee Paid) Receipt No. 0981-5184104 (Khanna, Abha) (Entered: 01/31/2018)
161 APPLICATION OF ATTORNEY David H. Gans FOR LEAVE TO APPEAR PRO HAC VICE by Amicus Constitutional Accountability Center Receipt No. 0981-5184113 (Khanna, Abha) Modified on 2/1/2018 to edit receipt number. (RE) (Entered: 01/31/2018)
162 APPLICATION OF ATTORNEY Elizabeth B. Wydra FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Constitutional Accountability Center (Fee Paid) Receipt No. 0981-5184121 (Khanna, Abha) (Entered: 01/31/2018)
163 Agreed MOTION for Leave to File Brief of Amicus Curiae Constitutional Accountability Center in Support of Plaintiffs' 129 150 Motions for Summary Judgment, filed by Amicus Constitutional Accountability Center. (Attachments: # 1 Exhibit Brief of Amicus Curiae Consitutional Accountability Center in Support of Plaintiffs Motions for Summary Judgment, # 2 Proposed Order) Noting Date 1/31/2018, (Khanna, Abha) Modified on 2/1/2018 to add link to s/j motions (PM). (Entered: 01/31/2018)
164 ORDER re 159 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Ashwin P Phatak for Amicus Constitutional Accountability Center, by Clerk William M McCool. No document associated with this docket entry, text only.

02/01/2018

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/01/2018)
165 ORDER re 160 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Brianne J. Gorod for Amicus Constitutional Accountability Center, by Clerk William M McCool. No document associated with this docket entry, text only.

02/01/2018

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/01/2018)
166 ORDER re 161 Application. The Court ADMITS Attorney David H Gans for Amicus Constitutional Accountability Center, by Clerk William M McCool. No document associated with this docket entry, text only.

02/01/2018

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/01/2018)
167 ORDER re 162 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Elizabeth B Wydra for Amicus Constitutional Accountability Center, by Clerk William M McCool. No document associated with this docket entry, text only.

02/01/2018 02/01/2018 02/01/2018

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 02/01/2018)
Attorney William B. Stafford added as counsel for Constitutional Accountability Center per 158 Notice of Appearance. (PM) (Entered: 02/01/2018)
168 NOTICE of Appearance by attorney Lauren Watts Staniar, Amanda J Beane, Sara Ainsworth on behalf of Amicus Legal Voice f/k/a Northwest Women's Law Center. (Staniar, Lauren) (Entered: 02/01/2018)
169 Agreed MOTION for Leave to File Amicus Brief In Support of Plaintiffs' Motion for Summary Judgment, filed by Amicus Legal Voice f/k/a Northwest Women's Law Center. (Attachments: # 1 Proposed Order) Noting Date 2/1/2018, (Staniar, Lauren) (Entered: 02/01/2018)

02/01/2018 02/02/2018

170 Agreed MOTION for Leave to File Amicus Brief, filed by Amicus Commonwealth of Massachusetts. (Attachments: # 1 Proposed Order, # 2 Exhibit Proposed Amicus Brief) Noting Date 2/1/2018, (Parr, Kimberly) (Entered: 02/01/2018)
171 ORDER granting Amicus Curiae Constitutional Accountability Center's 163 Motion for Leave to File Brief of Amicus curiae. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/02/2018)

02/02/2018

172 ORDER granting amici Legal Voice's 169 Agreed Motion for Leave to File Amicus Curiae Brief. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/02/2018)

02/02/2018

173 APPLICATION OF ATTORNEY Cristina Sepe FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Legal Voice (Fee Paid) Receipt No. 0981-5186816 (Staniar, Lauren) (Entered: 02/02/2018)

02/02/2018

174 ORDER re 173 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Cristina Sepe for Legal Voice, by Clerk William M McCool. No document associated with this docket entry, text only.

02/05/2018 02/09/2018

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 02/02/2018)
175 ORDER granting Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and the District of Columbia's 170 Motion for Leave to File an Amicus Curiae Brief in support of Plaintiffs' and Intervenor-Plaintiff's motions for summary judgment. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/05/2018)
176 NOTICE of Hearing 129 MOTION for Summary Judgment , 150 MOTION for Summary Judgment : ORAL ARGUMENT/Motion Hearing set for 3/27/2018 at 10:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed 30 minutes for argument, including rebuttal. (RM) (Entered: 02/09/2018)

02/09/2018 02/12/2018 02/12/2018

177 NOTICE of request for video recording of oral argument/motion hearing scheduled for 3/27/2018 at 10:00 AM before Judge Marsha J. Pechman. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 2/14/2018. Please Note: This form must not be filed electronically with the Court. (RM) (Entered: 02/09/2018)
178 RESPONSE, by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, to 129 MOTION for Summary Judgment , 150 MOTION for Summary Judgment . (Parker, Ryan) (Entered: 02/12/2018)
179 DECLARATION of Ryan B. Parker filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 129 MOTION for Summary

02/12/2018
02/12/2018 02/14/2018 02/14/2018 02/16/2018 02/16/2018 02/16/2018

Judgment , 150 MOTION for Summary Judgment (Parker, Ryan) (Entered: 02/12/2018)
180 Joint MOTION for Protective Order , filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Declaration of Samantha Everett) Noting Date 2/23/2018, (Everett, Samantha) (Entered: 02/12/2018)
181 Joint MOTION for Order re: FED. R. EVID. 502(D), filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. Noting Date 2/12/2018, (Everett, Samantha) (Entered: 02/12/2018)
182 STIPULATED FED. R. EVID. 502(D) ORDER re: 181 Joint Motion for Order. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/14/2018)
183 STIPULATED UNIFORM PROTECTIVE ORDER AND CROSS-USE AGREEMENT PROTECTIVE ORDER re 180 Joint MOTION for Protective Order. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/14/2018)
184 JOINT STATUS REPORT signed by all parties estimated Trial Days: 510. Filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters.(Everett, Samantha) (Entered: 02/16/2018)
185 REPLY, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 129 MOTION for Summary Judgment (Everett, Samantha) (Entered: 02/16/2018)
186 DECLARATION of Jordan Heinz filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 129 MOTION for Summary Judgment (Attachments: # 1 Exhibit A)(Everett, Samantha) (Entered: 02/16/2018)

02/16/2018

187 REPLY, filed by Intervenor Plaintiff State of Washington, TO RESPONSE to 150 MOTION for Summary Judgment (Attachments: # 1 Declaration of La Rond Baker, # 2 Exhibit A, # 3 Exhibit B)(Baker, La Rond) (Entered: 02/16/2018)

02/20/2018

188 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the hearing on 129 MOTION for Summary Judgment & 150 MOTION for Summary Judgment set for 3/27/2018 at 10:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (RM) (Entered: 02/20/2018)

02/21/2018

189 ORDER denying Defendants' 178 Rule 56(d) Motion. Defendants are ORDERED to file any opposition to Plaintiffs' and Washington's 129 , 150 Motions for Summary Judgment within seven (7) days of the date of this Order. Thereafter, Plaintiffs and Washington will have seven (7) days to reply. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/21/2018)

02/22/2018

190 MOTION to Compel DEFENDANTS INITIAL DISCLOSURES, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 3/9/2018, (Everett, Samantha) (Entered: 02/22/2018)

02/22/2018

191 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 190 MOTION to Compel DEFENDANTS INITIAL DISCLOSURES (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Everett, Samantha) (Entered: 02/22/2018)

02/26/2018

192 ANSWER to 104 Complaint,, by James N Mattis, Donald J. Trump, United States Department of Defense, United States of America.(Parker, Ryan) (Entered: 02/26/2018)

02/26/2018

193 ANSWER to 30 Amended Complaint,,,,,,,,,, by James N Mattis, Donald J. Trump, United States Department of Defense, United States of America.(Parker, Ryan) (Entered: 02/26/2018)

02/28/2018

194 CROSS MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed

Order) Noting Date 3/23/2018, (Parker, Ryan) Modified on 3/2/2018 to identify this as a cross motion(PM). (Entered: 02/28/2018)

02/28/2018

195 DECLARATION of Maria Martinez filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment (Parker, Ryan) (Entered: 02/28/2018)

02/28/2018

196 DECLARATION of Jonathan Easley filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment (Parker, Ryan) (Entered: 02/28/2018)

02/28/2018

197 DECLARATION of Ryan Parker filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment (Parker, Ryan) (Entered: 02/28/2018)

03/02/2018

198 MINUTE ORDER re: Defendants' 194 Cross-MOTION for Partial Summary Judgment. Any response to the Cross-Motion filed by Plaintiffs shall be filed separately from their reply in support of their Motion for Summary Judgment, and shall be limited to no more than 12 pages. Defendants' reply shall not exceed 6 pages. Authorized by Judge Marsha J. echman. (PM) (Entered: 03/02/2018)

03/05/2018

199 RESPONSE, by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, to 190 MOTION to Compel DEFENDANTS INITIAL DISCLOSURES. (Parker, Ryan) (Entered: 03/05/2018)

03/05/2018

200 DECLARATION of Ryan B. Parker filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 190 MOTION to Compel DEFENDANTS INITIAL DISCLOSURES (Parker, Ryan) (Entered: 03/05/2018)

03/07/2018

201 REPLY, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 129 MOTION for Summary Judgment (Everett, Samantha) (Entered: 03/07/2018)

03/07/2018

202 REPLY, filed by Intervenor Plaintiff State of Washington, TO RESPONSE to 150 MOTION for Summary Judgment (Baker, La Rond) (Entered: 03/07/2018)

03/09/2018

203 REPLY, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 190 MOTION to Compel DEFENDANTS INITIAL DISCLOSURES (Everett, Samantha) (Entered: 03/09/2018)

03/14/2018 204 ORDER granting Plaintiffs' 190 Motion to Compel. Signed by Judge Marsha J. Pechman. (PM) (Entered: 03/14/2018)

03/19/2018

205 MOTION For Clarification And, If Necessary, For Reconsideration re 204 Order on Motion to Compel , filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. Noting Date 3/19/2018, (Parker, Ryan) (Entered: 03/19/2018)

03/19/2018

206 DECLARATION of Ryan B. Parker filed by Defendants Donald J. Trump, United States Department of Defense, United States of America re 205 MOTION For Clarification And, If Necessary, For Reconsideration re 204 Order on Motion to Compel (Attachments: # 1 Exhibit, # 2 Exhibit)(Parker, Ryan) (Entered: 03/19/2018)

03/19/2018

207 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment. (Everett, Samantha) (Entered: 03/19/2018)

03/19/2018

208 DECLARATION of Samantha Everett filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment (Attachments: # 1 Exhibit 1)(Everett, Samantha) (Entered: 03/19/2018)

03/19/2018

209 RESPONSE, by Intervenor Plaintiff State of Washington, to 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment. (Baker, La Rond) (Entered: 03/19/2018)

03/20/2018

210 ORDER denying Defendants' 205 Motion for Clarification and Reconsideration. The Court expects Defendants to comply with its Order (Dkt. No. 204 ) no later than 5:00 PM Pacific Daylight Time on March 22, 2018. Signed by Judge Marsha J. Pechman. (PM) (Entered: 03/20/2018)

03/22/2018

211 RESPONSE by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 210 Order on Motion for Miscellaneous Relief, (Parker, Ryan) (Entered: 03/22/2018)

03/23/2018

212 REPLY, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, TO RESPONSE to 194 MOTION for Partial Summary Judgment and Opposition to Plaintiffs' and Intervenor's Motions for Summary Judgment (Parker, Ryan) (Entered: 03/23/2018)

03/23/2018

213 NOTICE ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Parker, Ryan) (Entered: 03/23/2018)

03/23/2018

214 DECLARATION of Ryan B. Parker re 213 Notice-Other by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America (Attachments: # 1 Exhibit)(Parker, Ryan) (Entered: 03/23/2018)

03/23/2018

215 MOTION to Dissolve the Preliminary Injunction , filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 4/13/2018, (Parker, Ryan) (Entered: 03/23/2018)

03/23/2018

216 STRICKEN per direction of chambers. Declaration re-filed as Dkt. # 224 . DECLARATION of Ryan B. Parker filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 215 MOTION to Dissolve the Preliminary Injunction (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parker, Ryan) Modified on 4/3/2018 (PM). (Entered: 03/23/2018)

03/23/2018

217 MOTION for Protective Order , filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 4/6/2018, (Parker, Ryan) (Entered: 03/23/2018)

03/26/2018 03/26/2018

218 APPLICATION OF ATTORNEY Stephen R. Patton FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Fee Paid) Receipt No. 0981-5253044 (Newman, Derek) (Entered: 03/26/2018)
219 ORDER re 218 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Stephen R Patton for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, and Megan Winters, by Clerk William M McCool. No document associated with this docket entry, text only.

03/26/2018 03/27/2018
03/29/2018

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/26/2018)
220 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Michael Ramsey Scott for Amicus Retired Military Officers and Former National Security Officials. (Scott, Michael) (Entered: 03/26/2018)
221 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Joseph Tyson, Peter Renn, Steve Patton, Natalie Nardecchia, La Rond Baker; Def Counsel: Ryan Parker, Brett Shumate; CR: Debbie Zurn; Motion Hearing held on 3/27/2018 re 129 MOTION for Summary Judgment filed by Cathrine Schmid, Jane Doe, Megan Winters, Terece Lewis, Phillip Stephens, Gender Justice League, American Military Partner Association, Conner Callahan, Lindsey Muller, D.L., Ryan Karnoski, Laura Garza, Human Rights Campaign, re 150 MOTION for Summary Judgment filed by State of Washington. Oral argument presented. Court will issue written opinion after parties provide additional briefing on the new transgender policy memorandum issued 3/23/2018. Simultaneous briefing shall not exceed ten pages and is due within seven days. Defendants are ordered to refile and re-note their pending motions in the proper form and format as required by the local rules. (RM) (Entered: 03/27/2018)
222 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 3/27/2018 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 6/27/2018, (DZ) (Entered: 03/29/2018)

03/29/2018 03/29/2018 03/29/2018 04/03/2018

223 MOTION to Dissolve the Preliminary Injunction , filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 4/27/2018, (Parker, Ryan) (Entered: 03/29/2018)
224 DECLARATION of Ryan Parker filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 223 MOTION to Dissolve the Preliminary Injunction (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parker, Ryan) (Entered: 03/29/2018)
225 MOTION for Protective Order , filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 4/13/2018, (Parker, Ryan) (Entered: 03/29/2018)
226 SUPPLEMENT In Opposition to Plaintiffs' and Intervenor's 129 150 Motions for Summary Judgment by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America (Parker, Ryan) Modified on 4/4/2018 to create docket relationship to 129 , 150 . (PM). (Entered: 04/03/2018)

04/03/2018

227 SUPPLEMENT re 201 Reply to Response to Motion, 129 for Summary Judgment by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Everett, Samantha)

Modified on 4/4/2018 to create docket relationship to 129 motion.(PM). (Entered: 04/03/2018)

04/03/2018 228 SUPPLEMENT re 150 MOTION for Summary Judgment by Intervenor Plaintiff State of Washington (Baker, La Rond) (Entered: 04/03/2018)

04/10/2018

229 NOTICE of Appearance by attorney Jason Sykes on behalf of Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 04/10/2018)

04/11/2018

230 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 225 MOTION for Protective Order . (Attachments: # 1 Exhibit 1)(Sykes, Jason) (Entered: 04/11/2018)

04/11/2018

231 RESPONSE, by Intervenor Plaintiff State of Washington, to 225 MOTION for Protective Order . (Baker, La Rond) (Entered: 04/11/2018)

04/13/2018

232 REPLY, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, TO RESPONSE to 225 MOTION for Protective Order (Parker, Ryan) (Entered: 04/13/2018)

04/13/2018

233 ORDER granting in part and denying in part Plaintiffs' 129 Motion for Summary Judgment; granting in part and denying in part the State of Washington's 150 Motion for Summary Judgment; granting in part and denying in part Defendants' 194 Cross Motion for Partial Summary Judgment; striking Defendants' 223 Motion to Dissolve the Preliminary Injunction. The preliminary injunction previously entered otherwise remains in full force and effect. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/13/2018)

04/18/2018

234 MINUTE ORDER: The parties are ordered to file an updated joint status report no later than 5/4/2018. Authorized by Judge Marsha J. Pechman. (RM) (Entered: 04/18/2018)

04/19/2018

235 ORDER denying Defendants' 225 Motion for Protective Order and ordering discovery in the case to proceed. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/19/2018)

04/30/2018 236 NOTICE OF APPEAL to Ninth Circuit (18-35347) re 233 Order on Motion for Summary Judgment, Order on Motion for Partial Summary

Judgment,,, Order on Motion for Miscellaneous Relief, by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Parker, Ryan) Modified on 4/30/2018 to add CCA # (CDA). (Entered: 04/30/2018)

04/30/2018

237 USCA Case Number 18-35347 for 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump. (CDA) (Entered: 04/30/2018)

04/30/2018

238 MOTION to Stay Preliminary Injunction Pending Appeal, filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 5/18/2018, (Parker, Ryan) (Entered: 04/30/2018)

04/30/2018

239 DECLARATION of Ryan Parker filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit)(Parker, Ryan) (Entered: 04/30/2018)

05/02/2018

240 MINUTE ORDER re Defendants' 238 MOTION to Stay Preliminary Injunction Pending Appeal. The Court declines to issue an expedited ruling on the Motion, and will issue its ruling following the noting date. The response is due no later than May 14, 2018. The reply is due no later than May 18, 2018. Authorized by Judge Marsha J. Pechman. (TH) (Entered: 05/02/2018)

05/04/2018 241 JOINT STATUS REPORT signed by all parties estimated Trial Days: 510. (Sykes, Jason) (Entered: 05/04/2018)

05/09/2018

242 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *5-10 DAY* Bench Trial is set for 4/8/2019 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Joinder of Parties due by 6/6/2018, Amended Pleadings due by 6/18/2018, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 9/10/2018, Motions due by 10/10/2018, Discovery completed by 11/9/2018, The Court will not change the number of depositions per side at this time. Plaintiff may make a renewed request, if needed. Dispositive motions due by 12/10/2018, Motions in Limine due by 3/4/2019, Pretrial Order due by 3/27/2019, Trial briefs to be submitted by 3/27/2019, Proposed Findings of Fact and Conclusions of Law to be submitted by 3/27/2019, Pretrial Conference set for 3/29/2019 at 01:30 PM in Courtroom 14206 before Judge Marsha J. Pechman. (RM) (Entered: 05/09/2018)

05/10/2018

243 MOTION for Order to Show Cause , filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip

Stephens, Megan Winters. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/25/2018, (Sykes, Jason) (Entered: 05/10/2018)

05/10/2018

244 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 243 MOTION for Order to Show Cause (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sykes, Jason) (Entered: 05/10/2018)

05/10/2018

245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 5/25/2018, (Sykes, Jason) (Entered: 05/10/2018)

05/10/2018

246 DECLARATION of Daniel Siegfried filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28)(Sykes, Jason) (Entered: 05/10/2018)

05/10/2018

247 NOTICE of Difficult Filing re 246 Declaration,,, ; filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 05/10/2018)

05/11/2018

248 RESPONSE, by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America,

to 243 MOTION for Order to Show Cause . (Parker, Ryan) (Entered: 05/11/2018)

05/11/2018

249 DECLARATION of Ryan Parker filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 243 MOTION for Order to Show Cause (Attachments: # 1 Exhibit Defendants' Supplemental Initial Disclosures)(Parker, Ryan) (Entered: 05/11/2018)

05/11/2018

256 RECEIPT of Filing in Physical Form with the Clerk's Office: Thumb Drive (Exhibits 11-27, native format) re: 246 Declaration of Daniel Siegfried re: 245 Motion to Compel. (Placed on Clerk's Office filing shelf in one expando folder) (PM) (Entered: 05/14/2018)

05/14/2018

250 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 238 MOTION to Stay Preliminary Injunction Pending Appeal. (Sykes, Jason) (Entered: 05/14/2018)

05/14/2018

251 DECLARATION of George R. Brown filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Sykes, Jason) (Entered: 05/14/2018)

05/14/2018

252 DECLARATION of Brad R. Carson filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sykes, Jason) (Entered: 05/14/2018)

05/14/2018

253 DECLARATION of Lindsey Muller filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Sykes, Jason) (Entered: 05/14/2018)

05/14/2018

254 DECLARATION of Cathrine Schmid filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Sykes, Jason) (Entered: 05/14/2018)

05/14/2018

255 DECLARATION of Daniel Siegfried filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Sykes, Jason) (Entered: 05/14/2018)

05/14/2018

257 RESPONSE, by Intervenor Plaintiff State of Washington, to 238 MOTION to Stay Preliminary Injunction Pending Appeal. (Baker, La Rond) (Entered: 05/14/2018)

05/14/2018

258 DECLARATION of La Rond Baker in support of Washington's Response filed by Intervenor Plaintiff State of Washington re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Baker, La Rond) Per Counsel, added last name of declarant to docket text. Modified on 5/16/2018 (vb). (Entered: 05/14/2018)

05/14/2018

NOTICE of Docket Text Modification re 258 Declaration, : Per Counsel, added last name of declarant to docket text. (vb) (Entered: 05/16/2018)

05/16/2018

259 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Samantha Everett for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 05/16/2018)

05/16/2018

260 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Natalie Nardecchia for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 05/16/2018)

05/18/2018

261 REPLY, filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, TO RESPONSE to 238 MOTION to Stay Preliminary Injunction Pending Appeal (Parker, Ryan) (Entered: 05/18/2018)

05/18/2018

262 DECLARATION of Ryan Parker filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Attachments: # 1 Exhibit, # 2 Exhibit)(Parker, Ryan) (Entered: 05/18/2018)

05/18/2018

263 DECLARATION of Stephanie Barna filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 238 MOTION to Stay Preliminary Injunction Pending Appeal (Parker, Ryan) (Entered: 05/18/2018)

05/18/2018

264 REPLY, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 243 MOTION for Order to Show Cause (Sykes, Jason) (Entered: 05/18/2018)

05/18/2018

NOTE: Appearance of attorney Ryan B. Parker is not proper, and notices of electronic filing will not be sent until corrected. Signatures must be in accordance with FRCP 11 and LCR 83.2(a) and must comply with ECF Filing Procedures. This deficiency can be cured by filing a notice of appearance. (SWT) Modified to strike notice on 5/21/2018 (SWT). (Entered: 05/21/2018)

05/18/2018

***Motion terminated: 243 MOTION for Order to Show Cause per plaintiff's 264 Reply Withdrawing Motion(SWT) (Entered: 05/21/2018)

05/21/2018

NOTICE of Docket Text Modification re Note re compliance with LCR 83.2, : Notice stricken. Sent in error. (SWT) (Entered: 05/21/2018)

05/21/2018

265 NOTICE of Appearance by attorney Andrew E Carmichael on behalf of Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Carmichael, Andrew) (Entered: 05/21/2018)

05/21/2018

266 RESPONSE, by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America,

to 245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE. (Parker, Ryan) (Entered: 05/21/2018)

05/21/2018

267 DECLARATION of Ryan Parker filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Attachments: # 1 Exhibit, # 2 Exhibit)(Parker, Ryan) (Entered: 05/21/2018)

05/21/2018

268 MOTION for Protective Order , filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 6/1/2018, (Parker, Ryan) (Entered: 05/21/2018)

05/21/2018

269 DECLARATION of Ryan Parker filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 268 MOTION for Protective Order (Attachments: # 1 Exhibit, # 2 Exhibit)(Parker, Ryan) (Entered: 05/21/2018)

05/22/2018

270 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joseph B Tyson for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 05/22/2018)

05/24/2018

271 STIPULATION AND PROPOSED ORDER EXTENDING THE TIME TO RESPOND by parties re 268 MOTION for Protective Order (Sykes, Jason) (Entered: 05/24/2018)

05/25/2018

272 STIPULATION AND ORDER extending time to respond to Defendants' Motion for Protective Order (dkt. 268 ) re parties' 271 Stipulation. Any response to Defendants' Motion for Protective Order due 6/6/2018. Defendants shall file reply in support by 6/13/2018. Signed by Judge Marsha J. Pechman. (SWT) (Entered: 05/25/2018)

05/25/2018

273 REPLY, filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 245 MOTION to Compel DEFENDANTS DISCOVERY

WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Sykes, Jason) (Entered: 05/25/2018)

05/30/2018

274 ORDER TO SHOW CAUSE re: Defenants' 238 MOTION to Stay Preliminary Injunction Pending Appeal. Parties are ordered to show cause why Defendants' Motion to Stay the Preliminary Injunction should not be renoted until after the Ninth Circuit enters a ruling or otherwise disposes of the appeal. Show Cause response due within seven (7) days of this order. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/30/2018)

06/06/2018

275 RESPONSE TO ORDER TO SHOW CAUSE 274 by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Sykes, Jason) Modified on 6/7/2018 to add document link to OSC (PM). (Entered: 06/06/2018)

06/06/2018

276 RESPONSE TO ORDER TO SHOW CAUSE 274 by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America (Carmichael, Andrew) Modified on 6/7/2018 to add document link to OSC(PM). (Entered: 06/06/2018)

06/06/2018

277 RESPONSE TO ORDER TO SHOW CAUSE 274 by Intervenor Plaintiff State of Washington (Baker, La Rond) Modified on 6/7/2018 added document link to OSC (PM). (Entered: 06/06/2018)

06/06/2018

278 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 268 MOTION for Protective Order . (Sykes, Jason) (Entered: 06/06/2018)

06/06/2018

279 DECLARATION of Daniel Siegfried filed by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 268 MOTION for Protective Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Sykes, Jason) (Entered: 06/06/2018)

06/07/2018

280 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Ryan Bradley Parker for Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Parker, Ryan) (Entered: 06/07/2018)

06/13/2018

281 REPLY, filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, TO RESPONSE to 268 MOTION for Protective Order (Carmichael, Andrew) (Entered: 06/13/2018)

06/13/2018

282 DECLARATION of Andrew E Carmichael filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Donald J. Trump, United States Department of Defense, United States of America re 268 MOTION for Protective Order (Carmichael, Andrew) (Entered: 06/13/2018)

06/15/2018

283 ORDER denying Defendants' 238 Motion to Stay Preliminary Injunction. The status quo shall remain "steady as she goes," and the preliminary injunction shall remain in full force and effect nationwide. Signed by Judge Marsha J. Pechman. (PM) (Entered: 06/15/2018)

06/21/2018

Noting Date Reset at the direction of chambers: re 268 MOTION for Protective Order, 245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE: Noting Date is 7/17/2018. (PM) (Entered: 06/21/2018)

06/25/2018

284 NOTICE of Hearing 268 MOTION for Protective Order 245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE : ORAL ARGUMENT/Motion Hearing set for 7/17/2018 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed 30 minutes for argument, including rebuttal. (RM) (Entered: 06/25/2018)

06/25/2018

285 NOTICE of Request for Video Recording of oral argument/motion hearing on 7/17/2018 at 9:00 AM before Marsha J. Pechman. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 7/2/2018. Please Note: This form must not be filed electronically with the Court. (RM) (Entered: 06/25/2018)

07/03/2018

286 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the hearing on the Motion for Protective Order and the Motion to Compel on 7/17/2018 at 9:00 AM in Courtroom 14206. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (RM) (Entered: 07/03/2018)

07/03/2018

287 NOTICE of Supplemental Authority by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America (Attachments: # 1 Trump v. Hawaii)(Carmichael, Andrew) (Entered: 07/03/2018)

07/06/2018

288 MINUTE ORDER re Defendants' 287 Notice of Supplemental Authority. Defendants are to file any supplemental briefing no later than Monday, July 9, 2018. Plaintiffs are to file any response no later than Thursday, July 12, 2018. Authorized by Judge Marsha J. Pechman. (TH) (Entered: 07/06/2018)

07/09/2018

289 Supplemental BRIEF re 287 Notice of Supplemental Authority, 288 Minute Order, concerning the impact of Trump v. Hawaii on pending motions by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America (Attachments: # 1 Trump v. Hawaii)(Carmichael, Andrew) (Entered: 07/09/2018)

07/11/2018

290 NOTICE of Appearance by attorney Joshua E Gardner on behalf of Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Gardner, Joshua) (Entered: 07/11/2018)

07/11/2018

291 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Carl Charles for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 07/11/2018)

07/12/2018

292 RESPONSE by Intervenor Plaintiff State of Washington re 289 Brief, Washington's Resp. to Defs.' Supp. Brief re Trump v Hawaii (Melody, Colleen) (Entered: 07/12/2018)

07/12/2018

293 RESPONSE by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 289 Brief, Plaintiffs Response to Defendants Supplemental Brief Concerning the Impact of Trump v. Hawaii on Pending Motions (Sykes, Jason) (Entered: 07/12/2018)

07/17/2018

294 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Colleen Melody, Sam Ikard, Stephen Patton, Daniel Siegfried; Def Counsel: Andrew Carmichael, Joshua Gardner, Ashley Cheung; CR: Andrea Ramirez; Motion Hearing held on 7/17/2018 268 MOTION for Protective Order filed by James N Mattis, United States Department of Defense, Department of Homeland Security, Elaine C. Duke, United States of America, Donald J. Trump & 245 MOTION to Compel DEFENDANTS DISCOVERY WITHHELD UNDER THE

07/18/2018 07/20/2018

DELIBERATIVE PROCESS PRIVILEGE filed by Cathrine Schmid, Jane Doe, Megan Winters, Terece Lewis, Phillip Stephens, Gender Justice League, American Military Partner Association, Conner Callahan, Lindsey Muller, D.L., Ryan Karnoski, Laura Garza, Human Rights Campaign. Oral argument presented. Court will issue written order. (RM) (Entered: 07/17/2018)
295 ORDER of USCA (18-35347) as to 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump (SG) (Entered: 07/18/2018)
296 ORDER of USCA (18-35347) as to 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump (CDA) (Entered: 07/20/2018)

07/23/2018 07/23/2018

297 APPLICATION OF ATTORNEY Paul D. Castillo FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Fee Paid) Receipt No. 0981-5404872 (Sykes, Jason) (Entered: 07/23/2018)
298 ORDER re 297 Application for Leave to Appear Pro Hac Vice,. The Court ADMITS Attorney Paul D Castillo for American Military Partner Association, Conner Callahan,D.L. Jane Doe,Laura Garza,Gender Justice League,Human Rights Campaign,Ryan Karnoski,Terece Lewis,Lindsey Muller,Cathrine Schmid,Phillip Stephens, and for Megan Winters, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 07/23/2018)

07/27/2018

299 ORDER granting Plaintiffs' 245 Motion to Compel and ORDERING Defendants to turn over those documents that have been withheld solely under the deliberative process privilege within 10 days of the date of this Order; denying Defendants' 268 Motion for Protective Order and ORDERING Defendants to produce a privilege log identifying the documents, communications, and other materials they have withheld under the presidential communications privilege within 10 days of the date of this Order. Signed by Judge Marsha J. Pechman. (PM) (Entered: 07/27/2018)

07/31/2018 300 MOTION to Stay re 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, , filed by Intervenor Defendants Department of

Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 8/10/2018, (Carmichael, Andrew) (Entered: 07/31/2018)

07/31/2018

301 DECLARATION of Andrew Carmichael filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America re 300 MOTION to Stay re 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, (Carmichael, Andrew) (Entered: 07/31/2018)

08/01/2018

302 NOTICE Of Filing Petition For Writ Of Mandamus re 300 MOTION to Stay re 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Exhibit Mandamus Petition, # 2 Exhibit Addendum)(Carmichael, Andrew) (Entered: 08/01/2018)

08/01/2018 303 NOTICE from 9th Circuit Court of Appeals (18-72159) (CDA) (Entered: 08/01/2018)

08/03/2018

304 MINUTE ORDER declining to issue an expedited ruling on Defendants' 300 MOTION to Stay Compliance with the Court's Discovery Order. Response to motion due 8/6/2018; Reply due 8/10/2018. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 08/03/2018)

08/03/2018

305 CORRECTED MINUTE ORDER (re: 304 ) declining to issue an expedited ruling on Defendants' 300 MOTION to Stay Compliance with the Court's Discovery Order. Response due 8/8/2018; Reply due 8/10/2018. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 08/03/2018)

08/08/2018

306 RESPONSE, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, to 300 MOTION to Stay re 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, . (Sykes, Jason) (Entered: 08/08/2018)

08/10/2018

307 REPLY, filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America, TO RESPONSE to 300 MOTION to Stay re 299 Order on Motion to

08/14/2018 08/15/2018

Compel,,, Order on Motion for Protective Order,, (Carmichael, Andrew) (Entered: 08/10/2018)
308 NOTICE of Supplemental Authority re 300 MOTION to Stay re 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America (Attachments: # 1 NY v. Commerce Discovery Order)(Carmichael, Andrew) (Entered: 08/14/2018)
309 NOTICE of Supplemental Authority re 306 Response to Motion, 300 MOTION to Stay re 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Attachments: # 1 Exhibit A)(Sykes, Jason) (Entered: 08/15/2018)

08/17/2018 310 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 7/17/2018 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.

08/20/2018

Release of Transcript Restriction set for 11/15/2018, (AR) (Entered: 08/17/2018)
311 ORDER denying Defendants' 300 Motion to Stay. The Court ORDERS Defendants to comply with Discovery Order; that the deadline for compliance with Discovery Order be extended until the Ninth Circuit has ruled on Defendants' Mandamus Petition; Defendants to certify to the Court by no later than 10/10/2018 that they have taken steps and are

prepared to comply with its Discovery Order. Signed by Judge Marsha J. Pechman. (SWT) (cc: Ninth Circuit via ad hoc) (Entered: 08/20/2018)

08/23/2018

312 NOTICE of Renewed Stay Motion Before the Ninth Circuit Court of Appeals re 311 Order on Motion to Stay, ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Renewed Ninth Circuit Stay Motion)(Carmichael, Andrew) (Entered: 08/23/2018)

09/12/2018

313 NOTICE of Appearance by attorney Amanda J Beane and Sara L. Ainsworth on behalf of Amicus Legal Voice. (Beane, Amanda) Modified on 9/13/2018: added Sara L. Ainsworth to docket text (PM). (Entered: 09/12/2018)

09/12/2018

314 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sara Ainsworth for Amicus Legal Voice. (Beane, Amanda) (Entered: 09/12/2018)

09/13/2018

Attorney Lisa M. Stone added as counsel for Legal Voice per 313 Notice of Appearance. (PM) (Entered: 09/13/2018)

09/14/2018

315 NOTICE of Stay Application to Supreme Court re 311 Order on Motion to Stay, 299 Order on Motion to Compel,,, Order on Motion for Protective Order,, ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 SCOTUS Stay Application, # 2 Appendix)(Carmichael, Andrew) (Entered: 09/14/2018)

09/17/2018

316 NOTICE of Withdrawal of Stay Application re 315 Notice-Other, ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 CA9 Stay Order, # 2 SCOTUS Letter)(Carmichael, Andrew) (Entered: 09/17/2018)

09/17/2018 317 ORDER from the 9th Circuit Court of Appeals (18-72159) re 303 Notice from 9th Circuit Court of Appeals (CDA) (Entered: 09/18/2018)

09/27/2018

318 STIPULATION AND PROPOSED ORDER EXTENDING DISCOVERY AND DISPOSITIVE MOTION DEADLINES by parties (Sykes, Jason) (Entered: 09/27/2018)

09/28/2018

319 MINUTE ORDER granting the parties' 318 Stipulation Motion. The October 10, 2018 deadline for filing and noting discovery motions, the November 9, 2018 deadline for completing discovery, and the December

10, 2018 deadline for filing dispositive motions are hereby vacated. The parties are ordered to submit proposed revisions to the case schedule within 21 days after the Ninth Circuit rules on the pending mandamus petition. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 09/28/2018)

10/01/2018

320 ORDER of USCA (18-35347, 18-72159) as to 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, United States of America, Donald J. Trump (CDA) (Entered: 10/01/2018)

10/06/2018

321 NOTICE of Filing Corrected Easton Declaration re 301 Declaration, ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Corrected Easton Declaration)(Carmichael, Andrew) (Entered: 10/06/2018)

10/15/2018

322 NOTICE of Appearance by attorney Eric A Mentzer on behalf of Intervenor Plaintiff State of Washington. (Mentzer, Eric) (Entered: 10/15/2018)

10/18/2018

APPEAL RECORD SENT TO USCA (18-72159) - 1 thumb drive sent to USCA. (CDA) (Entered: 10/18/2018)

11/06/2018

Appeal Record Returned: 1 thumb drive (SG) (Entered: 11/06/2018)

11/07/2018

323 NOTICE Re: Letter ; filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Exhibit A)(Carmichael, Andrew) (Entered: 11/07/2018)

11/27/2018

324 NOTICE of Filing Petition for a Writ of Certiorari Before Judgment ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Attachments: # 1 Petition)(Carmichael, Andrew) (Entered: 11/27/2018)

11/27/2018

325 NOTICE of Change of Address/Change of Name of Attorney Andrew E Carmichael. Filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Carmichael, Andrew) Modified Address on 11/27/2018 (DS). Modified address on 11/30/2018 (DS). (Entered: 11/27/2018)

11/30/2018

326 NOTICE of Change of Address/Change of Name of Attorney Joshua E Gardner. Filed by Defendants James N Mattis, Donald J. Trump, United States Department of Defense, United States of America. (Gardner,

11/30/2018

Joshua) Modified firm address on 11/30/2018 (DS). (Entered: 11/30/2018)
327 APPLICATION OF ATTORNEY Joseph B. Tyson FOR LEAVE TO APPEAR PRO HAC VICE by Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters Receipt No. 0981-5157687 (Sykes, Jason) (Entered: 11/30/2018)

11/30/2018

328 ORDER re 327 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Joseph Benjamin Tyson for plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, and Megan Winters by Clerk William M McCool. No document associated with this docket entry, text only.

01/29/2019 02/19/2019

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/30/2018)
329 NOTICE of Appearance by attorney Chalia I. Stallings-Ala'ilima on behalf of Intervenor Plaintiff State of Washington. (Stallings-Ala'ilima, Chalia) (Entered: 01/29/2019)
330 STIPULATION AND PROPOSED ORDER TO VACATE THE CURRENT CASE SCHEDULE AND ORDERING THE PARTIES TO PROPOSE A NEW CASE SCHEDULE by parties (Sykes, Jason) (Entered: 02/19/2019)

02/20/2019

331 ORDER re 330 Stipulation. The following deadlines are VACATED: March 4, 2019 motions in limine deadline, March 27, 2019 pretrial order deadline, March 27, 2019 proposed findings of fact and conclusions of law deadline, March 29, 2019 pretrial conference, and April 8, 2019 trial date. Parties directed to submit a joint proposal for revisions to the case schedule within 21 days after the Ninth Circuit rules on the Mandamus Petition. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/20/2019)

03/08/2019 03/11/2019

332 NOTICE ; filed by Defendants James N Mattis, Donald J Trump, United States Department of Defense, United States of America. (Carmichael, Andrew) (Entered: 03/08/2019)
333 APPLICATION OF ATTORNEY Carl S. Charles FOR LEAVE TO APPEAR PRO HAC VICE by Plaintiffs American Military Partner

Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters Receipt No. 0981-4997512 (Sykes, Jason) (Entered: 03/11/2019)

03/11/2019

334 ORDER re 333 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Carl S Charles for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters by Clerk William M McCool. No document associated with this docket entry, text only.

04/11/2019 05/31/2019

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/11/2019)
335 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Eric A Mentzer for Intervenor Plaintiff State of Washington. (Mentzer, Eric) (Entered: 04/11/2019)
336 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Scott Lerner for Plaintiffs American Military Partner Association, Conner Callahan, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 05/31/2019)

06/07/2019 06/14/2019

337 ORDER of USCA (18-35347, 18-72159) as to 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, Donald J Trump, United States of America (CDA) Modified on 6/7/2019 to add additional CCA # to docket (CDA). (Entered: 06/07/2019)
338 OPINION of USCA (NOT THE MANDATE, 18-35347) as to 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, Donald J Trump, United States of America. The District Court's order striking motion to dismiss is VACATED and REMANDED. Writ GRANTED vacating District Court's discovery order and REMANDED. (GT) (Entered: 06/14/2019)

07/03/2019 07/03/2019

339 STIPULATION AND PROPOSED ORDER CONCERNING CASE SCHEDULE by parties (Carmichael, Andrew) (Entered: 07/03/2019)
340 ORDER granting parties' 339 Stipulation and Order Concerning Case Schedule. IT IS HEREBY ORDERED thatthe Parties will propose and

file an amended schedule to reset case deadlines by 7/12/2019. Signed by Judge Marsha J. Pechman. (TH) (Entered: 07/03/2019)

07/12/2019

341 STIPULATION AND PROPOSED ORDER TO REVISE CASE SCHEDULE by parties re 331 Order,, Terminate Deadlines and Hearings, (Sykes, Jason) (Entered: 07/12/2019)

07/15/2019

342 PRAECIPE to attach document re 341 Stipulation by Plaintiffs American Military Partner Association, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Attachments: # 1 Signature Pages)(Sykes, Jason) (Entered: 07/15/2019)

07/16/2019

343 ORDER re 341 Joint Stipulation to Revise Case Schedule. Bench Trial is set for 6/22/2020 at 09:00 AM before Judge Marsha J. Pechman. Amended pleadings due two weeks from the date the Court issues the revised case schedule, Motions pertaining to the Deliberative Process Privilege will be filed on or before August 22, 2019, Motions related to discovery due by 1/21/2020, Discovery completed by 2/18/2020, Dispositive motions due by 3/17/2020, Motions in Limine due by 5/26/2020, Joint Pretrial Order due by 6/10/2020, Trial briefs to be submitted by 6/10/2020, Pretrial Conference set for 6/12/2020 at 01:30 PM before Judge Marsha J. Pechman. Signed by Judge Marsha J. Pechman. (PM) (Entered: 07/16/2019)

07/17/2019

344 AMENDED ORDER re: 343 Order re 341 Joint Stipulation to Revise Case Schedule. Bench Trial is set for 6/22/2020 at 09:00 AM before Judge Marsha J. Pechman. Amended pleadings due two weeks from the date the Court issues the revised case schedule, Motions pertaining to the Deliberative Process Privilege will be filed on or before August 22, 2019, Motions related to discovery due by 1/21/2020 1/20/2020, Discovery completed by 2/18/2020, Dispositive motions due by 3/17/2020, Motions in Limine due by 5/26/2020, Joint Pretrial Order due by 6/10/2020, Trial briefs to be submitted by 6/10/2020, Pretrial Conference set for 6/12/2020 at 01:30 PM before Judge Marsha J. Pechman. Signed by Judge Marsha J. Pechman by Judge Marsha J. Pechman. (PM) Modified on 12/13/2019 to correct date motions related to discovery are due (PM). (Entered: 07/17/2019)

07/23/2019 345 STIPULATION TO DISMISS CONNER CALLAHAN WITHOUT PREJUDICE by parties (Sykes, Jason) (Entered: 07/23/2019)

07/24/2019

Party Conner Callahan terminated per parties' 345 Joint Stipulation to Dismiss without Prejudice. (PM) (Entered: 07/24/2019)

07/24/2019 346 NOTICE of Appearance by attorney Rachel J Horvitz on behalf of Plaintiffs American Military Partner Association, D.L., Jane Doe, Laura

Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Horvitz, Rachel) (Entered: 07/24/2019)

07/31/2019

347 Second AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against defendant(s) Donald J Trump, United States Department of Defense, United States of America, Mark Esper, filed by Megan Winters, Lindsey Muller, Jane Doe, Phillip Stephens, Ryan Karnoski, Human Rights Campaign, Terece Lewis, D.L., Cathrine Schmid, Gender Justice League, American Military Partner Association. (Attachments: # 1 Exhibit A)(Horvitz, Rachel) (Entered: 07/31/2019)

07/31/2019

348 AMENDED COMPLAINT IN INTERVENTION against defendant(s) Department of Homeland Security, Mark Esper, Donald J Trump, United States Department of Defense, United States of America, Kevin McAleenan, filed by State of Washington.(Stallings-Ala'ilima, Chalia) Modified on 8/28/2019 to expand description of document (PM). (Entered: 07/31/2019)

08/02/2019

349 STIPULATION AND PROPOSED ORDER TO VACATE PRELIMINARY INJUNCTION by parties (Sykes, Jason) (Entered: 08/02/2019)

08/05/2019

350 JOINT STIPULATION AND ORDER to Vacate Preliminary Injunction re parties' 349 Stipulation. Signed by Judge Marsha J. Pechman. (SWT) (Entered: 08/05/2019)

08/05/2019

351 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney La Rond Baker for Intervenor Plaintiff State of Washington. (Baker, La Rond) (Entered: 08/05/2019)

08/07/2019

352 MANDATE OF USCA (18-35347) as to 236 Notice of Appeal, filed by James N Mattis, United States Department of Defense, Donald J Trump, United States of America. The Judgment from USCA takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. VACATED AND REMANDED. (GT) (Entered: 08/07/2019)

08/09/2019

353 NOTICE of Appearance by attorney James Ryan Powers on behalf of Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America. (Powers, James) (Entered: 08/09/2019)

08/09/2019

354 Unopposed MOTION for Extension of Time to File Answer re 348 Amended Complaint, 347 Amended Complaint, , filed by Defendants Mark Esper, Donald J Trump, United States Department of

Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 8/9/2019, (Powers, James) (Entered: 08/09/2019)

08/09/2019

355 ORDER granting Defendants' 354 Motion for Extension of Time to Answer. Defendants shall file their response to Plaintiffs' Second Amended Complaint, ECF No. 347 , and Plaintiff-Intervenor's First Amended Complaint, ECF No. 348 , by 8/28/2019. Signed by Judge Marsha J. Pechman. (TH) (Entered: 08/09/2019)

08/15/2019

356 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 8/23/2019, (Horvitz, Rachel) (Entered: 08/15/2019)

08/15/2019

357 SEALED DOCUMENT Exhibit 10 to the 359 Declaration of Vanessa Barsanti by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 356 MOTION to Seal (Horvitz, Rachel) Modified on 8/16/2019 to add link to Declaration 359 (PM). (Entered: 08/15/2019)

08/15/2019

358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 8/30/2019, (Sykes, Jason) Modified on 8/16/2019 to remove excessive capitalization (PM). (Entered: 08/15/2019)

08/15/2019

359 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Sykes, Jason) Modified on 8/16/2019 (PM). (Entered: 08/15/2019)

08/16/2019

360 STIPULATION AND PROPOSED ORDER TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206-MJP FOR ALL PURPOSES by parties (Horvitz, Rachel) (Entered: 08/16/2019)

08/20/2019

361 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' 358 Motion to Compel, filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin McAleenan, Donald J Trump, United States Department of Defense, United States of America, Intervenor Plaintiff State of Washington. Noting Date 8/20/2019, (Carmichael, Andrew) Modified on 8/21/2019 to add link to motion to compel (PM). (Entered: 08/20/2019)

08/21/2019

362 ORDER granting Defendants' 361 Consent Motion for Extension of Time. Defendants shall file their response to Plaintiffs' Motion to Compel, ECF No. 358 , by August 29, 2019, and Plaintiffs shall file their reply in support of the motion by September 4, 2019. Signed by Judge Marsha J. Pechman. (PM) (Entered: 08/21/2019)

08/21/2019

363 RESPONSE, by Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America, to 356 MOTION to Seal . (Attachments: # 1 Exhibit)(Powers, James) (Entered: 08/21/2019)

08/22/2019

364 MOTION to Compel Documents Withheld Under The Deliberative Process Privilege , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/27/2019, (Sykes, Jason) (Entered: 08/22/2019)

08/22/2019

365 DECLARATION of Daniel Siegfried filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 364 MOTION to Compel DOCUMENTS WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55,

# 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61)(Sykes, Jason) (Entered: 08/22/2019)

08/22/2019

366 NOTICE OF DIFFICULT FILING re 365 Declaration,,,,,, ; filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Horvitz, Rachel) (Entered: 08/22/2019)

08/23/2019

RECEIPT of Exhibits 4-52, 57-61 (thumb drive) to the 365 Declaration of Daniel Seigfried re: 364 Motion to Compel; re: 366 Notice of Difficult Filing. (Thumb drive placed on Clerk's Office filing shelf in one Expando file) (PM )Modified on 8/26/2019 to correct date from 8/26/2019 to 8/23/2019 (PM). (Entered: 08/26/2019)

08/28/2019

367 ORDER re parties' 360 Joint Stipulation to Consolidate Cases. The Court ORDERS that Karnoski, et al. v. Trump, et al., Case No. 2:19-cv-01206MJP be consolidated with Karnoski, et al. v. Trump, et al., Case No. 2:17-cv-01297-MJP for all purposes pursuant to LCR 42(a) with a trial date of June 22, 2020. All future filings must be submitted in the lead case, 2:17-cv-01297 -MJP. Signed by Judge Marsha J. Pechman (PM) (Entered: 08/28/2019)

08/28/2019

368 ANSWER to 347 Amended Complaint, by Mark Esper, Donald J Trump, United States Department of Defense, United States of America.(Powers, James) (Entered: 08/28/2019)

08/28/2019

369 ANSWER to 348 Amended Complaint, by Mark Esper, Donald J Trump, United States Department of Defense, United States of America.(Powers, James) (Entered: 08/28/2019)

08/29/2019

370 RESPONSE, by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin McAleenan, Donald J Trump, United States Department of Defense, United States of America, to 358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories. (Carmichael, Andrew) (Entered: 08/29/2019)

08/29/2019

371 DECLARATION of Andrew E Carmichael filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin McAleenan, Donald J Trump, United States Department of Defense, United States of America re 358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories (Attachments: # 1 Exhibit A (Easton Declaration))(Carmichael, Andrew) (Entered: 08/29/2019)

08/29/2019 372 ORDER granting in part Plaintiff's 356 Motion to Seal signed by Judge Marsha J. Pechman. (TH) (Entered: 08/29/2019)

08/29/2019

373 EXHIBIT B (DoD Revised 1st Interrogatory Responses) re 371 Declaration, by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin McAleenan, Donald J Trump, United States Department of Defense, United States of America (Carmichael, Andrew) (Entered: 08/29/2019)

09/04/2019

374 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 9/13/2019, (Horvitz, Rachel) (Entered: 09/04/2019)

09/04/2019

375 SEALED DOCUMENT Exhibit 1 to the Declaration of Vanessa Barsanti by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 374 MOTION to Seal (Horvitz, Rachel) (Entered: 09/04/2019)

09/04/2019

376 REPLY, filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories (Horvitz, Rachel) (Entered: 09/04/2019)

09/04/2019

377 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories (Attachments: # 1 Exhibit 1)(Horvitz, Rachel) (Entered: 09/04/2019)

09/11/2019

378 RESPONSE, by Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America, to 374 MOTION to Seal . (Attachments: # 1 Exhibit)(Powers, James) (Entered: 09/11/2019)

09/13/2019

379 ORDER granting Plaintiffs' 374 Motion to Seal. Defendants' August 30, 2019 Objections to Plaintiffs' Second Set of Interrogatories to Secretary Esper and the United States Department of Defense will be filed partially under seal, redacted in accordance with Defendants exhibit, Dkt.

No. 378 , Ex. 1. Signed by Judge Marsha J. Pechman. (PM) (Entered: 09/13/2019)

09/13/2019

380 RESPONSE, by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin McAleenan, Donald J Trump, United States Department of Defense, United States of America, to 364 MOTION to Compel DOCUMENTS WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE. (Carmichael, Andrew) (Entered: 09/13/2019)

09/13/2019

381 DECLARATION of Andrew E Carmichael filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin McAleenan, Donald J Trump, United States Department of Defense, United States of America re 364 MOTION to Compel DOCUMENTS WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Attachments: # 1 Exhibit 1 (Easton Declaration), # 2 Exhibit 2 (AR 2830-35), # 3 Exhibit 3 (Production Ltr), # 4 Exhibit 4 (USDOE 206512), # 5 Exhibit 5 (Wilmoth Expert Report), # 6 Exhibit 6 (Barsanti Ltr), # 7 Exhibit 7 (Carmichael Ltr), # 8 Exhibit 8 (USDOE 238554), # 9 Exhibit 9 (Plaintiffs' 3rd RFP))(Carmichael, Andrew) (Entered: 09/13/2019)

09/23/2019

382 NOTICE to Withdraw Pending Motion re 358 MOTION to Compel Defendants to Adequately Respond to Plaintiffs' First, Second, and Third Set of Requests for Production of Documents and Interrogatories ; by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Sykes, Jason) (Entered: 09/23/2019)

09/27/2019

383 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 10/11/2019, (Sykes, Jason) (Entered: 09/27/2019)

09/27/2019

384 SEALED DOCUMENT Exhibit 62 to the Supplemental Declaration of Daniel Siegfried by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 383 MOTION to Seal , 183 Protective Order (Sykes, Jason) (Entered: 09/27/2019)

09/27/2019

385 REPLY, filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, TO RESPONSE to 364 MOTION to

Compel DOCUMENTS WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Sykes, Jason) (Entered: 09/27/2019)

09/27/2019

386 Supplemental DECLARATION of Daniel Siegfried filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 364 MOTION to Compel DOCUMENTS WITHHELD UNDER THE DELIBERATIVE PROCESS PRIVILEGE (Attachments: # 1 Exhibit 62, # 2 Exhibit 63, # 3 Exhibit 64)(Sykes, Jason) (Entered: 09/27/2019)

10/01/2019

387 ORDER granting Plaintiffs' 383 Motion to Seal. The January 29, 2018 email exchange between Secretary of Defense James Mattis to Greg Newbold, Ex. 62 (Dkt. No. 384 ), will remain filed under seal. Signed by Judge Marsha J. Pechman. (TH) (Entered: 10/01/2019)

10/22/2019

388 NOTICE of Hearing 364 MOTION to Compel Documents Withheld Under the Deliberative Process Privilege : ORAL ARGUMENT/Motion Hearing set for 11/12/2019 at 02:00 PM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed 20 minutes for argument, including rebuttal. (RM) (Entered: 10/22/2019)

10/28/2019

389 NOTICE of Recent Development re 364 MOTION to Compel Documents Withheld Under the Deliberative Process Privilege ; filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Exhibit 1 (Doe 2 v. Esper JSR of 10.25.19))(Carmichael, Andrew) (Entered: 10/28/2019)

11/05/2019

390 NOTICE of Appearance by attorney Matthew Skurnik on behalf of Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 11/05/2019)

11/08/2019

391 NOTICE of Change of Address/Change of Name of Attorney Matthew Skurnik. Filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) Changed address on 11/8/2019 (DS). (Entered: 11/08/2019)

11/08/2019

392 RESPONSE by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip

11/12/2019

Stephens, Megan Winters re 389 Notice-Other, (Attachments: # 1 Exhibit A)(Horvitz, Rachel) (Entered: 11/08/2019)
393 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Jordan Heinz, Jason Sykes, Rachel Horvitz, Chalia Stallings-Ala'ilima; Def Counsel: Andrew Carmichael, Matthew Skurnik; CR: Debbie Zurn; Motion Hearing held on 11/12/2019 364 MOTION to Compel Documents Withheld Under the Deliberative Process Privilege filed by Cathrine Schmid, Jane Doe, Megan Winters, Terece Lewis, Phillip Stephens, Gender Justice League, American Military Partner Association, Lindsey Muller, D.L., Ryan Karnoski, Human Rights Campaign. Oral argument presented. A written opinion will issue in one week. (RM) (Entered: 11/13/2019)

11/19/2019

394 ORDER granting in part and denying in part Plaintiff's 364 Motion to Compel Documents Withheld Under the Deliberative Process Privilege. Because the Defendants' current production does not permit Plaintiffs or the Court to assess Defendants' privilege claims, after Plaintiffs have provided Defendants with a list of Requests for Production ordered by priority, Defendants are ORDERED to begin responding to each Request. On December 10, 2019 at 4 p.m., the Parties will meet with the Court to begin assessing Defendants' privilege claims by individual Requests for Production. Signed by Judge Marsha J. Pechman. (PM) (Entered: 11/19/2019)

11/22/2019 11/22/2019

395 APPLICATION OF ATTORNEY Sam Ikard FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Fee Paid) Receipt No. 09816021982 (Horvitz, Rachel) (Entered: 11/22/2019)
396 ORDER re 395 Application for Leave to Appear Pro Hac Vice, The Court ADMITS Attorney Sam Ikard for American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens and Megan Winters, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 11/22/2019)

11/25/2019 397 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 11/12/2019 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 2/24/2020, (DZ) (Entered: 11/25/2019)

12/06/2019 12/10/2019
12/13/2019

398 Joint STATUS REPORT by Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America (Carmichael, Andrew) (Entered: 12/06/2019)
399 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Daniel Siegfried, Jordan Heinz, Sam Ikard, Rachel Horvitz; Intervenor Plaintiff: Chalia Stallings Ala'ilima; Def Counsel: Andrew Carmichael, Matthew Skurnik; CR: Debbie Zurn; Status Conference held on 12/10/2019. The parties update the Court on the status of discovery and an order will issue on the items discussed and the deadlines set. The next status hearing is scheduled for 1/24/2020 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. (RM) (Entered: 12/11/2019)
NOTICE of Docket Text Modification re 344 Amended Order: corrected date discovery dispositive motions are due from 1/21/2019 to 1/20/2019 1/20/2020 per Amended Order 344 . (PM) Modified on 12/13/2019 (MW). Modified on 12/17/2019 to correct date (PM). (Entered: 12/13/2019)

12/17/2019

Set/Reset Deadlines: Motions related to discovery due by 1/20/2020, per Amended Order 344 . (PM) (Entered: 12/17/2019)

12/17/2019

400 NOTICE OF RESCHEDULED HEARING. Status Hearing is rescheduled for 2/3/2020 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman.(RM) (Entered: 12/17/2019)

12/18/2019 12/23/2019

401 ORDER granting Plaintiffs' 364 MOTION to Compel Documents Withheld Under the Deliberative Process Privilege; REQUEST NOS. 15, 29, 33, 36, AND 44. On February 3, 2020 the Parties will meet with the Court to assess Defendants' privilege claims regarding Plaintiffs' next five prioritized Requests for production. Signed by Judge Marsha J. Pechman. (PM) (Entered: 12/18/2019)
402 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Hearing held on 12/10/2019 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

01/10/2020 01/21/2020 01/24/2020

Release of Transcript Restriction set for 3/23/2020, (DZ) (Entered: 12/23/2019)
403 MINUTE ORDER: The deadline for motions related to discovery is extended to 2/20/2020. Authorized by Judge Marsha J. Pechman. (RM) (Entered: 01/10/2020)
404 NOTICE of Hearing: Telephone Conference set for 1/30/2020 at 09:30 AM before Judge Marsha J. Pechman.(RM) (Entered: 01/21/2020)
405 MOTION Clarification and Stay re 401 Order, , filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Carmichael Decl., # 2 Easton Decl., # 3 Doe Transcript, # 4 Action Memo, # 5 Report and Recommendations, # 6 Mattis Memo, # 7 DTM 19-004, # 8 Proposed Order) Noting Date 2/14/2020, (Skurnik, Matthew) (Entered: 01/24/2020)

01/28/2020 406 NOTICE striking telephone conference scheduled for 1/30/2020 at 9:30 AM before Judge Marsha J. Pechman. (RM) (Entered: 01/28/2020)

01/30/2020 01/30/2020

407 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joseph B Tyson for Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Horvitz, Rachel) (Entered: 01/30/2020)
408 JOINT STATUS REPORT signed by all parties. Filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Horvitz, Rachel) (Entered: 01/30/2020)

01/31/2020

409 ERRATA AND NOTICE OF SECOND DECLARATION by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America (Attachments: # 1 Second Easton Declaration)(Skurnik, Matthew) (Entered: 01/31/2020)

02/03/2020
02/05/2020 02/06/2020

410 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Lowell Williams; Pla Counsel: Daniel Siegfried, Jordan Heinz, Jason Sykes, Tara Borelli, Chalia Stallings-Ala'ilima (Intervenor Pla Counsel); Def Counsel: Matthew Skurnik, James Powers; CR: Debbie Zurn; Time of Hearing: 9:00 AM; Status Conference held on 2/3/2020. Court clarifies its order re request for production no. 29 (Dkt. #401). Court will issue an amended order on the items discussed and the deadlines set. Defendants' motion for stay is denied. Court reviews issues raised in the parties' JSR. Counsel to confer re trial date and case schedule. The next status conference is set for 4/2/2020 at 9:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. (LW) (Entered: 02/03/2020)
411 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Gerald Brinton Lucas for Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Lucas, Gerald) (Entered: 02/05/2020)
412 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Hearing held on 2/3/2020 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

02/07/2020 02/11/2020

Release of Transcript Restriction set for 5/6/2020, (DZ) (Entered: 02/06/2020)
413 ORDER granting Defendants' 405 Motion for Clarification and denying Defendants' 405 Motion for a Stay. Defendants are required to produce all documents responsive to Request for Production No. 29. Defendants are ORDERED to produce all documents responsive to Request for Production No. 29, including those documents from the categories stated, within seven (7) days of the date of this Order. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/07/2020)
414 NOTICE of Petition for Writ of Mandamus ; filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Petition, # 2 Addendum)(Carmichael, Andrew) (Entered: 02/11/2020)

02/12/2020

415 ORDER of USCA (20-70365) re 414 Notice of Petition for Writ of Mandamus . Petitioners request for a temporary administrative stay is granted. The district courts December 18, 2019, February 3, 2020, and February 7, 2020 orders challenged in this petition are temporarily stayed pending further court order. (CDA) (Entered: 02/12/2020)

02/13/2020

416 ORDER of USCA (20-70365) re 414 Notice of Petition for Writ of Mandamus. This petition for a writ of mandamus raises issues that warrant an answer. See Fed. R. App. P. 21(b). Accordingly, within 14 days after the date of this order, the real parties in interest shall file an answer to the petition and a response to the request for a stay pending review. The district court, within 14 days after the date of this order, may address the petition if it so desires. The district court may elect to file an answer with this court or to issue a supplemental order and serve a copy on this court. Petitioner may file a reply within 5 days after service of the answer(s). The Clerk shall serve this order on the district court and District Judge Pechman. ad hoc to case administrators.(GT) (GT). (Entered: 02/13/2020)

02/13/2020

417 STIPULATION AND PROPOSED ORDER Joint Proposal to Revise Case Schedule by parties (Stallings-Ala'ilima, Chalia) (Entered: 02/13/2020)

02/18/2020

418 REVISED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *2 weeks*. Bench Trial is set for 10/19/2020 at 9:00 AM before Judge Marsha J. Pechman. Motions due by 4/30/2020, Discovery completed by 5/29/2020, Dispositive motions due by 7/2/2020, Motions in Limine due by 9/3/2020, Pretrial Order due by 9/18/2020, Trial briefs to be submitted by 9/18/2020, Proposed Findings of Fact and Conclusions of Law to be submitted by 9/18/2020, Pretrial Conference set for 9/25/2020 at 1:30 PM. Signed by Judge Marsha J. Pechman. (LW) (Entered: 02/18/2020)

02/19/2020

419 ORDER of USCA (20-70365) re 414 Notice of Petition for Writ of Mandamus. The court has received the February 14, 2020 letter from the district court. The request for additional time to respond to the petition for a writ of mandamus (Docket Entry No. 5) is granted. The real parties in interests answer to the mandamus petition and response to the request for a stay pending review remains due within 14 days after this courts February 13, 2020 order.The district court, within 7 days after the filing of the real parties in interests answer, may address the petition if it so desires. The district court may elect to file an answer with this court or to issue a supplemental order and serve a copy on this court. Petitioners may file a reply within 12 days after the filing of the real parties in interests answer. The Clerk shall serve this order on the district court and District Judge Pechman. cc Case Administrators(GT) (Entered: 02/19/2020)

02/25/2020

420 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 3/6/2020, (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

421 SEALED DOCUMENT PLAINTIFFS RESPONSE TO THE COURTS FEBRUARY 7, 2020 ORDER by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

422 SEALED DOCUMENT Exhibit 4 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski,

Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

423 SEALED DOCUMENT Exhibit 5 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

424 SEALED DOCUMENT Exhibit 6 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

425 SEALED DOCUMENT Exhibit 7 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

426 SEALED DOCUMENT Exhibit 9 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

427 SEALED DOCUMENT Exhibit 10 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

428 SEALED DOCUMENT Exhibit 11 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane

Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

429 SEALED DOCUMENT Exhibit 12 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

430 SEALED DOCUMENT Exhibit 19 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

431 SEALED DOCUMENT Exhibit 20 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

432 SEALED DOCUMENT Exhibit 21 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

433 SEALED DOCUMENT Exhibit 22 to the Declaration of Jordan M. Heinz in Support of Plaintiffs Response to the Courts February 7, 2020 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 420 MOTION to Seal (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020 434 RESPONSE by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan

Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 413 Order on Motion for Miscellaneous Relief, (Horvitz, Rachel) (Entered: 02/25/2020)

02/25/2020

435 DECLARATION of Jordan M. Heinz re 434 Response (non motion), by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29)(Horvitz, Rachel) (Entered: 02/25/2020)

02/26/2020 436 ORDER granting Plaintiffs' 420 Motion to Seal. Signed by Judge Marsha J. Pechman.(MW) (Entered: 02/26/2020)

02/27/2020

437 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 3/6/2020, (Horvitz, Rachel) (Entered: 02/27/2020)

02/27/2020

438 Joint MOTION to Compel REGARDING THE GOVERNMENTS WITHHELD COMMUNICATIONS WITH THIRD PARTIES, filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 2/27/2020, (Horvitz, Rachel) (Entered: 02/27/2020)

02/27/2020

439 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 438 Joint MOTION to Compel REGARDING THE GOVERNMENTS WITHHELD COMMUNICATIONS WITH THIRD PARTIES (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Horvitz, Rachel) (Entered: 02/27/2020)

02/27/2020

440 SEALED DOCUMENT by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 438 Joint MOTION to Compel REGARDING THE GOVERNMENTS WITHHELD COMMUNICATIONS WITH THIRD PARTIES, 437 MOTION to Seal (Horvitz, Rachel) (Entered: 02/27/2020)

02/27/2020

441 SEALED DOCUMENT by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 439 Declaration,, 437 MOTION to Seal (Attachments: # 1 Exhibit 9, # 2 Exhibit 16, # 3 Exhibit 17)(Horvitz, Rachel) (Entered: 02/27/2020)

02/28/2020

442 NOTICE OF INTENT TO FILE SURREPLY re 438 Motion to Compel, filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) Modified on 3/2/2020 to add document relationship link (PM). (Entered: 02/28/2020)

02/28/2020

443 SURREPLY filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America re 438 Joint MOTION to Compel REGARDING THE GOVERNMENTS WITHHELD COMMUNICATIONS WITH THIRD PARTIES (Skurnik, Matthew) (Entered: 02/28/2020)

02/28/2020

444 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 3/13/2020, (Horvitz, Rachel) (Entered: 02/28/2020)

02/28/2020

445 MOTION to Compel THE GOVERNMENTS RESPONSES TO INTERROGATORIES WITHHELD UNDER DELIBERATIVE PROCESS PRIVILEGE, filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 2/28/2020, (Horvitz, Rachel) (Entered: 02/28/2020)

02/28/2020 446 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League,

Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 445 MOTION to Compel THE GOVERNMENTS RESPONSES TO INTERROGATORIES WITHHELD UNDER DELIBERATIVE PROCESS PRIVILEGE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Horvitz, Rachel) (Entered: 02/28/2020)

02/28/2020

447 SEALED MOTION by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 445 MOTION to Compel THE GOVERNMENTS RESPONSES TO INTERROGATORIES WITHHELD UNDER DELIBERATIVE PROCESS PRIVILEGE, 444 MOTION to Seal (Horvitz, Rachel) Modified on 3/2/2020 to turn into a motion for noting purposes only (PM). (Entered: 02/28/2020)

02/28/2020

448 SEALED DOCUMENT by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 446 Declaration,, 444 MOTION to Seal (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6)(Horvitz, Rachel) (Entered: 02/28/2020)

02/28/2020

449 MOTION to Compel Documents Withheld by the Government as NonResponsive, filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 2/28/2020, (Horvitz, Rachel) (Entered: 02/28/2020)

02/28/2020

450 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 449 MOTION to Compel Documents Withheld by the Government as Non-Responsive (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 8, # 9 Exhibit 9)(Horvitz, Rachel) (Entered: 02/28/2020)

03/02/2020

451 NOTICE OF INTENT TO FILE SURREPLY ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J

Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 03/02/2020)

03/02/2020

452 SURREPLY filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America re 449 MOTION to Compel Documents Withheld by the Government as NonResponsive (Skurnik, Matthew) (Entered: 03/02/2020)

03/02/2020 453 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Cristina Sepe for Amicus Legal Voice. (Staniar, Lauren) (Entered: 03/02/2020)

03/04/2020

454 ORDER ON MOTION TO COMPEL REGARDING THE GOVERNMENT'S WITHHELD COMMUNICATIONS WITH THIRD PARTIES. IT IS ORDERED that the Government's motion to strike (Dkt. No. 443 ) Plaintiffs' reply for violation of LCR 37(a)(2) is DENIED. IT IS FURTHER ORDERED that the motion to compel (Dkt. No. 438 ) the Government's Withheld Communication with Third Parties is GRANTED. Signed by Judge Marsha J. Pechman. (TH) (Entered: 03/04/2020)

03/04/2020

455 ORDER ON LCR 37 JOINT SUBMISSION REGARDING DOCUMENTS WITHHELD BY THE GOVERNMENT AS NONRESPONSIVE. IT IS ORDERED that the Government's motion to strike (Dkt. No. 452 ) Plaintiffs' reply for violation of LCR 37(a)(2) is DENIED. IT IS FURTHER ORDERED that the motion to compel the production of documents withheld by the Government as non-responsive (Dkt. No. 449 ) is GRANTED. Signed by Judge Marsha J. Pechman. (TH) (Entered: 03/04/2020)

03/05/2020

456 ORDER granting Plaintiffs' 437 Motion to Seal. The LCR 37 Joint Submission Regarding the Government's Withheld Communications with Third Parties shall remain redacted and Exhibits 8, 9, 16, and 17 to the Declaration of Vanessa Barsanti thereto will remain filed under seal. Signed by Judge Marsha J. Pechman. (TH) Modified on 3/5/2020 to edit docket text and correct docket entry relationship (TH). (Entered: 03/05/2020)

03/05/2020

457 ORDER granting Plaintiff's 444 Motion to Seal. The LCR 37 Joint Submission Regarding the Government's Responses to Interrogatories Withheld Under Deliberative Process Privilege shall remain redacted and Exhibits 1-6 to the Declaration of Vanessa Barsanti thereto will remain filed under seal. Signed by Judge Marsha J. Pechman. (TH) (Entered: 03/05/2020)

03/05/2020

458 ORDER ON LCR 37 JOINT SUBMISSION REGARDING THE GOVERNMENT'S RESPONSES TO INTERROGATORIES WITHHELD UNDER DELIBERATIVE PROCESS PRIVILEGE. It is ordered that the Defendants shall comply with the instructions in this order by no later than 3/16/2020. Signed by Judge Marsha J. Pechman. (TH) (Entered: 03/05/2020)

03/10/2020

459 NOTICE of Mandamus Reply ; filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Reply ISO Mandamus)(Carmichael, Andrew) (Entered: 03/10/2020)

03/13/2020

460 NOTICE of Filing Documents for In Camera Review ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 03/13/2020)

03/13/2020

463 Agreed MOTION for Reconsideration re 455 Order on Motion to Compel, or Clarification, filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Easton Declaration, # 2 Proposed Order) Noting Date 3/13/2020, (Skurnik, Matthew) (Entered: 03/13/2020)

03/17/2020

464 ORDER granting Parties' 463 Agreed Motion for Clarification or Reconsideration of the Court's March 4, 2020 Order (Dkt. No. 455 ). The Court ORDERS Defendants to (1) Produce privilege logs to Plaintiffs and the Court specific to the privileged documents Defendants discovered while preparing the family of documents for production. The privilege logs shall be produced by Friday March 20, 2020; (2) Produce the privileged documents to the Court for in camera review by Friday March 27, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 03/17/2020)

03/20/2020

465 NOTICE of Filing Privilege Log re 464 Order on Motion for Reconsideration,, ; filed by Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Attachment)(Powers, James) (Entered: 03/20/2020)

03/24/2020

466 ORDER PROVIDING NOTICE OF THE APPOINTMENT OF A SPECIAL MASTER. The Court intends to appoint a special master to oversee selected discovery issues in this matter. The Court ORDERS any party that opposes such appointment to file a brief not to exceed three

pages no later than March 31, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 03/24/2020)

03/26/2020

468 NOTICE of Filing Documents for In Camera Review ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 03/26/2020)

03/31/2020

469 JOINT STATUS REPORT signed by all parties. Filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Laura Garza, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters.(Horvitz, Rachel) (Entered: 03/31/2020)

03/31/2020

470 RESPONSE by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America re 466 Order, (Carmichael, Andrew) (Entered: 03/31/2020)

03/31/2020

471 MOTION to Seal , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 4/10/2020, (Horvitz, Rachel) (Entered: 03/31/2020)

03/31/2020

472 RESPONSE by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 466 Order, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27)(Horvitz, Rachel) (Entered: 03/31/2020)

03/31/2020

473 SEALED DOCUMENT Exhibit 1 by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 183 Protective Order, 472 Response (non motion),,, 471 MOTION to Seal (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17,

# 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 22, # 22 Exhibit 23, # 23 Exhibit 24, # 24 Exhibit 25, # 25 Exhibit 26, # 26 Exhibit 27)(Horvitz, Rachel) (Entered: 03/31/2020)

04/02/2020 04/02/2020

474 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Lowell Williams; Pla Counsel: Jordan Heinz, Daniel Siegfried, Jason Sykes, Vanessa Barsanti, Sasha Buchert, Sam Ikard, Rachel Horvitz, Chalia Stallings-Ala'ilima (Intervenor Pla Counsel); Def Counsel: Matthew Skurnik, James Powers, Andrew Carmichael; CR: Nickie Drury; Time of Hearing: 9:00 AM; Telephonic Status Conference held on 4/2/2020. Court discusses with counsel issues raised in the notice re special master and joint status report. Court declines defendants' requests to wait for a ruling from the 9th Circuit and for additional time to identify a special master. If counsel can submit a list of proposed names before a selection is made, the Court will consider it. Court directs counsel to move forward with discovery and teleconference depositions. Court will issue an order on the items discussed and the deadlines set.Telephonic Status Conference set for 5/7/2020 at 9:00 AM before Judge Marsha J. Pechman.(LW) (Entered: 04/02/2020)
475 ORDER granting Plaintiffs' 471 Motion to Seal. Exhibits 127 473 (Response Exhibits) to Plaintiffs' Response to the Court's Order Providing Notice of the Appointment of a Special Master and Exhibits 127 thereto will remain filed under seal. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/02/2020)

04/05/2020 476 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Status Conference held on 4/2/2020 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.

Release of Transcript Restriction set for 7/6/2020, (ND) (Entered: 04/05/2020)

04/06/2020

477 ORDER granting Plaintiff's 364 Renewed MOTION to Compel Documents Withheld Under the Deliberative Process Privilege. The Court will hold its next status conference on May 7, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/06/2020)

04/06/2020

478 NOTICE of Special Master Recommendations ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 04/06/2020)

04/09/2020

479 ORDER APPOINTING SPECIAL MASTER. Signed by Judge Marsha J. Pechman. (Attachments: # 1 Declaration of James Donohue)(MW) (Entered: 04/09/2020)

04/10/2020

480 Joint MOTION to Compel REGARDING PLAINTIFFS RFP NO. 44, filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 4/10/2020, (Horvitz, Rachel) (Entered: 04/10/2020)

04/10/2020

481 DECLARATION of Vanessa Barsanti filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 480 Joint MOTION to Compel REGARDING PLAINTIFFS RFP NO. 44 (Attachments: # 1 Exhibit 1)(Horvitz, Rachel) (Entered: 04/10/2020)

04/13/2020

482 Joint MOTION to Compel Defendants to Seek and Produce Information Reasonably Available and Within Their Control, filed by Intervenor Plaintiff State of Washington. (Attachments: # 1 Proposed Order) Noting Date 4/13/2020, (Stallings-Ala'ilima, Chalia) (Entered: 04/13/2020)

04/13/2020

483 DECLARATION of Chalia Stallings-Ala'ilima filed by Intervenor Plaintiff State of Washington re 482 Joint MOTION to Compel Defendants to Seek and Produce Information Reasonably Available and Within Their Control (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Stallings-Ala'ilima, Chalia) (Entered: 04/13/2020)

04/13/2020

484 DECLARATION of Andrew E. Carmichael filed by Intervenor Plaintiff State of Washington re 482 Joint MOTION to Compel Defendants to Seek and Produce Information Reasonably Available and Within Their Control (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12,

# 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Stallings-Ala'ilima, Chalia) (Entered: 04/13/2020)

04/15/2020

485 ORDER granting Plaintiff-Intervenor Washington State's Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters' 480 LCR 37 Joint Submission Regarding Plaintiffs' RFP No. 44. The Government will produce, by May 1, 2020, all documents responsive to this Request. Signed by Judge Marsha J. Pechman. (PM) Modified on 4/16/2020 to correct filers of motion (PM). (Entered: 04/15/2020)

04/16/2020

NOTICE of Docket Text Modification re 485 Order: corrected names of filers of motion to Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (PM) (Entered: 04/16/2020)

04/20/2020

486 ORDER granting the State of Washington's 482 Motion to Compel Defendants to Seek and Produce Information Reasonably Available and Within Their Control. Defendants shall produce the requested information or file their stipulation by May 8, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/20/2020)

04/23/2020

487 ORDER REQUIRING ADDITIONAL INFORMATION TO COMPLETE IN CAMERA PRIVILEGE REVIEW RE DOCUMENTS WITHHELD AS NON-RESPONSIVE (DKT. NOS. 449 , 455 , 464 . The Court ORDERS Defendants to produce by May 1, 2020: (1) the root documents to which the claimed privileged family documents were attached, and (2) a revised privilege log that includes the document number of the root document and the corresponding document number of the family documents submitted for in camera review. The privilege log should also include the PrivWithhold page ranges of the documents submitted for in camera review. Further, any future privilege logs for documents withheld based upon an assertion of privilege will contain a column designated PrivWithold which will identify the page range of any documents withheld pursuant to a claim of privilege. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/23/2020)

04/27/2020

488 MOTION for Extension of Time to Respond to Court's Order Regarding LCR 37 Joint Submission on Plaintiffs' RFP 44, filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of

Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 5/8/2020, (Carmichael, Andrew) (Entered: 04/27/2020)

04/27/2020

489 DECLARATION of Andrew E Carmichael filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America re 488 MOTION for Extension of Time to Respond to Court's Order Regarding LCR 37 Joint Submission on Plaintiffs' RFP 44 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Carmichael, Andrew) (Entered: 04/27/2020)

04/30/2020

490 MOTION for Extension of Time for Discovery Motions, filed by Intervenor Plaintiff State of Washington. (Attachments: # 1 Proposed Order) Noting Date 4/30/2020, (Stallings-Ala'ilima, Chalia) (Entered: 04/30/2020)

04/30/2020

491 DECLARATION of Chalia Stallings-Ala'ilima filed by Intervenor Plaintiff State of Washington re 490 MOTION for Extension of Time for Discovery Motions (Attachments: # 1 Exhibit Exhibit A)(StallingsAla'ilima, Chalia) (Entered: 04/30/2020)

05/01/2020

NOTICE REGARDING LACK OF PROPER SIGNATURES. The 490 LCR 37 Expedited Joint Motion to Extend Discovery Motions was improperly signed by Chalia I. Stallings-Ala'ilima, Andrew E. Carmichael, Derek A. Newman. Signatures must be in accordance with FRCP 11 and must comply with ECF Filing Procedures. Please file corrected signature page using Praecipe to Attach event and link to original filing. (PM) (Entered: 05/01/2020)

05/01/2020

492 PRAECIPE to attach document re 490 MOTION for Extension of Time for Discovery Motions by Intervenor Plaintiff State of Washington (Attachments: # 1 Corrected Signature Pages)(Stallings-Ala'ilima, Chalia) (Entered: 05/01/2020)

05/01/2020

493 NOTICE OF FILING INTERIM RESPONSE TO RFP NO. 44 AND ECF NO. 485 ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 05/01/2020)

05/01/2020

495 NOTICE OF FILING ADDITIONAL MATERIALS FOR IN CAMERA REVIEW PURSUANT TO ECF NO. 487 ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United

States Department of Defense, United States of America. (Attachments: # 1 Privilege Log)(Skurnik, Matthew) (Entered: 05/01/2020)

05/04/2020

Reset Hearings: Telephone Conference continued to Wednesday, 5/13/2020 at 9:00 AM before Judge Marsha J. Pechman to allow time for briefing on recently filed motions. Written order to follow.(LW) (Entered: 05/04/2020)

05/04/2020

497 Joint MOTION to Compel , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 5/4/2020, (Sykes, Jason) (Entered: 05/04/2020)

05/05/2020

498 STIPULATION AND PROPOSED ORDER TO EXTEND BRIEFING by parties re 488 MOTION for Extension of Time to Respond to Court's Order Regarding LCR 37 Joint Submission on Plaintiffs' RFP 44 (Horvitz, Rachel) (Entered: 05/05/2020)

05/06/2020

499 ORDER re Parties' 498 Joint Stipulation to Extend Briefing to Defendants' 488 MOTION for Extension of Time to Respond to Court's Order Regarding LCR 37 Joint Submission on Plaintiffs' RFP 44. Plaintiff and Plaintiff-Intervenor's Response due 5/13/2020; Defendants' Reply due 5/19/2020. Signed by Judge Marsha J. Pechman (Noting Date of 488 Motion is reset to 5/19/2020) (PM) (Entered: 05/06/2020)

05/06/2020 500 JOINT STATUS REPORT signed by all parties. (Sykes, Jason) (Entered: 05/06/2020)

05/06/2020 501 STIPULATION AND PROPOSED ORDER by parties re 486 Order on Motion to Compel, (Carmichael, Andrew) (Entered: 05/06/2020)

05/06/2020

502 DECLARATION Andrew E Carmichael re 501 Stipulation by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Carmichael, Andrew) (Entered: 05/06/2020)

05/08/2020

503 Joint MOTION for Protective Order , filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 5/8/2020, (Carmichael, Andrew) (Entered: 05/08/2020)

05/08/2020

504 DECLARATION of Andrew E Carmichael filed by Intervenor Defendant Department of Homeland Security, Defendants Mark Esper, Kevin K McAleenan, Donald J Trump, United States Department of

Defense, United States of America re 503 Joint MOTION for Protective Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Carmichael, Andrew) (Entered: 05/08/2020)

05/08/2020

505 RESPONSE by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America (Skurnik, Matthew) (Entered: 05/08/2020)

05/08/2020

506 RESPONSE by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters (Sykes, Jason) (Entered: 05/08/2020)

05/11/2020

507 STIPULATION AND ORDER extending until June 5, 2020, Defendants' time to respond to the Court's order concerning Washington Interrogatory Nos. 9 and 16 and Requests for Production Nos. 9 and 16 per parties' 501 Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/11/2020)

05/11/2020

508 ORDER granting Plaintiffs' 490 Motion for Extend the Discovery Motions Deadlines. Motions related to discovery due 5/29/2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/11/2020)

05/12/2020

509 ORDER RE MOTION TO COMPEL THE GOVERNMENT'S WITHHELD COMMUNICATIONS WITH THIRD PARTIES (DKT. NO. 440 ); REQUIRING PRODUCTION OF DOCUMENTS AFTER IN CAMERA REVIEW. The Defendants will produce Priv/Withholding pages 1-109, 120-174, 185-357, 368-496, 517-1414 to plaintiffs not later than May 20, 2020. Defendants will provide further information on why Priv/Withhold document 110-119 should not be ordered produced not later than May 20, 2020. Defendants will produce copies of the Easton and Carmichael Declarations to plaintiffs (except Ex. 6 to Carmichael Declaration) not later than May 20, 2020. Defendants' claims of privilege relating to the email chain attached as Ex. 6 to the Carmichael Declaration are sustained. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/12/2020)

05/13/2020

510 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Lowell Williams; Pla Counsel: Daniel Siegfried, Jordan Heinz, Jason Sykes, Tara Borelli, Vanessa Barsanti, Rachel Horvitz, Chalia Stallings-Ala'Ilima (Intervenor Pla Counsel); Def Counsel: Matthew Skurnik, Andrew Carmichael, James Powers; CR: Nancy Bauer; Time of Hearing: 9:00 AM; Telephonic Status Conference held on 5/13/2020. Also present: Hon. James Donohue,

05/13/2020 05/14/2020 05/14/2020 05/14/2020 05/15/2020

Special Master. Court discusses with counsel issues raised in the parties' joint status report. Court will issue an order on the items discussed and the deadlines set. Next Status Conference (by telephone) set for 6/23/2020 at 9:00 AM before Judge Marsha J. Pechman. (LW) (Entered: 05/13/2020)
511 STIPULATION AND PROPOSED ORDER by parties re 488 MOTION for Extension of Time to Respond to Court's Order Regarding LCR 37 Joint Submission on Plaintiffs' RFP 44 (Horvitz, Rachel) (Entered: 05/13/2020)
512 ORDER re parties' 511 Second Joint Stipulation to Extend Briefing on Defendants' 488 MOTION for Extension of Time to Respond. Plaintiff and Plaintiff-Intervenor's response due 5/20/2020; Defendants' reply due 5/26/2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/14/2020)
513 ORDER re 510 Status Conference re: 500 Joint Status Report. Finding that Defendants have outstanding production deadlines that will not be met before the current discovery deadline date, the Court GRANTS the Plaintiffs' Motion. (Dkt. No. 500 at 2-6.). The Parties will provide the Court with a proposed updated schedule before the next status conference on June 23, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/14/2020)
514 ORDER granting Plaintiff's 497 Motion to Compel. The Court ORDERS Defendants to produce the random sample of 350 documents to the Court for an in camera review by May 29, 2020. Further, Defendants must provide Plaintiffs with an accurate list of withheld documents and privilege assertions by May 22, 2020 and the Plaintiffs must provide Defendants with the randomized list of 350 documents by May 26, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/14/2020)
515 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephonic status conference held on 5/13/2020 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through

PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov.

05/20/2020

Release of Transcript Restriction set for 8/13/2020, (NB) (Entered: 05/15/2020)
516 STIPULATION AND PROPOSED ORDER by parties (Skurnik, Matthew) (Entered: 05/20/2020)

05/20/2020

517 JOINT STIPULATION CONCERNING THE COURT'S ORDERS ON PLAINTIFFS' REQUEST FOR PRODUCTION NO. 44 AND WASHINGTON'S REQUEST FOR PRODUCTION NO. 16 per parties' 516 Stipulation. Defendants' 488 Motion for Extension of Time shall be denied as moot. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/20/2020)

05/20/2020 05/29/2020 05/29/2020 05/29/2020

518 NOTICE re 509 Order,,, ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 05/20/2020)
519 ORDER denying Defendants' 503 Motion for Protective Order but allowing that Defendants may instruct their designated Rule 30(b)(6) witnesses not to answer where necessary to assert the deliberative process privilege over topics implicated by the Ninth Circuit's administrative stay. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/29/2020)
520 Unopposed MOTION for Extension of Time , filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters. (Attachments: # 1 Proposed Order) Noting Date 5/29/2020, (Horvitz, Rachel) (Entered: 05/29/2020)
521 DECLARATION of Jason B. Sykes filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Ryan Karnoski, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters re 520 Unopposed MOTION for Extension of Time (Attachments: # 1 Exhibit A)(Horvitz, Rachel) (Entered: 05/29/2020)

05/29/2020

522 IN CAMERA REVIEW OF DOCUMENTS SUBMITTED PURSUANT TO THE COURT'S ORDER ON DOCUMENTS WITHHELD BY THE GOVERNMENT AS NON-RESPONSIVE (DKT. NOS. 455 , 464 ). After close consultation with the Special Master following the review of each document submitted by the Defendants, the Court finds that the Government has been overbroad in its privilege assertions, straying far outside the bounds of the deliberative process privilege and asserting the attorney-client privilege without care. The Government can and should do better. The Court therefore ORDERS the Government to produce all documents listed in the attached exhibit in which N has been marked in the column labelled Privileged (as modified by permissible redactions set forth in the Reasons column) not later than June 5, 2020. The Government need not produce documents that have been labelled by a Y or have no designation in the Privileged column. Signed by Judge Marsha J. Pechman. (Attachments: # 1 Attachment to Order on In Camera Review for Family Documents) (PM) (Entered: 05/29/2020)

05/29/2020

523 Unopposed MOTION for Extension of Time to Comply with Dkt. 514, filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Proposed Order) Noting Date 5/29/2020, (Skurnik, Matthew) (Entered: 05/29/2020)

05/29/2020

524 NOTICE REGARDING INITIAL FILING OF DOCUMENTS FOR IN CAMERA REVIEW ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 05/29/2020)

06/01/2020

526 ORDER granting Plaintiffs' 520 Motion to Extend Discovery Motions Deadline. The current discovery motions deadline is extended and the Parties will provide the Court with a proposed alternate deadline to be included in the updated case schedule due to the Court prior to the next status conference schedule for June 23, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 06/01/2020)

06/01/2020

527 ORDER granting Parties' 523 Joint Stipulated Motion for Extension of Time to Comply with Dkt. No. 514 . Defendants shall complete their production of the 350 randomly selected documents withheld solely on the basis of the deliberative process no later than June 5, 2020. Signed by Judge Marsha J. Pechman. (PM) (Entered: 06/01/2020)

06/05/2020

528 NOTICE of Compliance re 522 Order,,,,, by Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America. (Powers, James) (Entered: 06/05/2020)

06/05/2020

529 NOTICE REGARDING COMPLETION OF FILING OF DOCUMENTS FOR IN CAMERA REVIEW ; filed by Intervenor Defendants Department of Homeland Security, Elaine C. Duke, Defendants Mark Esper, James N Mattis, Kevin K McAleenan, Donald J Trump, United States Department of Defense, United States of America. (Skurnik, Matthew) (Entered: 06/05/2020)

06/11/2020

531 NOTICE REGARDING MOTIONS TO TRANSFER ; filed by Plaintiffs American Military Partner Association, D.L., Jane Doe, Gender Justice League, Human Rights Campaign, Terece Lewis, Lindsey Muller, Cathrine Schmid, Phillip Stephens, Megan Winters, Amicus Legal Voice. (Sykes, Jason) (Entered: 06/11/2020)

06/15/2020

532 MINUTE ORDER directing Defendants to file an updated privilege log for the Court's in camera review re: Dkt Nos. 525 and 530 . Revised privilege log to be submitted by close of business on Thursday, June 18. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 06/15/2020)

06/18/2020

533 NOTICE of Compliance re 532 Minute Order,, by Defendants Mark Esper, Donald J Trump, United States Department of Defense, United States of America. (Attachments: # 1 Exhibit)(Powers, James) (Entered: 06/18/2020)

06/19/2020 534 JOINT STATUS REPORT signed by all parties. (Sykes, Jason) (Entered: 06/19/2020)

06/23/2020

535 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Lowell Williams; Pla Counsel: Jordan Heinz, Jason Sykes, Vanessa Barsanti, Rachel Horwitz, Sasha Buchert, Kara Ingelhart, Peter Perkowski, Chalia Stallings-Ala'Ilima (Intervenor Pla Counsel); Def Counsel: Matthew Skurnik, Andrew Carmichael; CR: Debbie Zurn; Time of Hearing: 9:00 AM; Video Status Conference held on 6/23/2020 via ZoomGov. Also present: Hon. James Donohue, Special Master. Court discusses with counsel issues raised in the parties' joint status report. Court will issue an order by 6/24/2020 on the items discussed and the deadlines set. Next Status Conference to be set in mid-July 2020. Courtroom deputy to coordinate date with counsel.(LW) (Entered: 06/23/2020)

06/23/2020

Set Hearings: Next Status Conference set for 7/21/2020 at 9:00 AM before Judge Marsha J. Pechman. (LW) (Entered: 06/23/2020)

06/24/2020

536 ORDER re JUNE 23, 2020 STATUS CONFERENCE. Defendants are ORDERED to produce for in camera review a randomized selection of 500 additional documents that were withheld solely on the basis of the deliberative process privilege. Both Parties are ORDERED to answer the Court's questions regarding the 350 documents previously submitted for in camera review and provide any necessary additional information regarding the decisional timeline provided. Signed by Judge Marsha J. Pechman. (TH) (Entered: 06/24/2020)

 
 Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 1 of 29

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 RYAN KARNOSKI; STAFF SERGEANT

Case No. 2:17-cv-1297

CATHRINE SCHMID; D.L., formerly known as

11 K.G., by his next friend and mother, LAURA

12

GARZA; HUMAN RIGHTS CAMPAIGN; and GENDER JUSTICE LEAGUE,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

Plaintiffs,

14

v.

15 DONALD J. TRUMP, in his official capacity as

16

President of the United States; the UNITED STATES OF AMERICA; JAMES N. MATTIS, in

17 his official capacity as Secretary of Defense; and

the UNITED STATES DEPARTMENT OF 18 DEFENSE,

19

Defendants.

20

21

NATURE OF ACTION

22

1. This action challenges the constitutionality of an official federal policy of

23 discrimination against transgender people regarding military service. There are currently

24 thousands of transgender individuals who are bravely serving in our nation’s military across

25 myriad roles, and there are many transgender individuals who seek to follow the same noble path.

26 Like other service members, these transgender individuals are willing to place themselves in

27 harm’s way—and potentially pay the ultimate price—in service of our country. But their

28 President deprives them of an opportunity to serve on equal terms as others simply because they

COMPLAINT - 1 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 2 of 29

1 are transgender.

2

2. The U.S. military previously excluded open service by transgender individuals but

3 it reversed that policy in 2016. Following extensive study and deliberation, the U.S. Department

4 of Defense (“DoD”) concluded that a ban on open service by transgender individuals was

5 inconsistent with the military’s goal of maintaining an all-volunteer force in which any individual

6 who is qualified to serve has the opportunity to do so. On June 30, 2016, DoD lifted its previous

7 categorical ban. For more than a year after that change, transgender individuals in the military

8 were able to serve openly and authentically alongside their fellow service members. This change

9 strengthened our nation’s military readiness.

10

3. On July 26, 2017, President Donald J. Trump unexpectedly and abruptly reversed

11 course on the military’s policy. He took to social media to announce, through three tweets, that

12 “the United States Government will not accept or allow . . . [t]ransgender individuals to serve in

13 any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming

14 . . . victory and cannot be burdened with the tremendous medical costs and disruption that

15 transgender [sic] in the military would entail. Thank you[.]”

16

4. This unilateral decision to exclude transgender people from the military was made

17 without any meaningful deliberative process and was directly contrary to the considered

18 judgment of the military. For example, President Trump failed to engage in any meaningful

19 consultation with Secretary of Defense James N. Mattis or the other range of military officials

20 who would ordinarily be consulted about a policy change of this nature and magnitude.

21

5. In the evening of Friday, August 25, 2017, President Trump followed up on his

22 tweets and implemented an official federal policy of discrimination against transgender

23 individuals in military service (“the Ban”). Among other things, President Trump has mandated

24 that the U.S. military return to its earlier policy and practice of discrimination against

25 transgender people, including by discharging them. He has also maintained and extended the

26 current bar on accession into the military of individuals known to be transgender (“the current

27 accessions bar”). Last, he has singled out for adverse treatment the health care needs of

28 transgender service members.
COMPLAINT - 2 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 3 of 29

1

6. Dripping with animus, the Ban and the current accessions bar violate the equal

2 protection and due process guarantees of the Fifth Amendment and the free speech guarantee of

3 the First Amendment. They are unsupported by any compelling, important, or even rational

4 justification.

5

PARTIES

6 A. 7

Plaintiffs 7. Plaintiff Ryan Karnoski is a 22-year-old man who resides in Seattle, Washington.

8 He wishes to serve in the military. Mr. Karnoski is transgender.

9

8. Plaintiff Staff Sergeant Cathrine Schmid (“Staff Sergeant Schmid”) is a 33-year-

10 old woman who resides in Lakewood, Washington. She has served in the U.S. Army for

11 approximately twelve-and-a-half years and is currently stationed at Joint Base Lewis-McChord in

12 Washington. Staff Sergeant Schmid is transgender.

13

9. Plaintiff D.L., formerly known as K.G., is a male high school student who resides

14 in Corpus Christi, Texas. He wishes to serve in the military. D.L. is transgender. (Mr. Kanorski,

15 Staff Sergeant Schmid, and D.L. are referred to collectively as the “individual plaintiffs.”)

16

10. Plaintiff Human Rights Campaign (“HRC”) is largest national lesbian, gay,

17 bisexual, transgender, and queer (“LGBTQ”) civil rights organization in America. HRC’s

18 principal place of business is in Washington, D.C.

19

11. Plaintiff Gender Justice League (“GJL”) is a Washington state gender and

20 sexuality civil and human rights organization. GJL’s principal place of business is in Seattle,

21 Washington. (HRC and GJL are referred to collectively as the “organizational plaintiffs.”)

22 B. 23

Defendants 12. President Donald J. Trump is the President of the United States of America and

24 Commander in Chief of the U.S. military. President Trump instituted the Ban.

25

13. The United States of America encompasses all federal agencies and departments

26 responsible for implementing the Ban and the current accessions bar, including the U.S.

27 Department of Defense and the Department of Homeland Security.

28

14. Secretary James N. Mattis is the Secretary of the U.S. Department of Defense. He

COMPLAINT - 3 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 4 of 29

1 is responsible for the implementation of the Ban and for the administration and enforcement of

2 the current accessions bar.

3

15. The U.S. Department of Defense is an executive branch department of the U.S.

4 federal government composed of the office of the Secretary of Defense; the Joint Chiefs of Staff;

5 the Joint Staff; America’s Defense Agencies; the Department of Defense Field Activities; the

6 Departments of the Army, Navy, and Air Force; the unified and specified combatant commands,

7 such other offices, agencies, activities, and commands as may be established or designated by law

8 or by the President; and all offices, agencies, activities, and commands under any of their control

9 or supervision. Under the direction of Secretary Mattis, DoD is also responsible for

10 administration and enforcement of the Ban and of the current accessions bar.

11

JURISDICTION AND VENUE

12

16. Subject matter jurisdiction exists under 28 U.S.C. §§ 1331 and 1346 because this

13 action arises under, is founded upon, and seeks to redress the deprivation of rights secured by,

14 the United States Constitution.

15

17. Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(e).

16 Mr. Karnoski, Staff Sergeant Schmid, and GJL all reside within this district. In addition, the ban

17 is enforced, and the impact of it is felt, in this district. A substantial part of the events or

18 omissions that gave rise to Plaintiffs’ claims, including particularly those of Mr. Karnoski, HRC,

19 and GJL, occurred in King County, Washington.

20

18. This Court has the authority to enter a declaratory judgment and to provide

21 preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

22 Civil Procedure and 28 U.S.C. §§ 2201 and 2202.

23

19. This Court has personal jurisdiction over Defendants because their enforcement

24 of the Ban and the current accessions bar occurs within Washington.

25

FACTUAL ALLEGATIONS

26 A. 27

Background Information Regarding Transgender Individuals 20. Gender identity is a person’s fundamental, internal sense of belonging to a

28 particular gender. It is a core characteristic of human identity that everyone possesses. Gender

COMPLAINT - 4 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 5 of 29

1 identity is innate, biologically rooted, and fixed at an early age.

2

21. Although most people have a gender identity that matches their sex assigned at

3 birth, this is not the case for transgender people, who are defined as transgender because their

4 gender identity does not match the sex they were assigned at birth. Transgender people have

5 existed throughout human history, although understanding of transgender people has grown in

6 modern times.

7

22. An individual’s sex is generally assigned at birth based on external genitalia. But

8 other sex-related characteristics can include chromosomes, hormone levels, internal reproductive

9 organs, and gender identity.

10

23. When someone’s sex-related characteristics are not in typical alignment with each

11 other, gender identity is the critical determinant of sex. Attempts to change an individual’s

12 gender identity to bring it into alignment with the sex that the individual was assigned at birth are

13 ineffective and potentially harmful.

14

24. The discordance between one’s gender identity and the sex one was assigned at

15 birth can be associated with clinically significant distress, which is known as gender dysphoria.

16 Gender dysphoria can be treated in accordance with internationally recognized standards of care.

17

25. Living in a manner consistent with one’s gender identity is critical to the health

18 and well-being of transgender people and is a key aspect of treatment for gender dysphoria. The

19 process by which transgender individuals come to live in a manner consistent with their gender

20 identity, rather than the sex they were assigned at birth, is known as transition.

21

26. The steps that transgender people take to transition are not identical, but they

22 generally include social, legal, and medical transition.

23

27. Social transition entails the adoption of a gender role matching one’s gender

24 identity. For example, for a man who is transgender, social transition can include wearing typical

25 male attire, using male pronouns, and otherwise living as a man in all aspects of everyday life.

26

28. Legal transition involves steps to conform one’s legal identity to one’s gender

27 identity, such as legally changing one’s name and updating the name and gender marker on one’s

28 driver’s license and birth certificate.
COMPLAINT - 5 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 6 of 29

1

29. Medical transition includes treatment that brings one’s body into alignment with

2 one’s gender identity, such as hormone therapy. Whether any particular treatment is medically

3 necessary or even appropriate, however, depends on the needs of the individual.

4

30. These various components associated with transition—social, legal, and medical

5 transition—do not change an individual’s gender, which is already determined by gender

6 identity, but instead bring the individual’s social presentation, legal identity, and physical

7 appearance into greater typical alignment with their gender.

8 B. 9

Plaintiff Ryan Karnoski 31. Plaintiff Ryan Karnoski comes from a family with a legacy of military service. His

10 grandfather and step-grandfather served in the Army during the Korean War, and other of his

11 relatives have served in the Army and Navy.

12

32. Mr. Karnoski’s desire to join the military came into sharper focus following the

13 death of his cousin, who was killed in action in Afghanistan in 2009. His cousin’s death—and the

14 toll that it took on surviving family members—further impressed upon Mr. Karnoski the

15 tremendous sacrifice that service members make for their country. Mr. Karnoski also realized

16 that his own desire to serve in the military was motivated by more than simply a family legacy: it

17 was a personal calling in life for him, and it is something that he has long dreamt of being able to

18 fulfill.

19

33. Mr. Karnoski works as a mental health clinician in Seattle, Washington.

20

34. Mr. Karnoski holds a Masters in Social Work from the University of Washington

21 School of Social Work’s Child Welfare Training Advancement Program. He also holds a

22 Bachelor of Arts degree in both Social Welfare and Gender, Women, and Sexuality Studies from

23 the University of Washington. Mr. Karnoski is currently registered with the Selective Service.

24

35. But for the Ban and the current accessions bar, and Defendants’ enforcement of

25 them both, Mr. Karnoski would seek to join the military, and he is ready and able to pursue a

26 military career. In fact, he contacted military recruiters in or around September 2016, but he was

27 open about his transgender status and discussed with a recruiter having to wait until the current

28 accessions bar was lifted. Mr. Karnoski was referred to recruiting offices in King County,

COMPLAINT - 6 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 7 of 29

1 Washington, his point of contact for further communications regarding his accession.

2

36. Mr. Karnoski would like to put his social work skills to use for the military. Social

3 work is an area for which there can be significant need in the military, including in the Army and

4 Navy. Given that Mr. Karnoski holds a master’s degree in social work, he aspires to serve as an

5 officer in the military.

6

37. Mr. Karnoski is transgender. He was assigned the sex of female at birth but his

7 gender identity is male.

8

38. Mr. Karnoski began to come to terms with his gender identity approximately five

9 years ago.

10

39. Mr. Karnoski began living openly as male in 2014.

11

40. In consultation with health care professionals, Mr. Karnoski has taken clinically

12 appropriate steps to transition.

13

41. Mr. Karnoski has taken legal steps to transition. He legally changed his first name

14 to Ryan. He also changed his name and gender marker to male on his driver’s license, birth

15 certificate, social security card and records, and passport.

16

42. Mr. Karnoski has engaged in speech and conduct disclosing his transgender status

17 and expressing his gender identity and wants to continue to be able to do so.

18 C. 19

Plaintiff Staff Sergeant Cathrine Schmid 43. Plaintiff Staff Sergeant Cathrine (“Katie”) Schmid was born at K.I. Sawyer Air

20 Force Base, Michigan, and was raised in Portland, Oregon. She has always been a patriotic

21 American with a desire to serve others and was drawn to opportunities presented by serving in

22 the Army. She is proud to put on her uniform each day and serve her country.

23

44. Staff Sergeant Schmid holds the military occupational specialty of Signals

24 Intelligence Analyst within the Army, currently performing duties as Brigade Land and

25 Ammunition Manager. Before her current role, she performed duties as a Signals Intelligence

26 Analyst, All-Source Analysis System Master Analyst, Human Intelligence Collector, and

27 Counterintelligence Agent. She joined the Army in 2005.

28
COMPLAINT - 7 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 8 of 29

1

45. Staff Sergeant Schmid is transgender. She was assigned the sex of male at birth

2 but has a female gender identity. She knew from a young age in life that she was female.

3

46. Staff Sergeant Schmid began to come to terms with her gender identity

4 approximately four years ago. At that time, she started to see a mental health professional who

5 diagnosed her with gender dysphoria.

6

47. Staff Sergeant Schmid began living openly as a woman around 2014.

7

48. In consultation with health care professionals, Staff Sergeant has taken clinically

8 appropriate steps to transition, and she has further transition-related health care needs.

9

49. Staff Sergeant Schmid has taken legal steps to transition. She legally changed her

10 first name to Cathrine. She also changed her name and changed her gender marker to female on

11 her driver’s license, passport, and social security records.

12

50. Staff Sergeant Schmid has worked with her chain of command throughout her

13 transition, and both they and other enlisted personnel have been supportive of her throughout

14 that process. Her gender marker in the military’s personnel management systems (including the

15 Defense Enrollment Eligibility Reporting System) reflects that she is female.

16

51. She is recognized and treated as female in all aspects of military life, including in

17 social interactions and in her compliance with women’s grooming and physical training

18 requirements.

19

52. The fact that Staff Sergeant Schmid is transgender has not prevented her from

20 doing her job in the military nor has it prevented others from doing their jobs in the military.

21 Staff Sergeant Schmid performs valuable services for the Army, and her performance of those

22 duties strengthen our nation’s military readiness.

23

53. Being able to serve openly as a transgender woman has made Staff Sergeant

24 Schmid a stronger asset for the military. She is able to function as a productive, healthy member

25 of the military, and she is able to forge stronger relationships with others in her unit.

26

54. In June 2017, Staff Sergeant Schmid submitted an application to become an Army

27 warrant officer. A warrant officer is a highly specialized expert and trainer in a technical area such

28 as aviation, military police, or, in Staff Sergeant Schmid’s case, intelligence. Her application was

COMPLAINT - 8 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 9 of 29

1 approved at the initial stages.

2

55. But the military’s current accessions bar not only excludes transgender individuals

3 from enlistment but also from appointment as officers, even where an individual is already

4 serving in the military. Staff Sergeant Schmid was informed in writing in July 2017 that her

5 application was placed on hold, and thus was not being considered further at the time, because of

6 the current accessions bar, which has now been indefinitely extended by the Ban. Staff Sergeant

7 Schmid has been deprived of an equal opportunity to become a warrant officer because of

8 President Trump’s issuance of the Ban, because of his extension of the current accessions bar,

9 and because of the Defendants’ enforcement of them both.

10

56. Staff Sergeant Schmid has engaged in speech and conduct disclosing her

11 transgender status and expressing her gender identity, including by coming out to her chain of

12 command and her fellow service members, taking steps to transition, and living openly as a

13 woman in military life. She wants to continue to be able to engage in speech and conduct

14 disclosing her transgender status and expressing her gender identity.

15 D. 16

Plaintiff D.L. 57. Plaintiff D.L. was born in Alice, Texas and currently resides in Corpus Christi,

17 Texas. D.L.’s great grandfather and great uncle both served in the Army, and the former earned a

18 Purple Heart for his service. D.L. is proud of his family’s history of service and has a strong

19 desire to serve his country by joining the military as well.

20

58. After years of consideration, research, and speaking to veterans of different

21 services, D.L. decided to pursue a career in the military. Specifically, D.L. wants to serve as a

22 Survival, Evasion, Resistance and Escape Specialist in the Air Force. This position entails

23 training other Airmen on survival-related techniques needed, for various terrains and climates, in

24 the event that their aircraft goes down.

25

59. Existing regulations permit individuals to join the military at age 17 with parental

26 consent. Based on his age, D.L. is eligible to join the military as of August 2017, and D.L.’s

27 mother and next friend, Laura Garza, supports D.L. in his desire to join the military.

28
COMPLAINT - 9 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 10 of 29

1

60. D.L. anticipates receiving his high school diploma in roughly September 2017.

2 D.L. has long planned and hoped to join the Air Force upon completion of high school.

3

61. In preparation for enlistment, D.L. communicated with an Air Force recruiter in

4 early July 2017. When D.L. disclosed to the recruiter that he is transgender, the recruiter stopped

5 communicating with D.L.

6

62. But for the Ban and the current accessions bar, and Defendants’ enforcement of

7 them both, D.L. would seek to join the military, and he is ready and able to pursue a military

8 career.

9

63. D.L. is transgender. He was assigned the sex of female at birth but his gender

10 identity is male.

11

64. D.L. came out about his gender identity in the summer of 2015. He has lived

12 openly as male since that time.

13

65. In consultation with health care professionals, D.L. has taken clinically

14 appropriate steps to transition.

15

66. D.L. has engaged in speech and conduct disclosing his transgender status and

16 expressing his gender identity, including by coming out to the Air Force recruiter, taking steps to

17 transition, and living openly as male in his everyday life. He wants to be able to continue to

18 engage in speech and conduct disclosing his transgender status and expressing his gender

19 identity.

20 E. 21

Plaintiff Human Rights Campaign 67. HRC is a private, non-profit membership organization with approximately

22 508,000 members throughout the United States, including transgender members serving in the

23 United States military and transgender members who wish to serve in the United States military.

24 The mission of HRC is to end discrimination against LGBTQ people and realize a world that

25 achieves fundamental fairness and equality for all, including ending discrimination against

26 LGBTQ people who wish to serve their country.

27

68. HRC sues on behalf of its members, including Mr. Karnoski, Staff Sergeant

28 Schmid, and other prospective and current transgender service members who are currently

COMPLAINT - 10 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 11 of 29

1 adversely affected by the Ban and the current accessions bar.

2 F. 3

Plaintiff Gender Justice League 69. GJL is a civil and human rights membership organization that, as relevant here,

4 advocates on behalf of transgender individuals in Washington state. It seeks to create a

5 community for transgender people and to empower them to combat the structural oppression,

6 discrimination, and violence they face in their daily lives.

7

70. GJL sues on behalf of its members, including Mr. Karnoski, Staff Sergeant

8 Schmid, and other prospective and current transgender service members who are currently

9 adversely affected by the Ban and the current accessions bar.

10 G. 11

Prior Military Ban Against Transgender Individuals 71. There has never been a federal statute excluding transgender people from military

12 service. Instead, the military previously had a policy of excluding transgender people from service

13 based on DoD and service-specific rules and regulations.

14

72. This earlier military policy was based on an inaccurate, historical, pathological

15 view that regarded transgender people as deviants. This view was discredited long ago following

16 psychological and medical advances in the understanding of gender identity and of transgender

17 people.

18

73. Despite this earlier policy of exclusion, transgender people have always served in

19 the military but, as noted by former Secretary of Defense Ash Carter (“Secretary Carter”),

20 “they often had to serve in silence alongside their fellow comrades in arms.”

21

74. Transgender people have played essential, mission-critical roles in the military,

22 even when they have not had the ability to serve openly. For example, a transgender woman

23 served on Navy SEAL Team 6 and earned a Purple Heart and a Bronze Star, among many other

24 ribbons and medals.

25

75. According to a 2014 study conducted by the Williams Institute at the University of

26 California, Los Angeles, there are an estimated 134,300 transgender people who are veterans or

27 are retired from guard or reserve service.

28
COMPLAINT - 11 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 12 of 29

1

76. It is a statistical certainty that there have been transgender people who have

2 sacrificed their lives in the course of military service to the United States.

3 H. 4

Rescission of Prior Military Ban Against Transgender Individuals 77. The military’s prior ban against transgender people was the subject of extensive

5 research and study, which concluded that it lacked any valid justification.

6

78. For example, in March 2014, the Transgender Military Service Commission (the

7 “Commission”) issued a report analyzing the military’s former ban. The Commission, which

8 was co-chaired by a former U.S. Surgeon General, was convened to determine whether the ban

9 was based on medically sound reasons. The Commission found that there was “no compelling

10 medical rationale” for banning military service by transgender people.

11

79. In May 2014, then-Secretary of Defense Chuck Hagel publicly stated that he was

12 receptive to reviewing and reassessing the rules that govern service by transgender people. He

13 explained that “[e]very qualified American who wants to serve our country should have an

14 opportunity if they fit the qualifications and can do it.”

15

80. In July 2015, Secretary Carter admitted that DoD’s regulations regarding

16 transgender service members “[were] outdated and [were] causing uncertainty that distracted

17 commanders from our core missions.” He also recognized the many transgender people who

18 were already serving in the military: “We have transgender soldiers, sailors, airmen and

19 Marine—real, patriotic Americans—who I know are being hurt by an outdated, confusing,

20 inconsistent approach that’s contrary to our value of service and individual merit.”

21

81. Accordingly, Secretary Carter announced the creation of a working group to study

22 for six months the policy and readiness implications of permitting transgender individuals to

23 serve openly. This working group was chaired by the Under Secretary of Defense for Personnel

24 and Readiness and comprised senior representatives from each of the military services, the Joint

25 Staff, and relevant components from Office of the Secretary of Defense.

26

82. In addition to creating a working group, Secretary Carter also directed that,

27 effective July 13, 2015, no service member could be involuntarily separated or denied

28 reenlistment or continuation of active or reserve service on the basis of their gender identity

COMPLAINT - 12 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 13 of 29

1 without the approval of the Under Secretary of Defense for Personnel and Readiness.

2

83. On information and belief, separations of service members on the basis of their

3 gender identity fell sharply after July 2015, and there were very few, if any, service members who

4 were separated on that basis from July 2015 to June 2016. In effect, transgender people served

5 openly in the military from July 2015 to June 2016, as well as likely before that period, albeit

6 under the threat of separation.

7

84. In or around July 2015, Secretary Carter also directed the commencement of a

8 study to evaluate the implications of allowing transgender personnel to serve openly in the

9 military. DoD commissioned the RAND Corporation, a non-profit, non-partisan research

10 organization, to conduct the study. DoD asked RAND to (1) identify the health care needs of the

11 transgender population and the costs associated with providing transition-related care to

12 transgender service members, (2) assess the readiness implications of allowing transgender

13 service members to serve openly, and (3) review the experiences of foreign militaries that permit

14 transgender individuals to serve openly. The findings from the study, which reflected the

15 culmination of months of research and spanned 91 pages, were publicly released in May 2016.

16

85. As detailed further below, the RAND study demonstrated that the cost of

17 providing transition-related care is exceedingly small relative to DoD’s overall health care

18 expenditures, that there are no readiness implications that prevent transgender members from

19 serving openly, and that foreign militaries have successfully permitted open service without a

20 negative effect on effectiveness, readiness, or unit cohesion.

21

86. The leadership of the Armed Services—including the Joint Chiefs of Staff, the

22 Service Secretaries, and Secretary Carter—together with personnel, training, readiness, and

23 medical specialists from across DoD, studied the available data, including the findings and

24 analysis from RAND. They also received input from transgender service members, from outside

25 expert groups, and from medical professionals outside DoD. They looked carefully at what

26 lessons could be learned from outside the U.S. military, including from allied militaries that

27 permit transgender people to serve openly, as well as from the private sector.

28
COMPLAINT - 13 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 14 of 29

1

87. As a result of this deliberative process and year-long study, on June 30, 2016,

2 Secretary Carter announced that the military was ending the ban on open service by transgender

3 people. The conclusion was supported by, among other things, the need to recruit and retain the

4 individuals most highly qualified to serve. Effective immediately, transgender service members

5 were permitted to serve openly and could no longer be discharged or otherwise separated from

6 the military solely for being transgender. DoD materials explained that “[t]his policy change was

7 crafted through a comprehensive and inclusive process that included the leadership of the Armed

8 Services, medical and personnel experts across the Department, transgender Service members,

9 outside medical experts, advocacy groups, and the RAND Corporation.”

10

88. In the accompanying directive-type memorandum regarding the policy change,

11 Secretary Carter explained that the policies and procedures permitting open service were

12 premised on the conclusion that “open service by transgender Service members . . . is consistent

13 with military readiness and with strength through diversity.”

14

89. The policy change was announced through a press conference held by Secretary

15 Carter as well as through a section of the DoD website titled “Department of Defense

16 Transgender Policy,” which was still active in the days following President Trump’s July 26,

17 2017 tweets. That website lists the highlights of the policy change, links to various DoD resources

18 related to the policy change, and includes a video that assures transgender individuals:

19 “Transgender Members Can Now Serve Openly.”

20

90. DoD planned a 12-month implementation process that would proceed in stages,

21 beginning with the needs of current service members and their commanders, followed by training

22 for the entire force, and concluding with the accession of transgender recruits.

23

91. On September 30, 2016, within 90 days after the lifting of the ban, DoD issued a

24 training handbook for commanders, transgender service members, and the force, titled

25 “Transgender Service in the U.S. Military: An Implementation Handbook.” The 71-page

26 handbook was designed to help transgender service members in their transition, help

27 commanders with their duties and responsibilities, and help all service members understand the

28 new policies allowing open service by transgender service members. The handbook illustrates

COMPLAINT - 14 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 15 of 29

1 that open service has been workable and practicable.

2

92. Also within 90 days of the lifting of the prior ban, DoD issued medical guidance

3 for providing transition-related care to transgender service members, who were also able to begin

4 the process to officially change their gender marker in the military’s personnel management

5 systems.

6

93. Over the next nine months following the lifting of the prior ban (i.e., from October

7 2016 to June 2017), the services conducted training of the force based on detailed guidance and

8 training materials regarding the policy change.

9

94. Finally, it was envisioned that by July 1, 2017, the military would begin accessing

10 transgender people who meet all relevant standards—holding them to the same physical and

11 mental fitness standards as everyone else who wishes to serve in the military.

12

95. On or around June 30, 2017, Secretary Mattis deferred the accession of

13 transgender individuals until January 1, 2018. There was no change in the decision about whether

14 transgender individuals would be able to join the military but instead merely a change in when

15 they could begin to do so.

16

96. But for President Trump’s implementation of the Ban, the military would have

17 begun the accession of transgender individuals on January 1, 2018.

18 I. 19

Current Policy of Discrimination Against Transgender Individuals in Military Service

20

97. Through a series of three tweets on July 26, 2017, President Trump unilaterally

21 reversed the U.S. military’s policy of permitting open service by transgender individuals and

22 dismantled the years of work that led to the development and implementation of that policy.

23

98. At 8:55 a.m. Eastern time, President Trump tweeted: “After consultation with my

24 Generals and military experts, please be advised that the United States Government will not

25 accept or allow......”

26

99. At 9:04 a.m. Eastern time, President Trump tweeted: “....Transgender

27 individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive

28 and overwhelming.....”
COMPLAINT - 15 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 16 of 29

1

100. At 9:08 a.m. Eastern time, President Trump tweeted: “....victory and cannot be

2 burdened with the tremendous medical costs and disruption that transgender [sic] in the military

3 would entail. Thank you[.]”

4

101. The “process” that led to the Ban—to the extent there was any meaningful

5 process at all—was the antithesis of the deliberative, comprehensive, and inclusive process that

6 led to the rescission of the prior ban.

7

102. President Trump failed to engage in any meaningful study, deliberation, or

8 consultation with key military officials, including Secretary Mattis, before making the decision to

9 exclude transgender individuals from the military. Indeed, President Trump tweeted about his

10 decision when Secretary Mattis was on vacation and reportedly provided Secretary Mattis with

11 only one day’s notice of the decision.

12

103. Before the President’s Twitter announcement, other top Pentagon officials were

13 similarly unaware of his decision to ban transgender individuals from the military. In fact, in the

14 nine minutes between the President’s tweet at 8:55 a.m. Eastern Time (which stated, “After

15 consultation with my Generals and military experts, please be advised that the United States

16 Government will not accept or allow......”) and his next tweet at 9:04 a.m. Eastern Time, there

17 were concerns that President Trump was declaring war on North Korea.

18

104. The Joint Chiefs of Staff, including Chairman General Joseph Dunford, were not

19 aware that President Trump planned to tweet about a renewed ban on transgender service

20 members. Military service chiefs from the U.S. Army, Marine Corps, Navy, Air Force, and, upon

21 information and belief, the U.S. Coast Guard were all blindsided by the President’s Twitter

22 announcement.

23

105. Indeed, on June 19, 2017, Chairman General Dunford stated: “Transgender

24 personnel are serving right now, and there is no ongoing review that would affect the ability of

25 those currently serving to continue serving, provided they can meet the physical and mental

26 qualifications of service, be worldwide deployable, and [meet] the same standards that every

27 other soldier, sailor, airmen, [and] marine meets.”

28
COMPLAINT - 16 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 17 of 29

1

106. Before the President’s Twitter announcement, the Pentagon press office was also

2 unaware of the President’s decision to again ban transgender people from the military.

3 Immediately after the President’s tweets, a Pentagon spokesperson, Navy Captain Jeff Davis,

4 declined to answer media questions about them, instead telling media: “call the White House.”

5

107. On July 26, 2017, White House Press Secretary Sarah Huckabee Sanders also

6 could not answer a basic question about the proposed new ban: whether transgender individuals

7 currently serving in the military would be discharged. Instead, she responded that DoD and the

8 White House “[would] have to work together” to figure that out. She also could not say for

9 certain who would even take the lead on implementation but “imagine[d]” that it would be DoD.

10

108. Even White House lawyers and aides, who had advised President Trump against

11 banning transgender individuals from the military, were blindsided by the President’s tweets

12 announcing the intended ban. Indeed, one White House official admitted that President Trump

13 took to Twitter to announce the change because the President was frustrated that others wanted

14 to engage in further discussion and analysis of the issues involved. According to a White House

15 official, President Trump stated that the announcement “would stop the lawyers from arguing

16 with him anymore” and trying to dissuade him from reinstituting a ban on transgender military

17 service.

18

109. On information and belief, President Trump also never spoke to a single

19 transgender person regarding the potential impact of his proposed ban before deciding to

20 institute it.

21

110. Several congressional and White House sources reported that part of the

22 President’s motivation for the policy change was to shore up support for a spending bill that

23 would have funded his desired border wall with Mexico and other campaign promises. There was

24 concern that the spending bill would not pass the House of Representatives because some

25 Republican members wanted a ban on military funding for transition-related care, which

26 Republican leadership would not permit, and thus these members might cause the defeat of the

27 entire spending bill. Indeed, on July 13, 2017—almost two weeks before the tweets—the House

28 had previously rejected a proposed amendment that would have banned coverage for transition-

COMPLAINT - 17 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 18 of 29

1 related care for transgender service members. These Republican members turned to President

2 Trump, who quickly went much further than banning coverage for transition-related care and

3 instead announced his intention to ban transgender members from military service altogether,

4 presumably as a last-ditch to save the spending bill at issue.

5

111. A Trump administration official also suggested that the President’s policy change

6 was motivated by a desire to gain political advantage over Democrats, stating: “This forces

7 Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin, to take complete ownership of

8 this issue. How will the blue collar voters in these states respond when senators up for re-election

9 in 2018 like Debbie Stabenow are forced to make their opposition to this a key plank of the

10 campaigns?”

11

112. Then-Deputy Assistant to President Trump Sebastian Gorka stated on July 28,

12 2017, that the military is “not there to reflect America” but instead “to kill people and blow stuff

13 up.” He derided the inclusion of transgender service members in the military as “Obama-era

14 social engineering.” He also cited reports that 40 percent of transgender people have attempted

15 suicide at some point in their lives as a justification for excluding them from military service—

16 failing to recognize or acknowledge the role that discrimination plays in that statistic—and

17 asserted that “we don’t need to try and force them into the hierarchical military environment

18 where they are under the utmost pressure to kill or be killed.” Mr. Gorka continued, “that is why

19 the President is doing this—out of warmth of his consideration for this population.” That

20 statement is false.

21

113. President Trump’s unilateral decision to bar transgender individuals from the

22 military has been met with widespread opposition and condemnation, including by elected

23 representatives from both main political parties. For example, Republican Senator John McCain,

24 Chair of the Senate Armed Services Committee, stated “We should all be guided by the principle

25 that any American who wants to serve our country and is able to meet the standards should have

26 the opportunity to do so—and should be treated as the patriots they are.” Similarly, Republican

27 Senator Richard Shelby stated, “You ought to treat everybody fairly and you ought to give

28 everybody a chance to serve.” Republican Senator Lindsey Graham added, “This is something

COMPLAINT - 18 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 19 of 29

1 we should... not make a decision [about] based off a tweet.” Furthermore, more than 50 House

2 members, including those on the House Judiciary Committee and Armed Services Committee,

3 joined a letter stating that the President’s decision to ban transgender individuals from the

4 military was unconstitutional on its face.

5

114. Attorneys general from 19 states and the District of Columbia joined a letter

6 denouncing the President’s exclusion of transgender individuals from the military as “blatant

7 discrimination” that violates “fundamental constitutional and American values.” The states

8 include California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts,

9 Minnesota, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia

10 and Washington.

11

115. Fifty-six retired generals and admirals issued a public statement on August 1,

12 2017, warning that the proposed ban on transgender service members would downgrade military

13 readiness. The statement notes that two four-star generals and former chairmen of the Joint

14 Chiefs of Staff—Army General Martin Dempsey and Navy Admiral Mike Mullen—have publicly

15 supported open service by transgender individuals.

16 J. 17

Implementation of Discrimination Against Transgender Individuals in Military Service

18

116. On or around July 31, 2017, Navy Captain Jeff Davis stated that, upon receiving

19 any “formal direction” from the President, DoD officials “would provide implementing

20 guidance and implement accordingly.” He added that the military was ready “to make [it]

21 happen” once the formal direction was received.

22

117. On or around August 14, 2017, Secretary Mattis informed reporters: “I’ve got my

23 people over there in the room to give [the White House] any military background that they might

24 need to inform them.” But he added, “[t]hey write their own policy of course, so we’re in a

25 supporting role right now.”

26

118. On August 25, 2017, President Trump issued a memorandum entitled “Military

27 Service by Transgender Individuals” (the “Memorandum”) to the Secretary of Defense and the

28 Secretary of Homeland Security (“DHS”). The Memorandum institutes the Ban.

COMPLAINT - 19 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 20 of 29

1

119. President Trump has admitted that, until June 2016, DoD and DHS “generally

2 prohibited openly transgender individuals from accession in the United States military and

3 authorized the discharge of such individuals.” President Trump’s avowed purpose in issuing the

4 Memorandum and the Ban is to “return” the United States to that “longstanding” policy and

5 practice of discrimination.

6

120. In light of both President Trump’s tweets, his Memorandum, and the Ban,

7 transgender service members are now no longer able to serve openly on the same terms as before

8 his tweets, his Memorandum, and the Ban, notwithstanding any purported effective dates set

9 forth in the Memorandum. Any present-day speech or conduct that “openly” discloses a

10 transgender individual’s gender identity or transgender status places them in violation of

11 President Trump’s Memorandum and the Ban, subjecting them to discharge and other “action . .

12 . against [them].”

13

121. President Trump’s Memorandum also mandates that the Secretary of Defense

14 and the Secretary of Homeland Security “maintain the currently effective policy regarding

15 accession of transgender individuals into military service beyond January 1, 2018.” As a result,

16 individuals known to be transgender are currently and now indefinitely barred from enlistment

17 and appointment in the military.

18

122. Lastly, President Trump’s Memorandum mandates that the Secretary of Defense

19 and the Secretary of Homeland Security “halt all use of DoD or Department of Homeland

20 Security resources to fund sex-reassignment [sic] surgical procedures for military personnel,

21 except to the extent necessary to protect the health of an individual who has already begun a

22 course of treatment to reassign his or her sex.” The Memorandum selectively targets the health

23 care needs of transgender service members for adverse treatment for no legitimate reason.

24

123. Transition-related health care, including surgical care, can be medically necessary

25 for an individual, regardless of whether that individual has already begun a course of treatment to

26 transition.

27

124. All Defendants—President Trump, the U.S., Secretary Mattis, and DoD—are

28 responsible for implementing and enforcing the Ban and the current accessions bar.

COMPLAINT - 20 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 21 of 29

1 K. 2

Purported Justifications for Policy of Discrimination Against Transgender Individuals

3

125. The Ban and the current accessions bar are not supported by any compelling,

4 important, or even rational government interest.

5

126. The Ban and the current accessions bar lack any narrowly-tailored, substantially-

6 related, or even rational relationship to any legitimate government interest, and they are not the

7 least restrictive means of achieving any valid government interest.

8

127. Neither of the purported justifications cited by President Trump for the

9 reinstatement of the prior ban in his tweets—medical costs and disruption—nor any of the after-

10 the-fact justifications drafted by others in defense of his tweets has any basis in reality. Indeed,

11 they are rebutted by, among other things, the fact that transgender individuals have already

12 served openly for more than a year without any of these concerns materializing.

13

1. Medical Costs

14

128. With respect to the issue of medical cost, DoD’s own commissioned study by

15 RAND estimated that providing transition-related care to active-duty service members would

16 cost between $2.4 million and $8.4 million annually—which is “an amount that will have little

17 impact on and represents exceedingly small proportion of [active component] health care

18 expenditures (approximately $6 billion in FY 2014) and overall DoD health care expenditures

19 ($49.3 billion actual expenditures [in FY 2014] . . .).”

20

129. The RAND study mirrored earlier research findings. A 2015 article published in

21 the New England Journal of Medicine estimated that the cost of providing transition-related care

22 to service members would be approximately $5.6 million annually or 22 cents per member per

23 month. The article concluded that any plausible estimate of the cost involved is equivalent to a

24 “rounding error” in the military’s nearly-$50 billion annual health care budget.

25

130. The surgeon general of the Navy also noted in December 2016 that most of the

26 medical care for transgender service members was already provided to others in relation to

27 similar medical needs.

28
COMPLAINT - 21 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 22 of 29

1

131. Providing transition-related care also mitigates other costs that the military would

2 otherwise be required to bear. The RAND study noted that the adverse consequences of not

3 providing transition-related care to transgender personnel could include causing these individuals

4 to avoid other necessary health care altogether, such as important preventive services, as well as

5 increased rates of mental and substance abuse disorders, and suicide, and reduced productivity.

6

132. Implementing a ban against transgender individuals in the military will cost the

7 federal government many times more in taxpayer dollars than any cost associated with allowing

8 transgender individuals to continue serving and to join the military. Implementation costs include

9 the high expense of separating or dismissing people subject to the policy and the cost of finding

10 replacements for and training non-transgender individuals to replace them. A recent study

11 estimated that it would cost $960 million dollars to recruit and train the replacements for all the

12 transgender individuals who are currently serving in the military—more than one hundred times

13 the upper estimate of the cost of providing transition-related care for one year.

14

2. Military Readiness

15

133. There is also no military readiness justification for the policy of excluding

16 transgender individuals from the military.

17

134. The RAND study found that less than 0.0015 percent of total available labor-

18 years, defined as the amount of work done by an individual in a year, would be affected by

19 permitting transgender individuals to openly serve. This is because, even on the high end of

20 estimates, less than 0.1 percent of the total force would seek transition-related care that could

21 temporarily affect their ability to deploy.

22

135. Existing data also show that there is no impact on unit cohesion that would

23 prevent transgender individuals from serving openly.

24

136. The military has previously adapted to the eradication of other forms of

25 discrimination including racial desegregation, the end of the anti-lesbian, gay, and bisexual

26 “Don’t Ask, Don’t Tell” policy, and the integration of women into direct combat positions. The

27 military was able to adapt to the inclusion of transgender troops serving openly as well,

28 particularly with the benefit of force-wide training and clear guidance implemented by the

COMPLAINT - 22 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 23 of 29

1 military.

2

137. Eighteen countries allow transgender people to serve openly in the military:

3 Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland,

4 France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, and the United

5 Kingdom. The RAND study focused on the policies of four countries with the most well-

6 developed and publicly available policies on transgender military service members—Australia,

7 Canada, Israel, and the United Kingdom. In no case did the study find any evidence of an adverse

8 effect on operational effectiveness, operational readiness, or cohesion of the force.

9

CAUSES OF ACTION

10

FIRST CAUSE OF ACTION

EQUAL PROTECTION VIOLATION

11

(By All Plaintiffs Against All Defendants)

12

138. Plaintiffs incorporate paragraphs 1 through 137 as though fully set forth herein.

13

139. All Plaintiffs state this cause of action against all Defendants (including President

14 Trump and Secretary Mattis, in exclusively their official capacities) for purposes of seeking

15 declaratory and injunctive relief, and challenge the Ban and the current accessions bar both

16 facially and as applied to them or, as to the organizational plaintiffs, as applied to their members.

17

140. The Fifth Amendment to the United States Constitution provides that no person

18 shall be deprived of life, liberty, or property without due process of law. The Due Process Clause

19 includes within it a prohibition against the denial of equal protection by the federal government,

20 its agencies, or its officials or employees.

21

141. Defendants’ disparate treatment of transgender individuals facially and

22 intentionally discriminates against transgender individuals based on sex-related considerations.

23

142. Discrimination based on sex-related considerations includes, but is not limited to,

24 discrimination based on gender nonconformity, gender identity, transgender status, and gender

25 transition.

26

143. The Department of Defense’s Transgender Service Member Policy

27 Implementation Fact Sheet, posted on the Department of Defense’s official website, admits that

28 “Any discrimination against a Service member based on their gender identity is sex

COMPLAINT - 23 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 24 of 29

1 discrimination.”

2

144. Discrimination because an individual is transgender is both discrimination based

3 on a sex-related consideration, which at a minimum requires courts to apply intermediate

4 scrutiny in evaluating the constitutionality of the government’s discrimination, and

5 discrimination based on transgender status, which requires courts to apply strict scrutiny to such

6 discrimination.

7

145. Government discrimination against transgender individuals bears all the indicia of

8 a suspect classification requiring strict scrutiny by the courts.

9

a. Transgender people have suffered a long history of extreme discrimination

10

and continue to suffer such discrimination to this day.

11

b. Transgender people are a discrete and insular group and lack the political

12

power to protect their rights through the legislative process. Transgender

13

people have largely been unable to secure express federal, state, and local

14

protections specifically protecting them against discrimination, and have

15

been and continue to be regularly targeted by anti-transgender legislation,

16

regulations, bills, and other government action.

17

c. A person’s gender identity or transgender status bears no relation to that

18

person’s ability to contribute to society.

19

d. Transgender people constitute a small minority of the population. In

20

addition, gender identity is a core, defining trait and is so fundamental to

21

one’s identity and conscience that a person cannot be required to abandon

22

it as a condition of equal treatment. Gender identity is also generally fixed

23

at an early age and highly resistant to voluntary change. Efforts to change

24

gender identity have been condemned by leading medical and

25

psychological authorities as harmful, and have been barred by numerous

26

states, the District of Columbia, and numerous local governments.

27

146. Defendants’ disparate treatment of transgender individuals like the individual

28 plaintiffs and the transgender members of the organizational plaintiffs deprives them of their

COMPLAINT - 24 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 25 of 29

1 right to equal dignity and stigmatizes them as second-class citizens in violation of equal

2 protection guarantees.

3

147. There is not even a legitimate justification for such disparate treatment, let alone

4 the important or compelling one that is constitutionally required.

5

148. The Ban and current accessions bar are motivated by impermissible animus

6 towards transgender people and are thus invalid as a whole.

7

SECOND CAUSE OF ACTION

DUE PROCESS VIOLATION

8

(By All Plaintiffs Against All Defendants)

9

149. Plaintiffs incorporate paragraphs 1 through 137 as though fully set forth herein.

10

150. All Plaintiffs state this cause of action against all Defendants (including President

11 Trump and Secretary Mattis, in exclusively their official capacities) for purposes of seeking

12 declaratory and injunctive relief, and challenge the Ban and current accessions bar both facially

13 and as applied to them or, as to the organizational plaintiffs, as applied to their members.

14

151. Defendants’ conduct, including their enforcement of the Ban and current

15 accessions bar, violates the rights of the individual plaintiffs and of the transgender members of

16 the organizational plaintiffs under the Fifth Amendment’s Due Process Clause. The Due Process

17 Clause protects each person’s fundamental liberty to individual dignity, autonomy, and privacy.

18 That includes the right to define and express one’s own identity, to define one’s own concept of

19 existence, and to make intimate decisions concerning marriage, procreation, and family life, all

20 without undue government interference.

21

152. A person’s gender identity constitutes a core aspect of individual self-definition.

22 The Ban and current accessions bar diminish the personhood, dignity, and autonomy of the

23 individual plaintiffs and of the transgender members of the organizational plaintiffs, and

24 impermissibly interfere with the most intimate choices a person may make in a lifetime, including

25 the right to self-expression and to live openly and authentically.

26

153. Where the government impermissibly burdens a fundamental liberty interest, such

27 government action may be sustained only upon a showing that it is, at the very least, substantially

28 related to an important government interest, if not narrowly tailored to serve a compelling

COMPLAINT - 25 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 26 of 29

1 government interest. Here, the Ban and the current accessions bar lack adequate tailoring and fail

2 to serve even a legitimate governmental interest. Indeed, they epitomize the very kind of arbitrary

3 and capricious government action that the Due Process Clause forbids.

4

154. Defendants have also violated the due process rights of the individual plaintiffs

5 and of the transgender members of the organizational plaintiffs to the extent that they

6 detrimentally relied on the military’s policy, extant during the period of June 2016 to August

7 2017, of permitting open service by transgender individuals.

8

THIRD CAUSE OF ACTION

FREE SPEECH VIOLATION

9

(By All Plaintiffs Against All Defendants)

10

155. Plaintiffs incorporate paragraphs 1 through 137 as though fully set forth herein.

11

156. All Plaintiffs state this cause of action against all Defendants (including President

12 Trump and Secretary Mattis, in exclusively their official capacities) for purposes of seeking

13 declaratory and injunctive relief, and challenge the Ban and current accessions bar both facially

14 and as applied to them or, as to the organizational plaintiffs, as applied to their members.

15

157. The Ban and current accessions bar violate the Free Speech Clause of the First

16 Amendment because they impermissibly burden and chill the exercise of the individual plaintiffs’

17 and of the organizational plaintiffs’ transgender members’ constitutionally protected speech,

18 expression, expressive conduct, and expressive association, based on the content and viewpoint

19 of their speech.

20

158. All the individual plaintiffs and transgender members of the organizational

21 plaintiffs have been open about their status as transgender either in the context of seeking to join

22 the military or in the course of their military service. All individual plaintiffs and transgender

23 members of organizational plaintiffs want to continue being open about their status as

24 transgender, and to continue expressing and conducting themselves consistently with their

25 gender.

26

159. The gender expression of the individual plaintiffs and of transgender members of

27 the organizational plaintiffs, the conduct of those individuals that is consistent with their gender,

28 and those individuals’ disclosure of their transgender status, all constitute protected First

COMPLAINT - 26 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 27 of 29

1 Amendment activity. Similarly, the advocacy of those individuals for fairness for transgender

2 service members and an end to discrimination against transgender individuals in military service,

3 and those individuals’ association with other transgender people and their allies for expressive

4 purposes, constitute protected First Amendment activity.

5

160. The purpose and effect of the Ban and current accessions bar are to chill

6 constitutionally protected First Amendment activity. Indeed, the Memorandum on its face

7 demonstrates that it is directed at suppressing the gender expression and related expressive

8 conduct of transgender individuals, including that of the individual plaintiffs and transgender

9 members of the organizational plaintiffs , and those individuals’ disclosure of their transgender

10 status: specifically, the Memorandum states that policy is changing by returning to one that

11 prohibits “openly transgender individuals” from accession, authorizes the discharge of such

12 individuals, and prevents transgender individuals from serving “openly in the military”

13 (emphases added).

14

161. The Ban and current accessions bar penalize the individual plaintiffs, transgender

15 members of the organizational plaintiffs, other transgender service members, and other

16 transgender individuals who would like to join the military or be appointed as officers, for their

17 gender expression. The Ban and current accessions bar chill the protected First Amendment

18 activity of a person of ordinary firmness who is transgender by requiring such persons either to

19 attempt to deny who they are and suppress expression of their gender or be denied military

20 service on the same terms as others. The ban also chills these individuals’ right to advocate for

21 fair treatment for transgender service members for fear that this advocacy will identify them as

22 transgender. For the same reason, the exclusion chills exercise of their right to associate with

23 other transgender service members and their allies and form or participate in expressive

24 associations for the purpose of advocating for an end to the exclusion.

25

162. The individual plaintiffs and transgender members of the organizational plaintiffs

26 are harmed by being denied the opportunity to serve in the military on the same terms as other

27 service members. All of the individual plaintiffs and transgender members of the organizational

28 plaintiffs face a realistic danger of sustaining a direct injury as a result of implementation,

COMPLAINT - 27 [2:17-cv-1297]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 28 of 29

1 operation, or enforcement of the terms of the Ban as well as the current accessions bar. For

2 example, Mr. Karnoski and D.L. are harmed by being denied the opportunity to serve in the

3 military. Staff Sergeant Schmid is being refused appointment as a warrant officer due to the

4 current accessions bar, and she also faces a realistic danger that she will sustain a direct injury

5 from implementation of the Ban, which requires a return to the exclusion of transgender service

6 members from the military.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs respectfully request that this Court:

9

1. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-02, declaring the Ban and the

10 current accessions bar unconstitutional on their face and as applied to the individual plaintiffs and

11 transgender members of the organizational plaintiffs for the reasons set forth above;

12

2. Preliminarily and permanently enjoin Defendants, their agents, employees,

13 representatives, successors, and any other person or entity subject to their control or acting

14 directly or indirectly in concert with them from enforcing the Ban or the current accessions bar,

15 including by enjoining any separation, discharge, adverse action, or denial of promotion,

16 reenlistment, continuation of service, accession, or appointment because an individual is

17 transgender.

18

3. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees pursuant to 28

19 U.S.C. § 2412 and any other applicable laws; and

20

4. Grant any injunctive or other relief that this Court deems just, equitable, and

21 proper.

22

23 Respectfully submitted August 28, 2017. 24

NEWMAN DU WORS LLP

25 26 27 28
COMPLAINT - 28 [2:17-cv-1297]

_________________________
Derek A. Newman, WSBA #26967 dn@newmanlaw.com 2101 Fourth Ave., Ste. 1500 Seattle, WA 98121 (206) 274-2800

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297 Document 1 Filed 08/28/17 Page 29 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT - 29 [2:17-cv-1297]

LAMDBA LEGAL DEFENSE AND EDUCATION FUND, INC. Tara Borelli, WSBA #36759 tborelli@lambdalegal.org Jon W. Davidson (pro hac vice pending) Camilla B. Taylor (pro hac vice pending) Peter Renn (pro hac vice pending) Natalie Nardecchia (pro hac vice pending) Sasha Buchert (pro hac vice pending) Kara Ingelhart (pro hac vice pending) Carl Charles (pro hac vice pending) 730 Peachtree Street NE, Ste. 640 Atlanta, GA 30308 (404) 897-1880
OUTSERVE-SLDN, INC. Peter Perkowski (pro hac vice pending)
KIRKLAND & ELLIS LLP James F. Hurst, P.C. (pro hac vice pending) Jordan Heinz (pro hac vice pending)
Attorneys for Plaintiffs

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

 
 Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 1 of 41

1 The Honorable Marsha J. Pechman
2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8

9

RYAN KARNOSKI; STAFF SERGEANT CATHRINE SCHMID; D.L., formerly known as

Case No. 2:17-cv-01297-MJP

10 K.G., by his next friend and mother, LAURA

11 12

GARZA; CHIEF WARRANT OFFICER LINDSEY MULLER; PETTY OFFICER FIRST CLASS TERECE LEWIS; PETTY OFFICER SECOND CLASS PHILLIP STEPHENS; PETTY

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

OFFICER SECOND CLASS MEGAN WINTERS; JANE DOE; CONNER

14 CALLAHAN; HUMAN RIGHTS CAMPAIGN; GENDER JUSTICE LEAGUE; AND
15 AMERICAN MILITARY PARTNER

16 ASSOCIATION,

17

Plaintiffs,

18

v.

19

DONALD J. TRUMP, in his official capacity as President of the United States; the UNITED

20 STATES OF AMERICA; JAMES N. MATTIS, in his official capacity as Secretary of Defense; and

21 the UNITED STATES DEPARTMENT OF

DEFENSE, 22 23

Defendants.

24

NATURE OF ACTION

25

1. This action challenges the constitutionality of an official federal policy of

26 discrimination against transgender people regarding military service. There are currently

27 thousands of transgender individuals who are bravely serving in our nation’s military across

28 myriad roles, and there are many transgender individuals who seek to follow the same noble path.

FIRST AMENDED COMPLAINT - 1 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 2 of 41

1 Like other service members, these transgender individuals are willing to place themselves in

2 harm’s way—and potentially pay the ultimate price—in service of our country. But their

3 President deprives them of an opportunity to serve on equal terms as others simply because they

4 are transgender.

5

2. The U.S. military previously excluded open service by transgender individuals but

6 it reversed that policy in 2016. Following extensive study and deliberation, the U.S. Department

7 of Defense (“DoD”) concluded that a ban on open service by transgender individuals was

8 inconsistent with the military’s goal of maintaining an all-volunteer force in which any individual

9 who is qualified to serve has the opportunity to do so. On June 30, 2016, DoD lifted its previous

10 categorical ban. For more than a year after that change, transgender individuals in the military

11 were able to serve openly and authentically alongside their fellow service members. This change

12 strengthened our nation’s military readiness.

13

3. On July 26, 2017, President Donald J. Trump unexpectedly and abruptly reversed

14 course on the military’s policy. He took to social media to announce, through three tweets, that

15 “the United States Government will not accept or allow . . . [t]ransgender individuals to serve in

16 any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming

17 . . . victory and cannot be burdened with the tremendous medical costs and disruption that

18 transgender [sic] in the military would entail. Thank you[.]”

19

4. This unilateral decision to exclude transgender people from the military was made

20 without any meaningful deliberative process and was directly contrary to the considered

21 judgment of the military. For example, President Trump failed to engage in any meaningful

22 consultation with Secretary of Defense James N. Mattis or the other range of military officials

23 who would ordinarily be consulted about a policy change of this nature and magnitude.

24

5. In the evening of Friday, August 25, 2017, President Trump followed up on his

25 tweets and implemented an official federal policy of discrimination against transgender

26 individuals in military service (“the Ban”). Among other things, President Trump has mandated

27 that the U.S. military return to its earlier policy and practice of discrimination against

28 transgender people, including by discharging them. He has also maintained and extended the

FIRST AMENDED COMPLAINT - 2 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 3 of 41

1 current bar on accession into the military of individuals known to be transgender (“the current

2 accessions bar”). Last, he has singled out for adverse treatment the health care needs of

3 transgender service members.

4

6. Dripping with animus, the Ban and the current accessions bar violate the equal

5 protection and due process guarantees of the Fifth Amendment and the free speech guarantee of

6 the First Amendment. They are unsupported by any compelling, important, or even rational

7 justification.

8

PARTIES

9 A. Plaintiffs

10

7. Plaintiff Ryan Karnoski is a 22-year-old man who resides in Seattle, Washington.

11 He wishes to serve in the military. Mr. Karnoski is transgender.

12

8. Plaintiff Staff Sergeant Cathrine Schmid (“Staff Sergeant Schmid”) is a 33-year-

13 old woman who resides in Lakewood, Washington. She has served in the U.S. Army for

14 approximately twelve-and-a-half years and is currently stationed at Joint Base Lewis-McChord in

15 Washington. Staff Sergeant Schmid is transgender.

16

9. Plaintiff D.L., formerly known as K.G., is a male high school student who resides

17 in Corpus Christi, Texas. He wishes to serve in the military. D.L. is transgender.

18

10. Plaintiff Chief Warrant Officer Lindsey Muller (“Chief Warrant Officer Muller”)

19 is a 35-year-old woman who resides in Poplar Bluff, Missouri. She has served in the U.S. Army

20 for more than seventeen years and is currently stationed at U.S. Army Garrison Yongsan Army

21 Base in Seoul, South Korea. Chief Warrant Officer Muller is transgender.

22

11. Plaintiff Petty Officer First Class Terece Lewis (“Petty Officer Lewis”) is a 33-

23 year-old woman who resides in Bremerton, Washington. She has served in the U.S. Navy for

24 approximately fourteen years and is currently stationed on the U.S.S. John C. Stennis. Petty

25 Officer Lewis is transgender.

26

12. Plaintiff Petty Officer Second Class Phillip Stephens (“Petty Officer Stephens”)

27 is a 30-year-old man who resides in Crestview, Florida. He has served in the U.S. Navy for

28 roughly five years and is currently stationed at Eglin Air Force Base in Florida. Petty Officer

FIRST AMENDED COMPLAINT - 3 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 4 of 41

1 Stephens is transgender.

2

13. Plaintiff Petty Officer Second Class Megan Winters (“Petty Officer Winters”) is a

3 29-year-old woman who resides in Alexandria, Virginia. She has served in the U.S. Navy for

4 approximately five years and is currently stationed at Hopper Information Service Center, in the

5 Office of Naval Intelligence in Washington, D.C. Petty Officer Winters is transgender.

6

14. Plaintiff Jane Doe is a 29-year-old woman. She currently serves in the U.S.

7 military. She is transgender. In order to protect her, she has sought leave to proceed as a Doe

8 plaintiff and does not allege her further details about where she resides or her military service.

9

15. Plaintiff Conner Callahan is a 29-year-old man who resides in Asheville, North

10 Carolina. He wishes to serve in the military. Mr. Callahan is transgender. (Mr. Kanorski, Staff

11 Sergeant Schmid, D.L., Chief Warrant Officer Muller, Petty Officer Lewis, Petty Officer

12 Stephens, Petty Officer Winters, Jane Doe, and Mr. Callahan are referred to collectively as the

13 “individual plaintiffs.”)

14

16. Plaintiff Human Rights Campaign (“HRC”) is largest national lesbian, gay,

15 bisexual, transgender, and queer (“LGBTQ”) civil rights organization in America. HRC’s

16 principal place of business is in Washington, D.C.

17

17. Plaintiff Gender Justice League (“GJL”) is a Washington state gender and

18 sexuality civil and human rights organization. GJL’s principal place of business is in Seattle,

19 Washington.

20

18. Plaintiff American Military Partner Association (“AMPA”) is the nation’s largest

21 organization of LGBT military families and their allies. AMPA’s principal place of business is in

22 Washington, D.C. (HRC, GJL, and AMPA are referred to collectively as the “organizational

23 plaintiffs.”)

24 B. 25

Defendants 19. President Donald J. Trump is the President of the United States of America and

26 Commander in Chief of the U.S. military. President Trump instituted the Ban.

27

20. The United States of America encompasses all federal agencies and departments

28 responsible for implementing the Ban and the current accessions bar, including the U.S.

FIRST AMENDED COMPLAINT - 4 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 5 of 41

1 Department of Defense and the Department of Homeland Security.

2

21. Secretary James N. Mattis is the Secretary of the U.S. Department of Defense. He

3 is responsible for the implementation of the Ban and for the administration and enforcement of

4 the current accessions bar.

5

22. The U.S. Department of Defense is an executive branch department of the U.S.

6 federal government composed of the office of the Secretary of Defense; the Joint Chiefs of Staff;

7 the Joint Staff; America’s Defense Agencies; the Department of Defense Field Activities; the

8 Departments of the Army, Navy, and Air Force; the unified and specified combatant commands,

9 such other offices, agencies, activities, and commands as may be established or designated by law

10 or by the President; and all offices, agencies, activities, and commands under any of their control

11 or supervision. Under the direction of Secretary Mattis, DoD is also responsible for

12 administration and enforcement of the Ban and of the current accessions bar.

13

JURISDICTION AND VENUE

14

23. Subject matter jurisdiction exists under 28 U.S.C. §§ 1331 and 1346 because this

15 action arises under, is founded upon, and seeks to redress the deprivation of rights secured by,

16 the United States Constitution.

17

24. Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(e).

18 Mr. Karnoski, Staff Sergeant Schmid, and GJL all reside within this district. In addition, the ban

19 is enforced, and the impact of it is felt, in this district. A substantial part of the events or

20 omissions that gave rise to Plaintiffs’ claims, including particularly those of Mr. Karnoski, HRC,

21 and GJL, occurred in King County, Washington.

22

25. This Court has the authority to enter a declaratory judgment and to provide

23 preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

24 Civil Procedure and 28 U.S.C. §§ 2201 and 2202.

25

26. This Court has personal jurisdiction over Defendants because their enforcement

26 of the Ban and the current accessions bar occurs within Washington.

27

28
FIRST AMENDED COMPLAINT - 5 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 6 of 41

1

FACTUAL ALLEGATIONS

2 A. Background Information Regarding Transgender Individuals

3

27. Gender identity is a person’s fundamental, internal sense of belonging to a

4 particular gender. It is a core characteristic of human identity that everyone possesses. Gender

5 identity is innate, biologically rooted, and fixed at an early age.

6

28. Although most people have a gender identity that matches their sex assigned at

7 birth, this is not the case for transgender people, who are defined as transgender because their

8 gender identity does not match the sex they were assigned at birth. Transgender people have

9 existed throughout human history, although understanding of transgender people has grown in

10 modern times.

11

29. An individual’s sex is generally assigned at birth based on external genitalia. But

12 other sex-related characteristics can include chromosomes, hormone levels, internal reproductive

13 organs, and gender identity.

14

30. When someone’s sex-related characteristics are not in typical alignment with each

15 other, gender identity is the critical determinant of sex. Attempts to change an individual’s

16 gender identity to bring it into alignment with the sex that the individual was assigned at birth are

17 ineffective and potentially harmful.

18

31. The discordance between one’s gender identity and the sex one was assigned at

19 birth can be associated with clinically significant distress, which is known as gender dysphoria.

20 Gender dysphoria can be treated in accordance with internationally recognized standards of care.

21

32. Living in a manner consistent with one’s gender identity is critical to the health

22 and well-being of transgender people and is a key aspect of treatment for gender dysphoria. The

23 process by which transgender individuals come to live in a manner consistent with their gender

24 identity, rather than the sex they were assigned at birth, is known as transition.

25

33. The steps that transgender people take to transition are not identical, but they

26 generally include social, legal, and medical transition.

27

34. Social transition entails the adoption of a gender role matching one’s gender

28 identity. For example, for a man who is transgender, social transition can include wearing typical

FIRST AMENDED COMPLAINT - 6 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 7 of 41

1 male attire, using male pronouns, and otherwise living as a man in all aspects of everyday life.

2

35. Legal transition involves steps to conform one’s legal identity to one’s gender

3 identity, such as legally changing one’s name and updating the name and gender marker on one’s

4 driver’s license and birth certificate.

5

36. Medical transition includes treatment that brings one’s body into alignment with

6 one’s gender identity, such as hormone therapy. Whether any particular treatment is medically

7 necessary or even appropriate, however, depends on the needs of the individual.

8

37. These various components associated with transition—social, legal, and medical

9 transition—do not change an individual’s gender, which is already determined by gender

10 identity, but instead bring the individual’s social presentation, legal identity, and physical

11 appearance into greater typical alignment with their gender.

12 B. 13

Plaintiff Ryan Karnoski 38. Plaintiff Ryan Karnoski comes from a family with a legacy of military service. His

14 grandfather and step-grandfather served in the Army during the Korean War, and other of his

15 relatives have served in the Army and Navy.

16

39. Mr. Karnoski’s desire to join the military came into sharper focus following the

17 death of his cousin, who was killed in action in Afghanistan in 2009. His cousin’s death—and the

18 toll that it took on surviving family members—further impressed upon Mr. Karnoski the

19 tremendous sacrifice that service members make for their country. Mr. Karnoski also realized

20 that his own desire to serve in the military was motivated by more than simply a family legacy: it

21 was a personal calling in life for him, and it is something that he has long dreamt of being able to

22 fulfill.

23

40. Mr. Karnoski works as a mental health clinician in Seattle, Washington.

24

41. Mr. Karnoski holds a Masters in Social Work from the University of Washington

25 School of Social Work’s Child Welfare Training Advancement Program. He also holds a

26 Bachelor of Arts degree in both Social Welfare and Gender, Women, and Sexuality Studies from

27 the University of Washington. Mr. Karnoski is currently registered with the Selective Service.

28
FIRST AMENDED COMPLAINT - 7 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 8 of 41

1

42. But for the Ban and the current accessions bar, and Defendants’ enforcement of

2 them both, Mr. Karnoski would seek to join the military, and he is ready and able to pursue a

3 military career. In fact, he contacted military recruiters in or around September 2016, but he was

4 open about his transgender status and discussed with a recruiter having to wait until the current

5 accessions bar was lifted. Mr. Karnoski was referred to recruiting offices in King County,

6 Washington, his point of contact for further communications regarding his accession.

7

43. Mr. Karnoski would like to put his social work skills to use for the military. Social

8 work is an area for which there can be significant need in the military, including in the Army and

9 Navy. Given that Mr. Karnoski holds a master’s degree in social work, he aspires to serve as an

10 officer in the military.

11

44. Mr. Karnoski is transgender. He was assigned the sex of female at birth but his

12 gender identity is male.

13

45. Mr. Karnoski began to come to terms with his gender identity approximately five

14 years ago.

15

46. Mr. Karnoski began living openly as male in 2014.

16

47. In consultation with health care professionals, Mr. Karnoski has taken clinically

17 appropriate steps to transition.

18

48. Mr. Karnoski has taken legal steps to transition. He legally changed his first name

19 to Ryan. He also changed his name and gender marker to male on his driver’s license, birth

20 certificate, social security card and records, and passport.

21

49. Mr. Karnoski has engaged in speech and conduct disclosing his transgender status

22 and expressing his gender identity and wants to continue to be able to do so.

23 C. Plaintiff Staff Sergeant Cathrine Schmid

24

50. Plaintiff Staff Sergeant Cathrine (“Katie”) Schmid was born at K.I. Sawyer Air

25 Force Base, Michigan, and was raised in Portland, Oregon. She has always been a patriotic

26 American with a desire to serve others and was drawn to opportunities presented by serving in

27 the Army. She is proud to put on her uniform each day and serve her country.

28
FIRST AMENDED COMPLAINT - 8 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 9 of 41

1

51. Staff Sergeant Schmid holds the military occupational specialty of Signals

2 Intelligence Analyst within the Army, currently performing duties as Brigade Land and

3 Ammunition Manager. Before her current role, she performed duties as a Signals Intelligence

4 Analyst, All-Source Analysis System Master Analyst, Human Intelligence Collector, and

5 Counterintelligence Agent. She joined the Army in 2005.

6

52. Staff Sergeant Schmid is transgender. She was assigned the sex of male at birth

7 but has a female gender identity. She knew from a young age in life that she was female.

8

53. Staff Sergeant Schmid began to come to terms with her gender identity

9 approximately four years ago. At that time, she started to see a mental health professional who

10 diagnosed her with gender dysphoria.

11

54. Staff Sergeant Schmid began living openly as a woman around 2014.

12

55. In consultation with health care professionals, Staff Sergeant has taken clinically

13 appropriate steps to transition, and she has further transition-related health care needs.

14

56. Staff Sergeant Schmid has taken legal steps to transition. She legally changed her

15 first name to Cathrine. She also changed her name and changed her gender marker to female on

16 her driver’s license, passport, and social security records.

17

57. Staff Sergeant Schmid has worked with her chain of command throughout her

18 transition, and both they and other enlisted personnel have been supportive of her throughout

19 that process. Her gender marker in the military’s personnel management systems (including the

20 Defense Enrollment Eligibility Reporting System (“DEERS”)) reflects that she is female.

21

58. She is recognized and treated as female in all aspects of military life, including in

22 social interactions and in her compliance with women’s grooming and physical training

23 requirements.

24

59. The fact that Staff Sergeant Schmid is transgender has not prevented her from

25 doing her job in the military nor has it prevented others from doing their jobs in the military.

26 Staff Sergeant Schmid performs valuable services for the Army, and her performance of those

27 duties strengthen our nation’s military readiness.

28
FIRST AMENDED COMPLAINT - 9 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 10 of 41

1

60. Being able to serve openly as a transgender woman has made Staff Sergeant

2 Schmid a stronger asset for the military. She is able to function as a productive, healthy member

3 of the military, and she is able to forge stronger relationships with others in her unit.

4

61. In June 2017, Staff Sergeant Schmid submitted an application to become an Army

5 warrant officer. A warrant officer is a highly specialized expert and trainer in a technical area such

6 as aviation, military police, or, in Staff Sergeant Schmid’s case, intelligence. Her application was

7 approved at the initial stages.

8

62. But the military’s current accessions bar not only excludes transgender individuals

9 from enlistment but also from appointment as officers, even where an individual is already

10 serving in the military. Staff Sergeant Schmid was informed in writing in July 2017 that her

11 application was placed on hold, and thus was not being considered further at the time, because of

12 the current accessions bar, which has now been indefinitely extended by the Ban. Staff Sergeant

13 Schmid has been deprived of an equal opportunity to become a warrant officer because of

14 President Trump’s issuance of the Ban, because of his extension of the current accessions bar,

15 and because of the Defendants’ enforcement of them both.

16

63. Staff Sergeant Schmid has engaged in speech and conduct disclosing her

17 transgender status and expressing her gender identity, including by coming out to her chain of

18 command and her fellow service members, taking steps to transition, and living openly as a

19 woman in military life. She wants to continue to be able to engage in speech and conduct

20 disclosing her transgender status and expressing her gender identity.

21 D. Plaintiff D.L.

22

64. Plaintiff D.L. was born in Alice, Texas and currently resides in Corpus Christi,

23 Texas. D.L.’s great grandfather and great uncle both served in the Army, and the former earned a

24 Purple Heart for his service. D.L. is proud of his family’s history of service and has a strong

25 desire to serve his country by joining the military as well.

26

65. After years of consideration, research, and speaking to veterans of different

27 services, D.L. decided to pursue a career in the military. Specifically, D.L. wants to serve as a

28 Survival, Evasion, Resistance and Escape Specialist in the Air Force. This position entails

FIRST AMENDED COMPLAINT - 10 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 11 of 41

1 training other Airmen on survival-related techniques needed, for various terrains and climates, in

2 the event that their aircraft goes down.

3

66. Existing regulations permit individuals to join the military at age 17 with parental

4 consent. Based on his age, D.L. has been eligible to join the military since August 2017. D.L.’s

5 mother and next friend, Laura Garza, supports D.L. in his desire to join the military.

6

67. D.L. anticipates receiving his high school diploma in roughly September 2017.

7 D.L. has long planned and hoped to join the Air Force upon completion of high school.

8

68. In preparation for enlistment, D.L. communicated with an Air Force recruiter in

9 early July 2017. When D.L. disclosed to the recruiter that he is transgender, the recruiter stopped

10 communicating with D.L.

11

69. But for the Ban and the current accessions bar, and Defendants’ enforcement of

12 them both, D.L. would seek to join the military, and he is ready and able to pursue a military

13 career.

14

70. D.L. is transgender. He was assigned the sex of female at birth but his gender

15 identity is male.

16

71. D.L. came out about his gender identity in the summer of 2015. He has lived

17 openly as male since that time.

18

72. In consultation with health care professionals, D.L. has taken clinically

19 appropriate steps to transition.

20

73. D.L. has engaged in speech and conduct disclosing his transgender status and

21 expressing his gender identity, including by coming out to the Air Force recruiter, taking steps to

22 transition, and living openly as male in his everyday life. He wants to be able to continue to

23 engage in speech and conduct disclosing his transgender status and expressing his gender

24 identity.

25 E. 26

Plaintiff Chief Warrant Officer Muller 74. Plaintiff Chief Warrant Officer Muller is a Chief Warrant Officer 3 in the U.S.

27 Army. She enlisted in the Army in 2000 and has been serving for more than seventeen years.

28
FIRST AMENDED COMPLAINT - 11 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 12 of 41

1

75. Chief Warrant Officer Muller chose the military as a career path because of the

2 abundant job opportunities and her strong sense of patriotism. She has proudly served in combat

3 and takes great pride in wearing the uniform to serve her country. Chief Warrant Officer Muller

4 has served in Operation Iraqi Freedom, Operation Enduring Freedom, and multiple assignments

5 in the Republic of Korea.

6

76. Chief Warrant Officer Muller’s military occupation specialty is Attack Helicopter

7 Pilot/Aviator within the Army and she currently performs duties as an Aviation Safety Officer.

8 Her duties currently involve providing combat support and combat service support to various

9 echelons of commands. She serves as advisor to Commanders on all aviation and ground related

10 safety matters. Chief Warrant Officer Muller is responsible for managing the Battalion

11 Commander’s Safety Program and developing safety policies, safety goals, mission objectives,

12 priorities, and integrating them into daily operations.

13

77. The military has invested significant resources in training Chief Warrant Officer

14 Muller. Her well-honed skills and leadership position make her a highly valued member of the

15 military. Chief Warrant Officer Muller’s performance has been consistently recognized

16 throughout her career in military service.

17

78. Chief Warrant Officer Muller wants to continue serving in the Army.

18

79. Chief Warrant Officer Muller is transgender. She was assigned the sex of male at

19 birth. She has known for more than twelve years that she is female, and began to come to terms

20 with her gender identity approximately five years ago. At that time, Chief Warrant Officer Muller

21 started to see a mental health professional who diagnosed her with gender dysphoria.

22

80. Chief Warrant Officer Muller began living openly as a woman in 2014.

23

81. In consultation with health care professionals, Chief Warrant Officer Muller has

24 taken clinically appropriate steps to transition, and she has further transition-related health care

25 needs—including medically necessary surgical treatment. However, in the aftermath of President

26 Trump’s announcement of the change in policy regarding service by transgender individuals, all

27 efforts to arrange that surgical treatment were called off.

28
FIRST AMENDED COMPLAINT - 12 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 13 of 41

1

82. Chief Warrant Officer Muller has taken legal steps to transition. She has legally

2 changed her first name to Lindsey. She has also changed her name and changed her gender

3 marker to female on her driver’s license, passport, and social security records.

4

83. The fact that Chief Warrant Officer Muller is transgender has not prevented her

5 from doing her job as Aviation Safety Officer nor has her gender identity prevented others from

6 doing their jobs in the military. Chief Warrant Officer Muller performs valuable services for the

7 Army, and her performance of those duties strengthens our nation’s military readiness.

8

84. Being able to serve openly as a transgender woman has made Chief Warrant

9 Officer Muller a stronger asset to the military. Because she has been able to serve openly, she has

10 been able to function as a productive, healthy member of the military, and has been able to forge

11 stronger relationships with others in her unit.

12

85. Chief Warrant Officer Muller has engaged in speech and conduct disclosing her

13 transgender status and expressing her gender identity, including by coming out to her chain of

14 command and fellow service members, taking steps to transition, and living openly as a woman in

15 military life. She wants to continue to be able engage in speech and conduct disclosing her

16 transgender status and expressing her gender identity.

17 F. 18

Plaintiff Petty Officer Lewis 86. Plaintiff Petty Officer Lewis is steadfastly dedicated to the mission of the U.S.

19 Navy—to maintain, train and equip combat-ready Naval forces capable of winning wars,

20 deterring aggression and maintaining freedom of the seas. During her fourteen years of service,

21 Petty Officer Lewis has defended oil platforms in the Arabian Gulf, boarded vessels and seized

22 tons of cocaine in route to the U.S. from South America, protected the shipping lanes from

23 Somali pirates, and defended freedom of navigation in the South China Sea.

24

87. Petty Officer Lewis has served in a variety of roles within the Navy, including as

25 an Engineman and Machinists Mate, as a public affairs officer for a major shore command, and as

26 a career counselor advising Sailors of their career options.

27

88. Petty Officer Lewis is transgender. She was assigned the sex of male at birth.

28 However, she has known since approximately early 2013 that she is female and began to come to

FIRST AMENDED COMPLAINT - 13 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 14 of 41

1 terms with her gender identity shortly thereafter. Petty Officer Lewis then began seeing a mental

2 health professional who diagnosed her with gender dysphoria.

3

89. Petty Officer Lewis began living openly as a woman in late 2016.

4

90. Petty Officer Lewis is taking medical steps to bring her body into conformity with

5 her female gender identity. In consultation with her physician, Petty Officer Lewis began

6 hormone therapy on July 25, 2017, one day before President Trump released the transgender

7 military ban on Twitter.

8

91. Petty Officer Lewis has taken legal steps to transition. She legally changed her first

9 name to Terece and changed her driver’s license and social security documentation.

10

92. Petty Officer Lewis has worked with her chain of command throughout her

11 transition, and both they and other enlisted personnel have been supportive.

12

93. The fact that Petty Officer Lewis is transgender has not prevented her from doing

13 her job in the military. Petty Officer Lewis performs a valuable service for the Navy that

14 strengthens military readiness; excluding her from the military based on her transgender status

15 would weaken military readiness.

16

94. Being able to serve openly as a transgender woman makes Petty Officer Lewis a

17 stronger asset for the military. Because she has been able to serve openly, she has been able to

18 function as a productive, healthy member of the military, without the distress that would

19 otherwise accompany untreated gender dysphoria, and she has been able to forge stronger

20 relationships with others in her unit, without having to pretend to live as someone she is not.

21

95. If permitted to do so, Petty Officer Lewis will re-enlist in the military following the

22 expiration of her current term of service. Indeed, she intends to serve honorably in the military

23 until the age of retirement.

24

96. Petty Officer Lewis has engaged in speech and conduct disclosing her transgender

25 status and expressing her gender identity, including by coming out to her chain of command and

26 fellow service members, taking steps to transition, and living openly as a woman in military life.

27 She wants to continue to be able engage in speech and conduct disclosing her transgender status

28 and expressing her gender identity.
FIRST AMENDED COMPLAINT - 14 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 15 of 41

1 G. Plaintiff Petty Officer Stephens

2

97. Over the past five years, Plaintiff Petty Officer Stephens has served one main role

3 within the Navy: Aviation Structural Mechanic. Petty Officer Stephens has worked on the flight

4 deck of an aircraft carrier ensuring that Navy aircraft pilots are able to safely eject from their

5 aircraft in the event of an emergency. He has performed this duty with honor and precision both

6 during simulated and active duty scenarios, including a deployment to the Persian Gulf.

7

98. Petty Officer Stephens proudly joined the Navy to serve his country and for the

8 security and stability that a military career provides.

9

99. Petty Officer Stephens is transgender. He was assigned the sex of female at birth,

10 but has known since he was a young child that he is male.

11

100. Petty Officer Stephens began to come to terms with his gender identity

12 approximately two years ago and thereafter started to see a mental health professional who

13 diagnosed him with gender dysphoria.

14

101. On June 30, 2016, Petty Officer Stephens was deployed in the Persian Gulf. When

15 he read that the ban on military service by transgender individuals was being lifted, he was filled

16 with incredible relief and joy. Following this change in policy, Petty Officer Stephens decided to

17 remain in the Navy and transition. He began living openly as a man in August 2016, as soon as he

18 returned home from deployment.

19

102. Petty Officer Stephens began scheduling the necessary medical appointments and

20 phone interviews to acquire the required transition-related paperwork to submit to his

21 Commanding Officer. He began taking medical steps to bring his body into conformity with his

22 male gender identity. In consultation with his physician, Petty Officer Stephens began hormone

23 therapy in November 2016. This approved treatment plan includes surgical treatment. The

24 proposed ban on transition-related surgery will bar Petty Officer Stephens from obtaining this

25 medically necessary care.

26

103. Petty Officer Stephens is taking legal steps to transition. He will be legally

27 changing his first name to Phillip and will be changing his name and gender marker on his

28 driver’s license and social security records.
FIRST AMENDED COMPLAINT - 15 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 16 of 41

1

104. Petty Officer Stephens has worked with his chain of command throughout his

2 transition, and both they and other enlisted personnel have been supportive. Since coming out to

3 his chain of command, other service members have addressed Petty Officer Stephens by male

4 pronouns, which match his gender identity. He has been known, accepted, and treated as the

5 man that he is.

6

105. The fact that Petty Officer Stephens is transgender has not prevented him from

7 doing his job in the military. He performs a valuable service for the Navy that strengthens

8 military readiness—keeping our nation’s aircraft systems safe and operational. Conversely, his

9 exclusion from the military on the basis of his transgender status would weaken military

10 readiness.

11

106. Petty Officer Stephens has engaged in speech and conduct disclosing his

12 transgender status and expressing his gender identity, including by coming out to his chain of

13 command and fellow service members, taking steps to transition, and living openly as a man in

14 military life. He wants to continue to be able engage in speech and conduct disclosing his

15 transgender status and expressing his gender identity.

16 H. Plaintiff Petty Officer Winters

17

107. Plaintiff Petty Officer Winters is an Information Systems Technician in the U.S.

18 Navy. During her five-years serving in the military, Petty Officer Winters has received

19 specialized training and provided mission-related information technology and services to the

20 Office of Naval Intelligence, its subordinate commands, the Fleet, and Joint Forces commands.

21 Petty Officer Winters has performed her job duties in support of the Global War on Terrorism.

22

108. Petty Officer Winters provides a valuable service for the Navy intelligence

23 community that strengthens military readiness—providing information technology and services

24 that, in turn, allows other service members to do their jobs.

25

109. Growing up as the child of a veteran, the military’s core values and creeds have

26 been ingrained into every aspect of her life from a young age. The only career path that Petty

27 Officer Winters has ever envisioned for herself has been the military.

28
FIRST AMENDED COMPLAINT - 16 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 17 of 41

1

110. Petty Officer Winters is transgender. She was assigned the sex of male at birth,

2 but she has known since approximately 2001 that she is female.

3

111. After struggling for many years to receive family acceptance, Petty Officer

4 Winters began to come to terms with accepting and living openly in her gender identity

5 approximately one-and-a-half years ago. She then started to see a mental health professional who

6 diagnosed her with gender dysphoria.

7

112. When Petty Officer Winters found out, in June 2016, that the ban on open

8 transgender military service had been lifted, she was absolutely ecstatic. She had informed her

9 family that she was transgender immediately prior to the announcement because she realized that

10 she needed to finally live her true, authentic life. Petty Officer Winters hoped to do that while

11 continuing to proudly serve the country in the Navy.

12

113. Following the lift on the ban, Petty Officer Winters began living openly as a

13 woman. She disclosed her transgender status and expressed her gender identity openly in the

14 military in reliance on the open service ban having been lifted.

15

114. Petty Officer Winters has started taking medical steps to bring her body into

16 conformity with her female gender identity. In June 2016, Navy medical officers created an

17 individualized treatment plan for her gender transition. In consultation with her physician, Petty

18 Officer Winters began hormone therapy in July 2016.

19

115. Petty Officer Winters’s treatment plan also includes medically necessary surgical

20 treatment. Petty Officer Winters has made multiple attempts to make contact with relevant

21 military personnel to determine if her paperwork for approval of this treatment is still in process

22 or has been rejected. She has not received any response to her inquiries.

23

116. Petty Officer Winters has taken legal steps to transition. She has legally changed

24 my first and middle names to Megan Dawn. She has also changed her name on her driver’s

25 license and her social security card and records.

26

117. Petty Officer Winters has also changed her gender marker in DEERS. She has

27 worked with her chain of command throughout her transition. Since coming out, others have

28 mostly addressed Petty Officer Winters by female pronouns, which match her gender identity.

FIRST AMENDED COMPLAINT - 17 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 18 of 41

1

118. The fact that Petty Officer Winters is transgender has not prevented her from

2 doing her job in the military. She performs a valuable service for the Navy that strengthens

3 military readiness. Excluding Petty Officer Winters from the military on the basis of her

4 transgender status would weaken military readiness.

5

119. If permitted to do so, Petty Officer Winters would re-enlist in the military

6 following the expiration of her current term of service in March 2019. She intends to serve

7 honorably in the military until retirement.

8

120. Petty Officer Winters has engaged in speech and conduct disclosing her

9 transgender status and expressing her gender identity, including by coming out to her chain of

10 command and fellow service members, taking steps to transition, and living openly as a woman in

11 military life. She wants to continue to be able engage in speech and conduct disclosing her

12 transgender status and expressing her gender identity.

13 I. 14 15

Plaintiff Jane Doe 121. Plaintiff Jane Doe currently serves in the U.S. Military. 122. Jane Doe joined the military to serve her country and for the security and stability

16 that a military career provides. She takes pride in her role in protecting our country and helping

17 others save innocent lives.

18

123. Jane Doe is transgender, although she has not yet transitioned to living openly as a

19 woman. She was assigned the sex of male at birth, but she has known since she was 20 years old

20 that she is female. Jane Doe has long hoped to be able to transition to living openly as a woman,

21 but the prospect of doing so felt unattainable in the past, without a supportive environment in

22 which to transition.

23

124. On or around June 30, 2016, Jane Doe became aware that the ban on open military

24 service by transgender individuals had been lifted. She was very excited and nervous about the

25 possibility of serving openly as a woman. In October 2016, she began extensively reviewing the

26 materials the military was releasing to implement the lifting of the ban. In December 2016, she

27 attended her command-level training on the new policy. Around that time, she decided to come

28 out as transgender to select colleagues whom she felt she could trust. She also researched what

FIRST AMENDED COMPLAINT - 18 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 19 of 41

1 was required to formally change her gender marker in DEERS.

2

125. Jane Doe decided to begin her legal and medical transition once she was posted at

3 her next assigned location. She planned to time and structure her transition so that it was as

4 smooth as possible for her colleagues and herself. Jane Doe wanted to give her Commanding

5 Officer plenty of time to prepare her unit and for other service members at her next assigned

6 location to get to know her as a valuable individual member of the team. She also wanted to give

7 herself some time to come out. She transferred to this assigned location in July 2017.

8

126. On July 26, 2017, President Trump posted three tweets that said that transgender

9 people would not be able to serve in the military “in any capacity.” After Jane Doe saw the

10 President’s tweets, she decided to put her plans – to transition, come out as transgender, live

11 openly as a woman, and change her gender marker – on hold, fearing negative consequences.

12

127. Because of this change in policy, Jane Does has not come out to anyone in her

13 chain of command. She is open to a few select individuals with whom she serves, as well as a

14 group of veterans with whom she communicates about her gender identity for support.

15

128. As a result of the announced ban, Jane Doe has been forced to postpone the steps

16 required for her to transition and she questions whether she will be able to continue serving in the

17 military, a career that she loves and wants to continue.

18

129. Jane Doe is terrified that her career will be brought to an early end because of the

19 President’s decision to ban transgender individuals from military service. If she transitions, she

20 will lose her career and everything that comes with it. If she does not transition, then she gives up

21 the expression of herself on the most fundamental level and, instead, must continue living as

22 someone that she is not.

23 J. 24

Plaintiff Conner Callahan 130. Plaintiff Conner Callahan is a Public Safety Officer at Warren Wilson College in

25 Asheville, North Carolina.

26

131. Mr. Callahan has wanted to enlist in the military since age 13. He comes from a

27 family with a legacy of military service and considers it his personal calling to serve and protect

28 the people of the United States in this capacity.

FIRST AMENDED COMPLAINT - 19 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 20 of 41

1

132. Mr. Callahan would like to put his investigative and problem-solving skills to use

2 for the military. In 2014, with the help of a U.S. Air Force recruiter in Kent, Ohio, Mr. Callahan

3 identified the enlisted position he would like to pursue: Explosive Ordnance Disposal.

4

133. Mr. Callahan is transgender. He was assigned the sex of female at birth, but has

5 known since approximately early 2012 that he is male.

6

134. Mr. Callahan began living openly as male in 2014 and has done so consistently

7 since that time.

8

135. In consultation with health care professionals, Mr. Callahan has taken clinically

9 appropriate steps to transition, which were completed in 2015.

10

136. Mr. Callahan has taken legal steps to transition. He legally changed his first name

11 to Conner. He has also changed his legal gender to male by court order. Mr. Callahan changed his

12 name and gender marker to male on his driver’s license and on social security card and records.

13

137. Mr. Callahan is ready and able to pursue a military career. When he spoke with

14 military recruiters he was open about his transgender status and discussed with a recruiter what

15 position would be best for him after enlistment. Mr. Callahan also took practice Armed Services

16 Vocational Aptitude tests, scoring above the 90th percentile on both tests.

17

138. But for the Ban and the current accessions bar, Mr. Callahan would seek to join

18 the military, and he is ready and able to pursue a military career.

19

139. Mr. Callahan has engaged in speech and conduct disclosing his transgender status

20 and expressing his gender identity, including by coming out to military recruiters, taking steps to

21 transition, and living openly as male in his everyday life. He wants to be able to continue to

22 engage in speech and conduct disclosing his transgender status and expressing his gender

23 identity.

24 K. Plaintiff Human Rights Campaign

25

140. HRC is a private, non-profit membership organization with approximately

26 508,000 members throughout the United States, including transgender members serving in the

27 United States military and transgender members who wish to serve in the United States military.

28 The mission of HRC is to end discrimination against LGBTQ people and realize a world that

FIRST AMENDED COMPLAINT - 20 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 21 of 41

1 achieves fundamental fairness and equality for all, including ending discrimination against

2 LGBTQ people who wish to serve their country.

3

141. HRC sues on behalf of its members, including Mr. Karnoski, Staff Sergeant

4 Schmid, and other prospective and current transgender service members who are currently

5 adversely affected by the Ban and the current accessions bar.

6 L. 7

Plaintiff Gender Justice League 142. GJL is a civil and human rights membership organization that, as relevant here,

8 advocates on behalf of transgender individuals in Washington state. It seeks to create a

9 community for transgender people and to empower them to combat the structural oppression,

10 discrimination, and violence they face in their daily lives.

11

143. GJL sues on behalf of its members, including Mr. Karnoski, Staff Sergeant

12 Schmid, and other prospective and current transgender service members who are currently

13 adversely affected by the Ban and the current accessions bar.

14 M. Plaintiff American Military Partner Association

15

144. With more than 50,000 members and supporters across the country and around

16 the world, AMPA’s mission is to connect, support, honor, and serve the partners, spouses,

17 families, and allies of America’s LGBT service members and veterans.

18

145. AMPA’s members include transgender individuals currently serving in the

19 military, including for example, Chief Warrant Officer Muller, Staff Sergeant Schmid, Petty

20 Officer Stephens, and Petty Officer Megan Winters. AMPA’s members also include transgender

21 individuals who wish to access into the military, including for example Mr. Karnoski. AMPA sues

22 on behalf of its individual transgender members who are directly affected by the Ban and the

23 accessions bar.

24 N. Prior Military Ban Against Transgender Individuals

25

146. There has never been a federal statute excluding transgender people from military

26 service. Instead, the military previously had a policy of excluding transgender people from service

27 based on DoD and service-specific rules and regulations.

28
FIRST AMENDED COMPLAINT - 21 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 22 of 41

1

147. This earlier military policy was based on an inaccurate, historical, pathological

2 view that regarded transgender people as deviants. This view was discredited long ago following

3 psychological and medical advances in the understanding of gender identity and of transgender

4 people.

5

148. Despite this earlier policy of exclusion, transgender people have always served in

6 the military but, as noted by former Secretary of Defense Ash Carter (“Secretary Carter”),

7 “they often had to serve in silence alongside their fellow comrades in arms.”

8

149. Transgender people have played essential, mission-critical roles in the military,

9 even when they have not had the ability to serve openly. For example, a transgender woman

10 served on Navy SEAL Team 6 and earned a Purple Heart and a Bronze Star, among many other

11 ribbons and medals.

12

150. According to a 2014 study conducted by the Williams Institute at the University of

13 California, Los Angeles, there are an estimated 134,300 transgender people who are veterans or

14 are retired from guard or reserve service.

15

151. It is a statistical certainty that there have been transgender people who have

16 sacrificed their lives in the course of military service to the United States.

17 O. Rescission of Prior Military Ban Against Transgender Individuals

18

152. The military’s prior ban against transgender people was the subject of extensive

19 research and study, which concluded that it lacked any valid justification.

20

153. For example, in March 2014, the Transgender Military Service Commission (the

21 “Commission”) issued a report analyzing the military’s former ban. The Commission, which

22 was co-chaired by a former U.S. Surgeon General, was convened to determine whether the ban

23 was based on medically sound reasons. The Commission found that there was “no compelling

24 medical rationale” for banning military service by transgender people.

25

154. In May 2014, then-Secretary of Defense Chuck Hagel publicly stated that he was

26 receptive to reviewing and reassessing the rules that govern service by transgender people. He

27 explained that “[e]very qualified American who wants to serve our country should have an

28 opportunity if they fit the qualifications and can do it.”

FIRST AMENDED COMPLAINT - 22 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 23 of 41

1

155. In July 2015, Secretary Carter admitted that DoD’s regulations regarding

2 transgender service members “[were] outdated and [were] causing uncertainty that distracted

3 commanders from our core missions.” He also recognized the many transgender people who

4 were already serving in the military: “We have transgender soldiers, sailors, airmen and

5 Marine—real, patriotic Americans—who I know are being hurt by an outdated, confusing,

6 inconsistent approach that’s contrary to our value of service and individual merit.”

7

156. Accordingly, Secretary Carter announced the creation of a working group to study

8 for six months the policy and readiness implications of permitting transgender individuals to

9 serve openly. This working group was chaired by the Under Secretary of Defense for Personnel

10 and Readiness and comprised senior representatives from each of the military services, the Joint

11 Staff, and relevant components from Office of the Secretary of Defense.

12

157. In addition to creating a working group, Secretary Carter also directed that,

13 effective July 13, 2015, no service member could be involuntarily separated or denied

14 reenlistment or continuation of active or reserve service on the basis of their gender identity

15 without the approval of the Under Secretary of Defense for Personnel and Readiness.

16

158. On information and belief, separations of service members on the basis of their

17 gender identity fell sharply after July 2015, and there were very few, if any, service members who

18 were separated on that basis from July 2015 to June 2016. In effect, transgender people served

19 openly in the military from July 2015 to June 2016, as well as likely before that period, albeit

20 under the threat of separation.

21

159. In or around July 2015, Secretary Carter also directed the commencement of a

22 study to evaluate the implications of allowing transgender personnel to serve openly in the

23 military. DoD commissioned the RAND Corporation, a non-profit, non-partisan research

24 organization, to conduct the study. DoD asked RAND to (1) identify the health care needs of the

25 transgender population and the costs associated with providing transition-related care to

26 transgender service members, (2) assess the readiness implications of allowing transgender

27 service members to serve openly, and (3) review the experiences of foreign militaries that permit

28 transgender individuals to serve openly. The findings from the study, which reflected the

FIRST AMENDED COMPLAINT - 23 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 24 of 41

1 culmination of months of research and spanned 91 pages, were publicly released in May 2016.

2

160. As detailed further below, the RAND study demonstrated that the cost of

3 providing transition-related care is exceedingly small relative to DoD’s overall health care

4 expenditures, that there are no readiness implications that prevent transgender members from

5 serving openly, and that foreign militaries have successfully permitted open service without a

6 negative effect on effectiveness, readiness, or unit cohesion.

7

161. The leadership of the Armed Services—including the Joint Chiefs of Staff, the

8 Service Secretaries, and Secretary Carter—together with personnel, training, readiness, and

9 medical specialists from across DoD, studied the available data, including the findings and

10 analysis from RAND. They also received input from transgender service members, from outside

11 expert groups, and from medical professionals outside DoD. They looked carefully at what

12 lessons could be learned from outside the U.S. military, including from allied militaries that

13 permit transgender people to serve openly, as well as from the private sector.

14

162. As a result of this deliberative process and year-long study, on June 30, 2016,

15 Secretary Carter announced that the military was ending the ban on open service by transgender

16 people. The conclusion was supported by, among other things, the need to recruit and retain the

17 individuals most highly qualified to serve. Effective immediately, transgender service members

18 were permitted to serve openly and could no longer be discharged or otherwise separated from

19 the military solely for being transgender. DoD materials explained that “[t]his policy change was

20 crafted through a comprehensive and inclusive process that included the leadership of the Armed

21 Services, medical and personnel experts across the Department, transgender Service members,

22 outside medical experts, advocacy groups, and the RAND Corporation.”

23

163. In the accompanying directive-type memorandum regarding the policy change,

24 Secretary Carter explained that the policies and procedures permitting open service were

25 premised on the conclusion that “open service by transgender Service members . . . is consistent

26 with military readiness and with strength through diversity.”

27

164. The policy change was announced through a press conference held by Secretary

28 Carter as well as through a section of the DoD website titled “Department of Defense

FIRST AMENDED COMPLAINT - 24 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 25 of 41

1 Transgender Policy,” which was still active in the days following President Trump’s July 26,

2 2017 tweets. That website lists the highlights of the policy change, links to various DoD resources

3 related to the policy change, and includes a video that assures transgender individuals:

4 “Transgender Members Can Now Serve Openly.”

5

165. DoD planned a 12-month implementation process that would proceed in stages,

6 beginning with the needs of current service members and their commanders, followed by training

7 for the entire force, and concluding with the accession of transgender recruits.

8

166. On September 30, 2016, within 90 days after the lifting of the ban, DoD issued a

9 training handbook for commanders, transgender service members, and the force, titled

10 “Transgender Service in the U.S. Military: An Implementation Handbook.” The 71-page

11 handbook was designed to help transgender service members in their transition, help

12 commanders with their duties and responsibilities, and help all service members understand the

13 new policies allowing open service by transgender service members. The handbook illustrates

14 that open service has been workable and practicable.

15

167. Also within 90 days of the lifting of the prior ban, DoD issued medical guidance

16 for providing transition-related care to transgender service members, who were also able to begin

17 the process to officially change their gender marker in the military’s personnel management

18 systems.

19

168. Over the next nine months following the lifting of the prior ban (i.e., from October

20 2016 to June 2017), the services conducted training of the force based on detailed guidance and

21 training materials regarding the policy change.

22

169. Finally, it was envisioned that by July 1, 2017, the military would begin accessing

23 transgender people who meet all relevant standards—holding them to the same physical and

24 mental fitness standards as everyone else who wishes to serve in the military.

25

170. On or around June 30, 2017, Secretary Mattis deferred the accession of

26 transgender individuals until January 1, 2018. There was no change in the decision about whether

27 transgender individuals would be able to join the military but instead merely a change in when

28 they could begin to do so.
FIRST AMENDED COMPLAINT - 25 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 26 of 41

1

171. But for President Trump’s implementation of the Ban, the military would have

2 begun the accession of transgender individuals on January 1, 2018.

3 P. 4 5

Current Policy of Discrimination Against Transgender Individuals in Military Service
172. Through a series of three tweets on July 26, 2017, President Trump unilaterally

6 reversed the U.S. military’s policy of permitting open service by transgender individuals and

7 dismantled the years of work that led to the development and implementation of that policy.

8

173. At 8:55 a.m. Eastern time, President Trump tweeted: “After consultation with my

9 Generals and military experts, please be advised that the United States Government will not

10 accept or allow......”

11

174. At 9:04 a.m. Eastern time, President Trump tweeted: “....Transgender

12 individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive

13 and overwhelming.....”

14

175. At 9:08 a.m. Eastern time, President Trump tweeted: “....victory and cannot be

15 burdened with the tremendous medical costs and disruption that transgender [sic] in the military

16 would entail. Thank you[.]”

17

176. The “process” that led to the Ban—to the extent there was any meaningful

18 process at all—was the antithesis of the deliberative, comprehensive, and inclusive process that

19 led to the rescission of the prior ban.

20

177. President Trump failed to engage in any meaningful study, deliberation, or

21 consultation with key military officials, including Secretary Mattis, before making the decision to

22 exclude transgender individuals from the military. Indeed, President Trump tweeted about his

23 decision when Secretary Mattis was on vacation and reportedly provided Secretary Mattis with

24 only one day’s notice of the decision.

25

178. Before the President’s Twitter announcement, other top Pentagon officials were

26 similarly unaware of his decision to ban transgender individuals from the military. In fact, in the

27 nine minutes between the President’s tweet at 8:55 a.m. Eastern Time (which stated, “After

28 consultation with my Generals and military experts, please be advised that the United States

FIRST AMENDED COMPLAINT - 26 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 27 of 41

1 Government will not accept or allow......”) and his next tweet at 9:04 a.m. Eastern Time, there

2 were concerns that President Trump was declaring war on North Korea.

3

179. The Joint Chiefs of Staff, including Chairman General Joseph Dunford, were not

4 aware that President Trump planned to tweet about a renewed ban on transgender service

5 members. Military service chiefs from the U.S. Army, Marine Corps, Navy, Air Force, and, upon

6 information and belief, the U.S. Coast Guard were all blindsided by the President’s Twitter

7 announcement.

8

180. Indeed, on June 19, 2017, Chairman General Dunford stated: “Transgender

9 personnel are serving right now, and there is no ongoing review that would affect the ability of

10 those currently serving to continue serving, provided they can meet the physical and mental

11 qualifications of service, be worldwide deployable, and [meet] the same standards that every

12 other soldier, sailor, airmen, [and] marine meets.”

13

181. Before the President’s Twitter announcement, the Pentagon press office was also

14 unaware of the President’s decision to again ban transgender people from the military.

15 Immediately after the President’s tweets, a Pentagon spokesperson, Navy Captain Jeff Davis,

16 declined to answer media questions about them, instead telling media: “call the White House.”

17

182. On July 26, 2017, White House Press Secretary Sarah Huckabee Sanders also

18 could not answer a basic question about the proposed new ban: whether transgender individuals

19 currently serving in the military would be discharged. Instead, she responded that DoD and the

20 White House “[would] have to work together” to figure that out. She also could not say for

21 certain who would even take the lead on implementation but “imagine[d]” that it would be DoD.

22

183. Even White House lawyers and aides, who had advised President Trump against

23 banning transgender individuals from the military, were blindsided by the President’s tweets

24 announcing the intended ban. Indeed, one White House official admitted that President Trump

25 took to Twitter to announce the change because the President was frustrated that others wanted

26 to engage in further discussion and analysis of the issues involved. According to a White House

27 official, President Trump stated that the announcement “would stop the lawyers from arguing

28 with him anymore” and trying to dissuade him from reinstituting a ban on transgender military

FIRST AMENDED COMPLAINT - 27 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 28 of 41

1 service.

2

184. On information and belief, President Trump also never spoke to a single

3 transgender person regarding the potential impact of his proposed ban before deciding to

4 institute it.

5

185. Several congressional and White House sources reported that part of the

6 President’s motivation for the policy change was to shore up support for a spending bill that

7 would have funded his desired border wall with Mexico and other campaign promises. There was

8 concern that the spending bill would not pass the House of Representatives because some

9 Republican members wanted a ban on military funding for transition-related care, which

10 Republican leadership would not permit, and thus these members might cause the defeat of the

11 entire spending bill. Indeed, on July 13, 2017—almost two weeks before the tweets—the House

12 had previously rejected a proposed amendment that would have banned coverage for transition-

13 related care for transgender service members. These Republican members turned to President

14 Trump, who quickly went much further than banning coverage for transition-related care and

15 instead announced his intention to ban transgender members from military service altogether,

16 presumably as a last-ditch attempt to save the spending bill at issue.

17

186. A Trump administration official also suggested that the President’s policy change

18 was motivated by a desire to gain political advantage over Democrats, stating: “This forces

19 Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin, to take complete ownership of

20 this issue. How will the blue collar voters in these states respond when senators up for re-election

21 in 2018 like Debbie Stabenow are forced to make their opposition to this a key plank of the

22 campaigns?”

23

187. Additional reports indicate that the President’s policy change was undertaken at

24 the behest of Tony Perkins, president of the Family Research Council, a religious lobbying

25 organization that has been labeled an anti-LGBT hate group. That request reportedly was made

26 at a meeting held in the White House Oval Office on July 11, 2017, in which invited, conservative

27 religious leaders laid hands on President Trump and prayed.

28
FIRST AMENDED COMPLAINT - 28 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 29 of 41

1

188. Then-Deputy Assistant to President Trump Sebastian Gorka stated on July 28,

2 2017, that the military is “not there to reflect America” but instead “to kill people and blow stuff

3 up.” He derided the inclusion of transgender service members in the military as “Obama-era

4 social engineering.” He also cited reports that 40 percent of transgender people have attempted

5 suicide at some point in their lives as a justification for excluding them from military service—

6 failing to recognize or acknowledge the role that discrimination plays in that statistic—and

7 asserted that “we don’t need to try and force them into the hierarchical military environment

8 where they are under the utmost pressure to kill or be killed.” Mr. Gorka continued, “that is why

9 the President is doing this—out of warmth of his consideration for this population.” That

10 statement is false.

11

189. President Trump’s unilateral decision to bar transgender individuals from the

12 military has been met with widespread opposition and condemnation, including by elected

13 representatives from both main political parties. For example, Republican Senator John McCain,

14 Chair of the Senate Armed Services Committee, stated “We should all be guided by the principle

15 that any American who wants to serve our country and is able to meet the standards should have

16 the opportunity to do so—and should be treated as the patriots they are.” Similarly, Republican

17 Senator Richard Shelby stated, “You ought to treat everybody fairly and you ought to give

18 everybody a chance to serve.” Republican Senator Lindsey Graham added, “This is something

19 we should... not make a decision [about] based off a tweet.” Furthermore, more than 50 House

20 members, including those on the House Judiciary Committee and Armed Services Committee,

21 joined a letter stating that the President’s decision to ban transgender individuals from the

22 military was unconstitutional on its face.

23

190. Attorneys general from 19 states and the District of Columbia joined a letter

24 denouncing the President’s exclusion of transgender individuals from the military as “blatant

25 discrimination” that violates “fundamental constitutional and American values.” The states

26 include California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts,

27 Minnesota, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia

28 and Washington.
FIRST AMENDED COMPLAINT - 29 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 30 of 41

1

191. Fifty-six retired generals and admirals issued a public statement on August 1,

2 2017, warning that the proposed ban on transgender service members would downgrade military

3 readiness. The statement notes that two four-star generals and former chairmen of the Joint

4 Chiefs of Staff—Army General Martin Dempsey and Navy Admiral Michael Mullen—have

5 publicly supported open service by transgender individuals.

6 Q. Implementation of Discrimination Against Transgender Individuals in Military Service
7

8

192. On or around July 31, 2017, Navy Captain Jeff Davis stated that, upon receiving

9 any “formal direction” from the President, DoD officials “would provide implementing

10 guidance and implement accordingly.” He added that the military was ready “to make [it]

11 happen” once the formal direction was received.

12

193. On or around August 14, 2017, Secretary Mattis informed reporters: “I’ve got my

13 people over there in the room to give [the White House] any military background that they might

14 need to inform them.” But he added, “[t]hey write their own policy of course, so we’re in a

15 supporting role right now.”

16

194. On August 25, 2017, President Trump issued a memorandum entitled “Military

17 Service by Transgender Individuals” (the “Memorandum”) to the Secretary of Defense and the

18 Secretary of Homeland Security (“DHS”). The Memorandum institutes and implements the

19 Ban.

20

195. President Trump has admitted that, until June 2016, DoD and DHS “generally

21 prohibited openly transgender individuals from accession in the United States military and

22 authorized the discharge of such individuals.” President Trump’s avowed purpose in issuing the

23 Memorandum and the Ban is to “return” the United States to that “longstanding” policy and

24 practice of discrimination.

25

196. In light of both President Trump’s tweets, his Memorandum, and the Ban,

26 transgender service members are now no longer able to serve openly on the same terms as before

27 his tweets, his Memorandum, and the Ban, notwithstanding any purported effective dates set

28 forth in the Memorandum. Any present-day speech or conduct that “openly” discloses a

FIRST AMENDED COMPLAINT - 30 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 31 of 41

1 transgender individual’s gender identity or transgender status places them in violation of

2 President Trump’s Memorandum and the Ban, subjecting them to discharge and other “action . .

3 . against [them].”

4

197. President Trump’s Memorandum also mandates that the Secretary of Defense

5 and the Secretary of Homeland Security “maintain the currently effective policy regarding

6 accession of transgender individuals into military service beyond January 1, 2018.” As a result,

7 individuals known to be transgender are currently and now indefinitely barred from enlistment

8 and appointment in the military.

9

198. Lastly, President Trump’s Memorandum mandates that the Secretary of Defense

10 and the Secretary of Homeland Security “halt all use of DoD or Department of Homeland

11 Security resources to fund sex-reassignment [sic] surgical procedures for military personnel,

12 except to the extent necessary to protect the health of an individual who has already begun a

13 course of treatment to reassign his or her sex.” The Memorandum selectively targets the health

14 care needs of transgender service members for adverse treatment for no legitimate reason.

15

199. Transition-related health care, including surgical care, can be medically necessary

16 for an individual, regardless of whether that individual has already begun a course of treatment to

17 transition.

18

200. All Defendants—President Trump, the U.S., Secretary Mattis, and DoD—are

19 responsible for implementing and enforcing the Ban and the current accessions bar.

20 R. Purported Justifications for Policy of Discrimination Against Transgender Individuals
21

22

201. The Ban and the current accessions bar are not supported by any compelling,

23 important, or even rational government interest.

24

202. The Ban and the current accessions bar lack any narrowly-tailored, substantially-

25 related, or even rational relationship to any legitimate government interest, and they are not the

26 least restrictive means of achieving any valid government interest.

27

203. Neither of the purported justifications cited by President Trump for the

28 reinstatement of the prior ban in his tweets—medical costs and disruption—nor any of the after-

FIRST AMENDED COMPLAINT - 31 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 32 of 41

1 the-fact justifications drafted by others in defense of his tweets has any basis in reality. Indeed,

2 they are rebutted by, among other things, the fact that transgender individuals have already

3 served openly for more than a year without any of these concerns materializing.

4

1. Medical Costs

5

204. With respect to the issue of medical cost, DoD’s own commissioned study by

6 RAND estimated that providing transition-related care to active-duty service members would

7 cost between $2.4 million and $8.4 million annually—which is “an amount that will have little

8 impact on and represents exceedingly small proportion of [active component] health care

9 expenditures (approximately $6 billion in FY 2014) and overall DoD health care expenditures

10 ($49.3 billion actual expenditures [in FY 2014] . . .).”

11

205. The RAND study mirrored earlier research findings. A 2015 article published in

12 the New England Journal of Medicine estimated that the cost of providing transition-related care

13 to service members would be approximately $5.6 million annually or 22 cents per member per

14 month. The article concluded that any plausible estimate of the cost involved is equivalent to a

15 “rounding error” in the military’s nearly-$50 billion annual health care budget.

16

206. The surgeon general of the Navy also noted in December 2016 that most of the

17 medical care for transgender service members was already provided to others in relation to

18 similar medical needs.

19

207. Providing transition-related care also mitigates other costs that the military would

20 otherwise be required to bear. The RAND study noted that the adverse consequences of not

21 providing transition-related care to transgender personnel could include causing these individuals

22 to avoid other necessary health care altogether, such as important preventive services, as well as

23 increased rates of mental and substance abuse disorders, and suicide, and reduced productivity.

24

208. Implementing a ban against transgender individuals in the military will cost the

25 federal government many times more in taxpayer dollars than any cost associated with allowing

26 transgender individuals to continue serving and to join the military. Implementation costs include

27 the high expense of separating or dismissing people subject to the policy and the cost of finding

28 replacements for and training non-transgender individuals to replace them. A recent study

FIRST AMENDED COMPLAINT - 32 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 33 of 41

1 estimated that it would cost $960 million dollars to recruit and train the replacements for all the

2 transgender individuals who are currently serving in the military—more than one hundred times

3 the upper estimate of the cost of providing transition-related care for one year.

4

2. Military Readiness

5

209. There is also no military readiness justification for the policy of excluding

6 transgender individuals from the military.

7

210. The RAND study found that less than 0.0015 percent of total available labor-

8 years, defined as the amount of work done by an individual in a year, would be affected by

9 permitting transgender individuals to openly serve. This is because, even on the high end of

10 estimates, less than 0.1 percent of the total force would seek transition-related care that could

11 temporarily affect their ability to deploy.

12

211. Existing data also show that there is no impact on unit cohesion that would

13 prevent transgender individuals from serving openly.

14

212. The military has previously adapted to the eradication of other forms of

15 discrimination including racial desegregation, the end of the anti-lesbian, gay, and bisexual

16 “Don’t Ask, Don’t Tell” policy, and the integration of women into direct combat positions. The

17 military was able to adapt to the inclusion of transgender troops serving openly as well,

18 particularly with the benefit of force-wide training and clear guidance implemented by the

19 military.

20

213. Eighteen countries allow transgender people to serve openly in the military:

21 Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland,

22 France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, and the United

23 Kingdom. The RAND study focused on the policies of four countries with the most well-

24 developed and publicly available policies on transgender military service members—Australia,

25 Canada, Israel, and the United Kingdom. In no case did the study find any evidence of an adverse

26 effect on operational effectiveness, operational readiness, or cohesion of the force.

27

28
FIRST AMENDED COMPLAINT - 33 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 34 of 41

1

CAUSES OF ACTION

2

FIRST CAUSE OF ACTION

EQUAL PROTECTION VIOLATION

3

(By All Plaintiffs Against All Defendants)

4

214. Plaintiffs incorporate paragraphs 1 through 213 as though fully set forth herein.

5

215. All Plaintiffs state this cause of action against all Defendants (including President

6 Trump and Secretary Mattis, in exclusively their official capacities) for purposes of seeking

7 declaratory and injunctive relief, and challenge the Ban and the current accessions bar both

8 facially and as applied to them or, as to the organizational plaintiffs, as applied to their members.

9

216. The Fifth Amendment to the United States Constitution provides that no person

10 shall be deprived of life, liberty, or property without due process of law. The Due Process Clause

11 includes within it a prohibition against the denial of equal protection by the federal government,

12 its agencies, or its officials or employees.

13

217. Defendants’ disparate treatment of transgender individuals facially and

14 intentionally discriminates against transgender individuals based on sex-related considerations.

15

218. Discrimination based on sex-related considerations includes, but is not limited to,

16 discrimination based on gender nonconformity, gender identity, transgender status, and gender

17 transition.

18

219. The Department of Defense’s Transgender Service Member Policy

19 Implementation Fact Sheet, posted on the Department of Defense’s official website, admits that

20 “Any discrimination against a Service member based on their gender identity is sex

21 discrimination.”

22

220. Discrimination because an individual is transgender is both discrimination based

23 on a sex-related consideration, which at a minimum requires courts to apply intermediate

24 scrutiny in evaluating the constitutionality of the government’s discrimination, and

25 discrimination based on transgender status, which requires courts to apply strict scrutiny to such

26 discrimination.

27

221. Government discrimination against transgender individuals bears all the indicia of

28 a suspect classification requiring strict scrutiny by the courts.

FIRST AMENDED COMPLAINT - 34 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 35 of 41

1

a. Transgender people have suffered a long history of extreme discrimination

2

and continue to suffer such discrimination to this day.

3

b. Transgender people are a discrete and insular group and lack the political

4

power to protect their rights through the legislative process. Transgender

5

people have largely been unable to secure express federal, state, and local

6

protections specifically protecting them against discrimination, and have

7

been and continue to be regularly targeted by anti-transgender legislation,

8

regulations, bills, and other government action.

9

c. A person’s gender identity or transgender status bears no relation to that

10

person’s ability to contribute to society.

11

d. Transgender people constitute a small minority of the population. In

12

addition, gender identity is a core, defining trait and is so fundamental to

13

one’s identity and conscience that a person cannot be required to abandon

14

it as a condition of equal treatment. Gender identity is also generally fixed

15

at an early age and highly resistant to voluntary change. Efforts to change

16

gender identity have been condemned by leading medical and

17

psychological authorities as harmful, and have been barred by numerous

18

states, the District of Columbia, and numerous local governments.

19

222. Defendants’ disparate treatment of transgender individuals like the individual

20 plaintiffs and the transgender members of the organizational plaintiffs deprives them of their

21 right to equal dignity and stigmatizes them as second-class citizens in violation of equal

22 protection guarantees.

23

223. There is not even a legitimate justification for such disparate treatment, let alone

24 the important or compelling one that is constitutionally required.

25

224. The Ban and current accessions bar are motivated by impermissible animus

26 towards transgender people and are thus invalid as a whole.

27

28
FIRST AMENDED COMPLAINT - 35 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 36 of 41

1

SECOND CAUSE OF ACTION

2

DUE PROCESS VIOLATION (By All Plaintiffs Against All Defendants)

3

4

225. Plaintiffs incorporate paragraphs 1 through 213 as though fully set forth herein.

5

226. All Plaintiffs state this cause of action against all Defendants (including President

6 Trump and Secretary Mattis, in exclusively their official capacities) for purposes of seeking

7 declaratory and injunctive relief, and challenge the Ban and current accessions bar both facially

8 and as applied to them or, as to the organizational plaintiffs, as applied to their members.

9

227. Defendants’ conduct, including their enforcement of the Ban and current

10 accessions bar, violates the rights of the individual plaintiffs and of the transgender members of

11 the organizational plaintiffs under the Fifth Amendment’s Due Process Clause. The Due Process

12 Clause protects each person’s fundamental liberty to individual dignity, autonomy, and privacy.

13 That includes the right to define and express one’s own identity, to define one’s own concept of

14 existence, and to make intimate decisions concerning marriage, procreation, and family life, all

15 without undue government interference.

16

228. A person’s gender identity constitutes a core aspect of individual self-definition.

17 The Ban and current accessions bar diminish the personhood, dignity, and autonomy of the

18 individual plaintiffs and of the transgender members of the organizational plaintiffs, and

19 impermissibly interfere with the most intimate choices a person may make in a lifetime, including

20 the right to self-expression and to live openly and authentically.

21

229. Where the government impermissibly burdens a fundamental liberty interest, such

22 government action may be sustained only upon a showing that it is, at the very least, substantially

23 related to an important government interest, if not narrowly tailored to serve a compelling

24 government interest. Here, the Ban and the current accessions bar lack adequate tailoring and fail

25 to serve even a legitimate governmental interest. Indeed, they epitomize the very kind of arbitrary

26 and capricious government action that the Due Process Clause forbids.

27

230. Defendants have also violated the due process rights of the individual plaintiffs

28 and of the transgender members of the organizational plaintiffs to the extent that they

FIRST AMENDED COMPLAINT - 36 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 37 of 41

1 detrimentally relied on the military’s policy, extant during the period of June 2016 to August

2 2017, of permitting open service by transgender individuals. In addition, Defendants’ conduct

3 violates basic principles of equity.

4 THIRD CAUSE OF ACTION

5

FREE SPEECH VIOLATION

(By All Plaintiffs Against All Defendants) 6

7

231. Plaintiffs incorporate paragraphs 1 through 213 as though fully set forth herein.

8

232. All Plaintiffs state this cause of action against all Defendants (including President

9 Trump and Secretary Mattis, in exclusively their official capacities) for purposes of seeking

10 declaratory and injunctive relief, and challenge the Ban and current accessions bar both facially

11 and as applied to them or, as to the organizational plaintiffs, as applied to their members.

12

233. The Ban and current accessions bar violate the Free Speech Clause of the First

13 Amendment because they impermissibly burden and chill the exercise of the individual plaintiffs’

14 and of the organizational plaintiffs’ transgender members’ constitutionally protected speech,

15 expression, expressive conduct, and expressive association, based on the content and viewpoint

16 of their speech.

17

234. All the individual plaintiffs and transgender members of the organizational

18 plaintiffs have been open about their status as transgender either in the context of seeking to join

19 the military or in the course of their military service. All individual plaintiffs and transgender

20 members of organizational plaintiffs want to continue being open about their status as

21 transgender, and to continue expressing and conducting themselves consistently with their

22 gender.

23

235. The gender expression of the individual plaintiffs and of transgender members of

24 the organizational plaintiffs, the conduct of those individuals that is consistent with their gender,

25 and those individuals’ disclosure of their transgender status, all constitute protected First

26 Amendment activity. Similarly, the advocacy of those individuals for fairness for transgender

27 service members and an end to discrimination against transgender individuals in military service,

28 and those individuals’ association with other transgender people and their allies for expressive

FIRST AMENDED COMPLAINT - 37 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 38 of 41

1 purposes, constitute protected First Amendment activity.

2

236. The purpose and effect of the Ban and current accessions bar are to chill

3 constitutionally protected First Amendment activity. Indeed, the Memorandum on its face

4 demonstrates that it is directed at suppressing the gender expression and related expressive

5 conduct of transgender individuals, including that of the individual plaintiffs and transgender

6 members of the organizational plaintiffs , and those individuals’ disclosure of their transgender

7 status: specifically, the Memorandum states that policy is changing by returning to one that 8 prohibits “openly transgender individuals” from accession, authorizes the discharge of such 9 individuals, and prevents transgender individuals from serving “openly in the military”

10 (emphases added).

11

237. The Ban and current accessions bar penalize the individual plaintiffs, transgender

12 members of the organizational plaintiffs, other transgender service members, and other

13 transgender individuals who would like to join the military or be appointed as officers, for their

14 gender expression. The Ban and current accessions bar chill the protected First Amendment

15 activity of a person of ordinary firmness who is transgender by requiring such persons either to

16 attempt to deny who they are and suppress expression of their gender or be denied military

17 service on the same terms as others. The ban also chills these individuals’ right to advocate for

18 fair treatment for transgender service members for fear that this advocacy will identify them as

19 transgender. For the same reason, the exclusion chills exercise of their right to associate with

20 other transgender service members and their allies and form or participate in expressive

21 associations for the purpose of advocating for an end to the exclusion.

22

238. The individual plaintiffs and transgender members of the organizational plaintiffs

23 are harmed by being denied the opportunity to serve in the military on the same terms as other

24 service members. All of the individual plaintiffs and transgender members of the organizational

25 plaintiffs face a realistic danger of sustaining a direct injury as a result of implementation,

26 operation, or enforcement of the terms of the Ban as well as the current accessions bar. For

27 example, Mr. Karnoski, D.L., and Mr. Callahan are harmed by being denied the opportunity to

28 serve in the military. Staff Sergeant Schmid is being refused appointment as a warrant officer due

FIRST AMENDED COMPLAINT - 38 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 39 of 41

1 to the current accessions bar, and she also faces a realistic danger that she will sustain a direct

2 injury from implementation of the Ban, which requires a return to the exclusion of transgender

3 service members from the military. Chief Warrant Officer Muller, Petty Officer Lewis, Petty

4 Officer Stephens, Petty Officer Winters, and Jane Doe also face the realistic danger that they will

5 sustain direct injuries from implementation of the Ban.

6

PRAYER FOR RELIEF

7

WHEREFORE, Plaintiffs respectfully request that this Court:

8

1. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-02, declaring the Ban and the

9 current accessions bar unconstitutional on their face and as applied to the individual plaintiffs and

10 transgender members of the organizational plaintiffs for the reasons set forth above;

11

2. Preliminarily and permanently enjoin Defendants, their agents, employees,

12 representatives, successors, and any other person or entity subject to their control or acting

13 directly or indirectly in concert with them from enforcing the Ban or the current accessions bar,

14 including by enjoining any separation, discharge, adverse action, or denial of promotion,

15 reenlistment, continuation of service, accession, or appointment because an individual is

16 transgender.

17

3. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees pursuant to 28

18 U.S.C. § 2412 and any other applicable laws; and

19

4. Grant any injunctive or other relief that this Court deems just, equitable, and

20 proper.

21

22 Respectfully submitted September 14, 2017. 23

NEWMAN DU WORS LLP

24

_________________________

Samantha Everett, WSBA #47533

25

samantha@newmanlaw.com

Derek A. Newman, WSBA #26967

26

dn@newmanlaw.com

2101 Fourth Ave., Ste. 1500

27

Seattle, WA 98121

(206) 274-2800

28

FIRST AMENDED COMPLAINT - 39 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 40 of 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FIRST AMENDED COMPLAINT - 40 [2:17-CV-01297-MJP]

LAMDBA LEGAL DEFENSE AND EDUCATION FUND, INC. Tara Borelli, WSBA #36759 tborelli@lambdalegal.org Jon W. Davidson (admitted pro hac vice) Camilla B. Taylor (admitted pro hac vice) Peter C. Renn (admitted pro hac vice) Natalie Nardecchia (admitted pro hac vice) Sasha Buchert (admitted pro hac vice) Kara Ingelhart (admitted pro hac vice) Carl Charles (admitted pro hac vice) 730 Peachtree Street NE, Ste. 640 Atlanta, GA 30308 (404) 897-1880
OUTSERVE-SLDN, INC. Peter Perkowski (admitted pro hac vice)
KIRKLAND & ELLIS LLP James F. Hurst, P.C. (admitted pro hac vice) Jordan Heinz (admitted pro hac vice)
Attorneys for Plaintiffs

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 30 Filed 09/14/17 Page 41 of 41

1

&(57,),&$7(2)6(59,&(

2

The undersigned certifies under penalty of perjury under the laws of the United States of

3 America and the laws of the State of Washington that on September 14, 2017, I caused true and

4 correct copies of the foregoing documents to be served by the method(s) listed below on the

5 following interested parties:

6

%\+DQG'HOLYHU\

7 86$WWRUQH\¶V2IILFH

6WHZDUW6W6XLWH



8 6HDWWOH:$

9 %\5HJLVWHUHGRU&HUWLILHG0DLO
10 $WWRUQH\*HQHUDORIWKH8QLWHG6WDWHV
11 86'HSDUWPHQWRI-XVWLFH 3HQQV\OYDQLD$YHQXH1:
12 :DVKLQJWRQ'&

'HSDUWPHQWRI'HIHQVH 'HIHQVH3HQWDJRQ :DVKLQJWRQ'&

13

 6HFUHWDU\RI'HIHQVH-DPHV10DWWLV

14

'HIHQVH3HQWDJRQ :DVKLQJWRQ'&

15

3UHVLGHQW'RQDOG-7UXPS 3HQQV\OYDQLD$YH1: :DVKLQJWRQ'&

16

,KHUHE\FHUWLI\XQGHUWKHSHQDOW\RISHUMXU\WKDWWKHIRUHJRLQJLVWUXHDQGFRUUHFW

17 ([HFXWHGRQ6HSWHPEHUDW6HDWWOH:DVKLQJWRQ

18



19



20



BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB

5DFKHO+RUYLW]Paralegal

21

22

23

24

25

26

27

28
FIRST AMENDED COMPLAINT - 41 [2:17-CV-01297-MJP]

1(:0$1'8:256//3

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

 
 Case 2:17-cv-01297-MJP Document 98 Filed 11/20/17 Page 1 of 3

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11 RYAN KARNOSKI, et al.,

Case No. C17-01297MJP

12

Plaintiffs,

13 v.
14 15 DONALD J. TRUMP, et al.,

16

Defendants.

ORDER DENYING DEFENDANTS’ REQUEST FOR STAY OF PROCEEDINGS

17

This matter is before the Court on Defendants’ motion to stay proceedings. Dkt. #89.

18 Plaintiffs oppose Defendants’ Motion. Dkts. #91 and #93. For the reasons discussed herein,

19 Defendants’ motion is DENIED.
20

21

District Courts have discretionary power to stay proceedings in their own court. Lockyer

22 v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis v. North Am. Co., 299 U.S.

23 248, 254 (1936)). When a stay is proposed, district courts must weigh the competing interests
24 affected by the grant or refusal of a stay. Id. at 1110 (quoting CMAX, Inc. v. Hall, 300 F.2d 265,
25 268 (9th Cir. 1962)). The competing interests considered in this analysis include: (1) “the
26
27 possible damage which may result from the granting of a stay”; (2) “the hardship or inequity

28 which a party may suffer in being required to go forward”; and (3) “the orderly course of justice

ORDER - 1

Case 2:17-cv-01297-MJP Document 98 Filed 11/20/17 Page 2 of 3

1 measured in terms of the simplifying or complicating of issues, proof, and questions of law which

2 could be expected to result from a stay.” Id. Additionally, if there is “even a fair possibility”

3 that a stay will “work damage to someone else,” the party seeking the stay “must make out a
4 clear case of hardship or inequity in being required to go forward.” Landis, 299 U.S. at 255. 5
“Only in rare circumstances will a litigant in one cause be compelled to stand aside while a 6 7 litigant in another settles the rule of law that will define the rights of both.” Id.

8

Defendants fail to demonstrate a stay is warranted. Defendants contend that because the

9 Memorandum Opinion and Order issued in Doe 1, et al. v. Trump, et al., Case No. 17-1597
10 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017), preliminarily enjoins the government from
11 enforcing two sections of the Presidential memorandum at issue here, see 82 FR 41319, (the
12
13 “Presidential Memorandum”), the Court should stay the proceedings. Dkt. #89 at 2. Defendants

14 reason that while they disagree with the Doe 1 court’s preliminary injunction, and while they are

15 considering whether to appeal that court’s Order, they are nonetheless complying with the Order

16 and a stay is warranted. Id. The Court is not convinced.
17

18

Here, there is a fair possibility that granting Defendants’ stay will harm Plaintiffs. The

19 Order in Doe 1 did not enjoin Section 2(b) of the Presidential Memorandum; Section 2(b) directs

20 the Secretaries of Defense and Homeland Security to “halt” all use of their respective

21 departments’ resources to fund sex-reassignment surgical procedures, “except to the extent
22 necessary to protect the health of an individual who has already begun a course of treatment to
23
24 reassign his or her sex.” See 2017 WL 4873042, at *2. Because this directive has not been

25 enjoined, there is a fair possibility that at least some of the named Plaintiffs (including Plaintiff

26 Jane Doe) will be harmed if that directive goes into effect. Additionally, granting Defendants’
27 requested stay “deprive[s] Plaintiffs of an injunction supported by interests not present in Doe
28

ORDER - 2

Case 2:17-cv-01297-MJP Document 98 Filed 11/20/17 Page 3 of 3

1 [I].” Dkt. #91 at 5. This is especially true where the State of Washington asserts interests

2 different from private plaintiffs, and where Plaintiffs raise claims not considered by the District

3 Court for the District of Columbia. See id.

4

Because there is a fair possibility of harm to Plaintiffs, Defendants “must make out a clear

5 case of hardship or inequity in being required to go forward.” Landis, 299 U.S. at 255.
6

7 Defendants do not identify a single hardship or inequity they will face if litigation proceeds, see

8 Dkt. #89 at 2–5. Instead, Defendants merely contend the “orderly administration of justice will

9 be furthered,” if the Court grants its stay. Appeals to the orderly administration of justice, without
10 showing any hardship or inequity Defendants will face, fail to persuade the Court that a stay is
11 warranted. This is especially true where contested issues implicate the public interest; in these
12
13 circumstances, it is important for trial judges to develop the full record for review. Consequently,

14 Defendant’s request for a stay of proceedings (Dkt. #89) is DENIED.

15

16 DATED this 20th day of November, 2017.
17

18

19

20

21

A

22

Marsha J. Pechman

23

United States District Judge

24

25

26

27

28

ORDER - 3

 
 Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 1 of 23

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

RYAN KARNOSKI, et al.

CASE NO. C17-1297-MJP

11

Plaintiffs,

12

v.

13

DONALD J. TRUMP, et al.

14

Defendants.

15

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

16

INTRODUCTION

17

THIS MATTER comes before the Court on Plaintiffs Ryan Karnoski, et al.’s Motion

18 for Preliminary Injunction (Dkt. No. 32) and Defendants Donald J. Trump, et al.’s Motion to

19 Dismiss (Dkt. No. 69). Plaintiffs challenge the constitutionality of Defendant President Donald

20 J. Trump’s Presidential Memorandum excluding transgender individuals from the military.

21 Defendants respond that Plaintiffs lack standing, that their claims are neither properly plead nor

22 ripe for review, and that they are not entitled to injunctive relief. Having reviewed the Motions

23 (Dkt. Nos. 32, 69), the Responses (Dkt. Nos. 69, 84), the Replies (Dkt. Nos. 84, 90), and all

24 related papers, and having considered the arguments made in proceedings before the Court, the

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 1

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 2 of 23

1 Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss and GRANTS

2 Plaintiffs’ Motion for Preliminary Injunction.

3

ORDER SUMMARY

4

On July 26, 2017, President Donald J. Trump announced on Twitter that “the United

5 States Government will not accept or allow transgender individuals to serve in any capacity in

6 the U.S. Military.” A Presidential Memorandum followed, directing the Secretaries of Defense

7 and Homeland Security to “return” to the military’s policy authorizing the discharge of openly

8 transgender service members (the “Retention Directive”); to prohibit the accession (bringing into

9 service) of openly transgender individuals (the “Accession Directive”); and to prohibit the

10 funding of certain surgical procedures for transgender service members (the “Medical Care

11 Directive”). Plaintiffs filed this action challenging the constitutionality of the policy prohibiting

12 military service by openly transgender individuals. Plaintiffs contend the policy violates their

13 equal protection and due process rights and their rights under the First Amendment. Plaintiffs

14 include transgender individuals currently serving in the military and seeking to join the military;

15 the Human Rights Campaign, the Gender Justice League, and the American Military Partner

16 Association; and the State of Washington. Plaintiffs have moved for a preliminary injunction to

17 prevent implementation of the policy set forth in the Presidential Memorandum, and Defendants

18 have moved to dismiss.

19

The Court finds that Plaintiffs have standing to bring this action, and that their claims for

20 violation of equal protection, substantive due process, and the First Amendment are properly

21 plead and ripe for resolution. The Court finds that Plaintiffs’ claim for violation of procedural

22 due process is defective. The Court finds that the policy prohibiting openly transgender

23 individuals from serving in the military is likely unconstitutional. Accordingly, the Court

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 2

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 3 of 23

1 GRANTS in part and DENIES in part Defendants’ Motion to Dismiss and GRANTS Plaintiffs’

2 Motion for Preliminary Injunction.

3

BACKGROUND

4

I. Presidential Memorandum and Interim Guidance

5

On July 26, 2017, President Donald J. Trump announced on Twitter that the United

6 States government will no longer allow transgender individuals to serve in any capacity in the

7 military. (Dkt. No. 34, Ex. 6.) President Trump’s announcement read as follows:

8

9

10

11

12

13

14

15

16

Thereafter, President Trump issued a memorandum (the “Presidential Memorandum”)

17 directing the Secretaries of Defense and Homeland Security to “return” to the military’s policy

18 authorizing the discharge of openly transgender service members (the “Retention Directive”);

19 to prohibit the accession (bringing into service) of openly transgender individuals (the

20 “Accession Directive”); and to prohibit the funding of certain surgical procedures for

21 transgender service members (the “Medical Care Directive”). (Id. at §§ 1-3.) The Accession

22 Directive takes effect on January 1, 2018; the Retention and Medical Care Directives take

23 effect on March 23, 2018. (Id. at § 3.)

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 3

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 4 of 23

1

On September 14, 2017, Secretary of Defense James N. Mattis issued a memorandum

2 providing interim guidance to the military (the “Interim Guidance”). (Dkt. No. 69, Ex. 1.) The

3 Interim Guidance identified the intent of the Department of Defense (“DoD”) to “carry out the

4 President’s policy and directives” and to identify “a plan to implement the policy and directives

5 in the Presidential Memorandum.” (Id. at 2.) The Interim Guidance explained that transgender

6 individuals would be prohibited from accession effective immediately. (Id. at 3.)

7

II. Policy on Transgender Service Members Prior to July 26, 2017

8

Prior to President Trump’s announcement, the military concluded that transgender

9 individuals should be permitted to serve openly and was in the process of implementing a policy

10 to this effect (the “June 2016 Policy”). (Dkt. Nos. 32 at 9-10; 46 at ¶¶ 8-27; 48 at ¶¶ 8-36, Ex.

11 C.) The June 2016 Policy was preceded by extensive research, including an independent study

12 to evaluate the implications of military service by transgender individuals. (Dkt. Nos. 30 at

13 ¶¶ 159-162; 32 at 9-10; 46 at ¶ 11.) This study concluded that allowing transgender individuals

14 to serve would not negatively impact military effectiveness, readiness, or unit cohesion, and that

15 the costs of providing transgender service members with transition-related healthcare would be

16 “exceedingly small” compared with DoD’s overall healthcare expenditures. (Dkt. No. 32 at 30;

17 46 at ¶¶ 15-20.) After consulting with medical experts, personnel experts, readiness experts,

18 commanders whose units included transgender service members, and others, the working group

19 concluded that transgender individuals should be allowed to serve openly. (Dkt. Nos. 30 at

20 ¶ 161; 46 at ¶ 10.) The Secretary of Defense issued a directive-type memorandum on June 30,

21 2016 affirming that “service in the United States military should be open to all who can meet the

22 rigorous standards for military service and readiness,” including transgender individuals. (Dkt.

23 No. 48, Ex. C.) The memorandum established procedures for accession, retention, in-service

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 4

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 5 of 23

1 transition, and medical coverage, and provided that “[e]ffective immediately, no otherwise

2 qualified Service member may be involuntarily separated, discharged or denied reenlistment or

3 continuation of service, solely on the basis of their gender identity.” (Id.) Relying upon the June

4 2016 Policy, transgender service members disclosed their transgender status to the military and

5 were serving openly at the time of President Trump’s announcement. (See Dkt. Nos. 30 at ¶¶

6 101-102, 112-114; 48 at ¶ 37.)

7

III. Plaintiffs Challenge to the Presidential Memorandum

8

Plaintiffs challenge the constitutionality of the policy prohibiting military service by

9 openly transgender individuals and seek declaratory and injunctive relief.1 (Dkt. No. 30 at 39.)

10 Plaintiffs contend the policy violates their equal protection and due process rights, and their

11 rights under the First Amendment. (Id. at ¶¶ 214-238.)

12

Plaintiffs include nine individuals (the “Individual Plaintiffs”), three organizations (the

13 “Organizational Plaintiffs”), and Washington State. (See id. at ¶¶ 7-18; Dkt. No. 101.)

14 Plaintiffs Ryan Karnoski, D.L., and Connor Callahan seek to pursue a military career, and

15 contend that the policy set forth in the Presidential Memorandum forecloses this opportunity.

16 (Dkt. No. 30 at ¶¶ 38-49, 64-73, 130-139.) Plaintiffs Staff Sergeant Cathrine Schmid, Chief

17 Warrant Officer Lindsey Muller, Petty Officer First Class Terece Lewis, Petty Officer Second

18 Class Phillip Stephens, and Petty Officer Second Class Megan Winters currently serve openly

19 in the military. (Id. at ¶¶ 50-63, 74-120.) Plaintiff Jane Doe currently serves in the military, but

20

21

1 Plaintiffs’ suit is one of four lawsuits filed in response to President Trump’s policy prohibiting transgender individuals from serving openly. See Doe 1 v. Trump, No. 17-1597 (CKK) (D.D.C.

22

filed Aug. 9, 2017); Stone v. Trump, No. MJG-17-2459 (D. Md. filed Aug. 8, 2017); Stockman v. Trump, No. 17-cv-1799-JGB-KK (C.D. Cal. filed Sept. 5, 2017). The District Courts for the

23

Districts of Columbia and Maryland have issued preliminary injunctions suspending enforcement of the policy. See Doe 1, 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Stone, 2017 WL 5589122

24 (D. Md. Nov. 21, 2017).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 5

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 6 of 23

1 does not serve openly. (Id. at ¶¶ 121-129.) The Human Rights Campaign (“HRC”), the Gender

2 Justice League (“GJL”), and the American Military Partner Association (“AMPA”) join as

3 Organizational Plaintiffs. (Id. at ¶¶ 140-145.) After the Individual and Organization Plaintiffs

4 filed this action, Washington State moved to intervene to protect its sovereign and quasi-

5 sovereign interests, which it alleged were harmed by the policy set forth in the Presidential

6 Memorandum. (Dkt. No. 55; see also Dkt. No. 97.) On November 27, 2017, the Court granted

7 Washington State’s motion. (Dkt. No. 101.) Washington State now joins in Plaintiffs’ Motion

8 for Preliminary Injunction based upon its interests in protecting “the health, and physical and

9 economic well-being of its residents” and “securing residents from the harmful effects of

10 discrimination.” (Id. at 4.) Defendants include President Donald J. Trump, Secretary James N.

11 Mattis, the United States, and the DoD. (Dkt. No. 30 at ¶¶ 19-22.)

12

DISCUSSION

13

I. Motion to Dismiss

14

Defendants move to dismiss Plaintiffs’ Amended Complaint under Federal Rules of Civil

15 Procedure 12(b)(1) and 12(b)(6). (See Dkt. No. 69 at 16-22.) The Court finds that Plaintiffs

16 have standing to challenge the Presidential Memorandum and have stated valid claims upon

17 which relief may be granted. However, Plaintiffs have failed to state a valid claim for violation

18 of procedural due process. The Court therefore DENIES Defendants’ Motion to Dismiss as to

19 Plaintiffs’ equal protection, substantive due process, and First Amendment claims; and GRANTS

20 Defendants’ Motion to Dismiss as to Plaintiffs’ procedural due process claim.

21

A. Rule 12(b)(1)

22

Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of

23 Civil Procedure 12(b)(1). Defendants contend the Court lacks subject matter jurisdiction for two

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 6

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 7 of 23

1 reasons: First, they contend Plaintiffs lack standing because they have not suffered injuries in

2 fact. (Id. at 18-20.) Second, they contend Plaintiffs’ claims are not ripe for resolution. (Id. at

3 20-22.) Plaintiffs respond that the Presidential Memorandum gives rise to current harm and

4 credible threats of impending harm sufficient for both standing and ripeness. (See Dkt. No. 84 at

5 11-27.)

6

i. Individual Plaintiffs

7

The Court finds that the Individual Plaintiffs have standing to challenge the Presidential

8 Memorandum. To establish standing, Individual Plaintiffs must demonstrate: (1) an “injury in

9 fact”; (2) a causal connection between the injury and the conduct complained of; and (3) that it

10 is likely their injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife,

11 504 U.S. 555, 560-61 (1992). “At the preliminary injunction stage, a plaintiff must make a

12 ‘clear showing’ of his injury in fact.” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010)

13 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). An “injury in fact”

14 exists where there is an invasion of a legally protected interest that is both “concrete and

15 particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at

16 560 (internal quotation marks and citations omitted).

17

Each of the Individual Plaintiffs satisfies these requirements: As a result of the

18 Retention Directive, Plaintiffs Schmid, Muller, Lewis, Stephens, Winters, and Doe face a

19 credible threat of discharge. (See Dkt. No. 84 at 14-15.) As a result of the Accession

20 Directive, Plaintiff Schmid has been refused consideration for appointment as a warrant officer

21 and faces a credible threat of being denied opportunities for career advancement. (See Dkt.

22 Nos. 36 at ¶¶ 28-30; 70 at ¶ 3.) Plaintiffs Karnoski, D.L., and Callahan also face a credible

23 threat of being denied opportunities to compete for accession on equal footing with non-

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 7

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 8 of 23

1 transgender individuals. (See Dkt. Nos. 35 at ¶¶ 16-22; 37 at ¶¶ 3-16; 42 at ¶¶ 3-5, 10-21; see

2 also Doe 1, 2017 WL 4873042, at *18-19 (finding the Accession and Retention Directives

3 impose competitive barriers on transgender individuals who intend to accede). As a result of

4 the Medical Care Directive, Plaintiff Stephens faces a credible threat of being denied surgical

5 treatment, as he is currently ineligible for surgery until after March 23, 2018, the date upon

6 which DoD is to cease funding of transition-related surgical procedures.2 (Dkt. Nos. 30 at ¶

7 102; 34, Ex. 7 at § 3; 40 at ¶ 14.)

8

In addition to these threatened harms, the Individual Plaintiffs face current harms in the

9 form of stigmatization and impairment of free expression. The policy set forth in the Presidential

10 Memorandum currently denies Individual Plaintiffs the opportunity to serve in the military on

11 the same terms as other service members, deprives them of dignity, and subjects them to

12 stigmatization. (Dkt. No. 30 at ¶¶ 217, 222, 238.) Policies that “stigmatiz[e] members of the

13 disfavored group as ‘innately inferior’ . . . can cause serious non-economic injuries to those

14 persons who are personally denied equal treatment solely because of their membership in a

15 disfavored group.” Heckler v. Mathews, 465 U.S. 728, 737-740 (1984). The Presidential

16 Memorandum currently impairs Plaintiff Jane Doe’s rights to express her authentic gender

17 identity, as she fears discharge from the military as a result. (Dkt. No. 33 at ¶¶ 3-15.) Plaintiff

18 Doe’s self-censorship is a “constitutionally sufficient injury,” as it is based on her “actual and

19 well-founded fear” that the Retention Directive will take effect. See Cal. Pro-Life Council, Inc.

20 v. Getman, 328 F.3d 1088, 1093 (9th Cir. 2003) (“an actual and well-founded fear that [a] law

21

22 2 While the Medical Care Directive includes an exception where necessary “to protect the health

23

of an individual who has already begun a course of treatment to reassign his or her sex” (Dkt. No. 34, Ex. 7 at § 2), the exception does not apply to Plaintiff Stephens and does not diminish

24 the threat of harm he faces. (Dkt. No. 40 at ¶ 14.)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 8

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 9 of 23

1 will be enforced against [him or her]” may create standing to bring pre-enforcement claims based

2 on the First Amendment) (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393

3 (1988)).

4

Each of Defendants’ arguments to the contrary is unavailing. First, Defendants claim the

5 harms facing Plaintiffs are not certain, as the Presidential Memorandum directs “further study

6 before the military changes its longstanding policies regarding service by transgender

7 individuals.” (See Dkt. No. 69 at 18.) However, the Accession Directive is already in place, and

8 the restrictions set forth in the Medical Care Directive are final and will be implemented on

9 March 23, 2018. (See Dkt. No. 34, Ex. 7 at § 3.) The Court finds that “[t]he directives of the

10 Presidential Memorandum, to the extent they are definitive, are the operative policy toward

11 military service by transgender service members.” Doe 1, 2017 WL 4873042, at *17. Similarly,

12 the Court reads the Interim Guidance “as implementing the directives of the Presidential

13 Memorandum,” and concludes that “any protections afforded by the Interim Guidance are

14 necessarily limited to the extent they conflict with the express directives of the memorandum.”

15 Id.

16

Second, Defendants claim Plaintiffs Karnoski, D.L., and Callahan have not suffered

17 injury in fact as they have yet to enlist in the military. (Dkt. No. 69 at 19.) However, as a result

18 of the Accession Directive, Plaintiffs Karnoski, D.L., and Callahan cannot compete for accession

19 on equal footing with non-transgender individuals. Denial of this opportunity constitutes injury

20 in fact. See Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 365-66 (1977)

21 (“When a person's desire for a job is not translated into a formal application solely because of his

22

23

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 9

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 10 of 23

1 unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who

2 goes through the motions of submitting an application.”).3

3

Third, Defendants rely on Allen v. Wright, 468 U.S. 737 (1984) to claim that Plaintiffs

4 have not suffered stigmatic injury. (Dkt. No. 69 at 18.) But unlike the claimants in Allen, who

5 raised abstract instances of stigmatic injury only, the Individual Plaintiffs have identified

6 concrete interests in accession, career advancement, and medical treatment, and have

7 demonstrated that they are “‘personally denied equal treatment’ by the challenged discriminatory

8 conduct.” Allen, 468 U.S. at 755 (quoting Heckler, 465 U.S. at 739-40). Such stigmatic injury

9 is “one of the most serious consequences of discriminatory government action and is sufficient in

10 some circumstances to support standing.” Id.4

11

ii. Organizational Plaintiffs

12

The Court finds that Organizational Plaintiffs HRC, GJL, and AMPA have standing to

13 challenge the Presidential Memorandum. An organization has standing where “(a) its members

14 would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are

15 germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested

16 requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple

17 Adver. Comm’n, 432 U.S. 333, 343 (1977). Each of the Organizational Plaintiffs satisfies these

18 requirements. Individual Plaintiffs Karnoski and Schmid are members of HRC, GJL, and

19
3 Defendants’ claim that Plaintiffs Karnoski and D.L. would not be able to accede under the June 20 2016 Policy because they have recently taken steps to transition does not compel a different
finding. Plaintiffs’ injury “lies in the denial of an equal opportunity to compete, not the denial of 21 the job itself,” and thus the Court does not “inquire into the plaintiffs’ qualifications (or lack
thereof) when assessing standing.” Shea v. Kerry, 796 F.3d 42, 50 (D.C. Cir. 2015) (citing 22 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81 & n.14 (1978) (emphasis in original)).

23

4 Allen addressed racial discrimination specifically. However, the Supreme Court has also acknowledged stigmatic injury arising from gender-based discrimination. See Heckler, 465 U.S.

24 at 737-40.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 10

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 11 of 23

1 AMPA, and Individual Plaintiffs Muller, Stephens, and Winters are also members of AMPA.

2 (See Dkt. No. 30 at ¶¶ 141-145.) The interests each Organizational Plaintiff seeks to protect are

3 germane to their organizational purposes, which include ending discrimination against LGBTQ

4 individuals (HRC and GJL) and supporting families and allies of LGBT service members and

5 veterans (AMPA). (Id. at ¶¶ 16-18.) As Plaintiffs seek injunctive and declaratory relief,

6 participation by the organizations’ individual members is not required. See Associated Gen.

7 Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1408 (9th Cir. 1991)

8 (participation of individual members not required where “the claims proffered and relief

9 requested [by an organization] do not demand individualized proof on the part of its members”).

10

iii. Washington State

11

The Court finds that Washington State has standing to challenge the Presidential

12 Memorandum. A state has standing to sue the federal government to vindicate its sovereign and

13 quasi-sovereign interests. See Massachusetts v. E.P.A., 549 U.S. 497, 518-520 (2007).

14 Sovereign interests include a state’s interest in protecting the natural resources within its

15 boundaries. Id. at 518-519. Quasi-sovereign interests include a state’s interest in the health and

16 physical and economic well-being of its residents, and in “securing residents from the harmful

17 effects of discrimination.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S.

18 592, 607, 609 (1982). Washington State is home to approximately 45,000 active duty service

19 members and approximately 32,850 transgender adults. (Dkt. No. 97 at 6.) The Washington

20 National Guard is comprised of service members who assist with emergency preparedness and

21 disaster recovery planning, including protecting Washington State’s natural resources from

22 wildfires, landslides, flooding, and earthquakes. (Id. at 8.) Washington State contends that

23 prohibiting transgender individuals from serving openly adversely impacts its ability to recruit

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 11

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 12 of 23

1 and retain members of the Washington National Guard, and thereby impairs its ability to protect

2 its territory and natural resources. (Id.) Additionally, Washington State contends that the

3 prohibition implicates its interest in maintaining and enforcing its anti-discrimination laws,

4 protecting its residents from discrimination, and ensuring that employment and advancement

5 opportunities are not unlawfully restricted based on transgender status. (Id. at 8-9.) The Court

6 agrees.

7

The injuries to the Individual Plaintiffs, the Organizational Plaintiffs, and to Washington

8 State are indisputably traceable to the policy set forth in the Presidential Memorandum, and may

9 be redressed by a favorable ruling from this Court. Therefore, the Court DENIES Defendants’

10 Motion to Dismiss for lack of standing.

11

iv. Ripeness

12

The Court finds that Plaintiffs’ claims are ripe for review. Ripeness “ensure[s] that

13 courts adjudicate live cases or controversies” and do not “issue advisory opinions [or] declare

14 rights in hypothetical cases.” Bishop Paiute Tribe v. Inyo Cnty., 863 F.3d 1144, 1153 (9th Cir.

15 2017) (citation omitted). “A proper ripeness inquiry contains a constitutional and a prudential

16 component.” Id. (citation omitted). Because Plaintiffs have standing to challenge the

17 Presidential Memorandum, their claims satisfy the requirement for constitutional ripeness. See

18 id. (constitutional ripeness “is often treated under the rubric of standing”). Because they raise

19 purely legal issues (i.e., whether the Presidential Memorandum violates their constitutional

20 rights), and because withholding consideration of these issues will subject Plaintiffs to hardships

21 (i.e., denial of career opportunities and transition-related medical care, stigmatic injury, and

22 impairment of self-expression), they also satisfy the requirement for prudential ripeness. See id.

23 at 1154 (prudential ripeness is “guided by two overarching considerations: the fitness of the

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 12

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 13 of 23

1 issues for judicial decision and the hardship to the parties of withholding court consideration.”)

2 (citation and internal quotation marks omitted).

3

Defendants claim this case is not ripe for resolution because the policy on military service

4 by transgender individuals is “still being studied, developed, and implemented.” (Dkt. No. 69 at

5 20.) However, President Trump’s announcement on Twitter and his Presidential Memorandum

6 did not order a study, but instead unilaterally proclaimed a prohibition on transgender service

7 members. See Stone, 2017 WL 5589122, at *10 (“The Court cannot interpret the plain text of

8 the President’s Memorandum as being a request for a study to determine whether or not the

9 directives should be implemented. Rather, it orders the directives to be implemented by

10 specified dates.”). Defendants’ contention that Plaintiffs must first exhaust administrative

11 remedies before the Court can consider their claims is also unavailing, as the Ninth Circuit has

12 explained that “[r]esolving a claim founded solely upon a constitutional right is singularly suited

13 to a judicial forum and clearly inappropriate to an administrative board.” Downen v. Warner,

14 481 F.2d 642, 643 (9th Cir. 1973).

15

Therefore, the Court DENIES Defendants’ Motion to Dismiss for lack of subject matter

16 jurisdiction.

17

B. Rule 12(b)(6)

18

To survive a motion to dismiss for failure to state a claim upon which relief can be

19 granted, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

20 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

21 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This requirement is met where the

22 complaint “pleads factual content that allows the court to draw the reasonable inference that the

23 defendant is liable for the misconduct alleged.” Id. The complaint need not include detailed

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 13

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 14 of 23

1 allegations, but it must have “more than labels and conclusions, and a formulaic recitation of the

2 elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In evaluating a motion

3 under Rule 12(b)(6), the Court accepts all facts alleged in the complaint as true, and makes all

4 inferences in the light most favorable to the non-movant. Barker v. Riverside Cnty. Office of

5 Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted).

6

The Court finds that Plaintiffs’ Amended Complaint states valid claims for violation of

7 equal protection, substantive due process, and the First Amendment. Plaintiffs have established

8 a likelihood of success on the merits with regard to each of these claims (see discussion of

9 Plaintiffs’ Motion for Preliminary Injunction, infra), and for the same reasons, these claims

10 survive under Rule 12(b)(6). However, the Court finds that Plaintiffs’ Amended Complaint fails

11 to state a valid claim for violation of procedural due process. Plaintiffs’ Amended Complaint

12 alleges neither a “protectible liberty or property interest” nor a “denial of adequate procedural

13 protections” as required for a procedural due process claim. (See Dkt. No. 30 at ¶¶ 225-230;

14 Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, 1103 (9th Cir. 2012).) 5

15

Therefore, the Court DENIES Defendants’ Motion to Dismiss with respect to Plaintiffs’

16 equal protection, substantive due process and First Amendment claims, and GRANTS

17 Defendants’ Motion to Dismiss with respect to Plaintiffs’ procedural due process claim.

18

II. Motion for Preliminary Injunction

19

The Court finds that Plaintiffs are entitled to a preliminary injunction to preserve the

20 status quo that existed prior to the change in policy announced by President Trump on Twitter

21 and in his Presidential Memorandum. The Court considers four factors in evaluating Plaintiffs’

22

23 5 The Court notes that the procedural due process claim is elaborated upon in detail in Plaintiffs’ 24 Motion for Preliminary Injunction and Reply. (See Dkt. Nos. 32 at 22-23; 84 at 39-40.)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 14

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 15 of 23

1 request for a preliminary injunction: (1) the likelihood of success on the merits; (2) the likelihood

2 of irreparable harm in the absence of an injunction; (3) the balance of equities; and (4) the public

3 interest. Winter, 555 U.S. at 20. “When the government is a party, these last two factors

4 merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v.

5 Holder, 556 U.S. 418, 435 (2009)).

6

A. Likelihood of Success on the Merits

7

The Court finds that Plaintiffs have established a likelihood of success on the merits of

8 their equal protection, substantive due process, and First Amendment claims.

9

i. Equal Protection

10

Plaintiffs have established a likelihood of success on the merits of their equal protection

11 challenge. The Equal Protection Clause prohibits government action “denying to any person

12 the equal protection of the laws.” United States v. Windsor, 133 S. Ct. 2675, 2695 (2013).

13 Plaintiffs contend the policy set forth in the Presidential Memorandum denies them equal

14 protection in that it impermissibly classifies individuals based on transgender status and gender

15 identity and is not substantially related to an important government interest. (Dkt. No. 30 at

16 ¶¶ 217-224.)

17

The Court must first determine whether the policy burdens “a ‘suspect’ or ‘quasi-

18 suspect’ class.” See Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001). The Court

19 concludes that the policy distinguishes on the basis of transgender status, a quasi-suspect

20 classification, and is therefore subject to intermediate scrutiny. See id. (noting that gender is a

21 quasi-suspect classification); Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000)

22 (noting that discrimination based on a person’s failure “to conform to socially-constructed

23

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 15

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 16 of 23

1 gender expectations” is a form of gender discrimination) (citing Price Waterhouse v. Hopkins, 2 490 U.S. 228, 240 (1989)).6

3

Next, the Court must determine whether the policy satisfies intermediate scrutiny. Id.

4 A policy subject to intermediate scrutiny must be supported by an “exceedingly persuasive

5 justification.” United States v. Virginia, 518 U.S. 515, 531 (1996). The policy must serve

6 important governmental objectives, and the government must show “that the discriminatory

7 means employed are substantially related to the achievement of those objectives.” Id. at 533

8 (citation omitted). While Defendants identify important governmental interests including

9 military effectiveness, unit cohesion, and preservation of military resources, they fail to show

10 that the policy prohibiting transgender individuals from serving openly is related to the

11 achievement of those interests. (See Dkt. No. 69 at 33-35.) Indeed, “all of the reasons

12 proffered by the President for excluding transgender individuals from the military [are] not

13 merely unsupported, but [are] actually contradicted by the studies, conclusions, and judgment

14 of the military itself.” Doe 1, 2017 WL 4873042, at *30 (emphasis in original). Not only did

15 the DoD previously conclude that allowing transgender individuals to serve openly would not

16 impact military effectiveness and readiness, the working group tasked to evaluate the issue also

17 concluded that prohibiting open service would have negative impacts including loss of

18 qualified personnel, erosion of unit cohesion, and erosion of trust in command. (See Dkt. Nos.

19 46 at ¶¶ 25-26; 48 at ¶¶ 45-47.)

20

Defendants’ arguments to the contrary are unavailing. While Defendants raise concerns

21 about transition-related medical conditions and costs, their concerns “appear to be hypothetical

22
23 6 The June 2016 Policy also stated it was DoD’s position “consistent with the U.S. Attorney General’s opinion, that discrimination based on gender identity is a form of sex
24 discrimination.” (See Dkt. No. 48, Ex. C at 6.)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 16

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 17 of 23

1 and extremely overbroad.” Doe 1, 2017 WL 4873042, at *29. For instance, Defendants claim

2 that “at least some transgender individuals suffer from medical conditions that could impede

3 the performance of their duties,” including gender dysphoria, and complications from hormone

4 therapy and sex reassignment surgery. (See Dkt. No. 69 at 33-34.) But all service members

5 might suffer from medical conditions that could impede performance, and indeed the working

6 group found that it is common for service members to be non-deployable for periods of time

7 due to an array of such conditions. (Dkt. No. 46 at ¶ 22.) Defendants claim that

8 accommodating transgender service members would “impose costs on the military.” (Dkt. No.

9 69 at 34.) But the study preceding the June 2016 Policy indicates that these costs are

10 exceedingly minimal. (Dkt. Nos. 48, Ex. B at 57 (“[E]ven in the most extreme scenario . . . we

11 expect only a 0.13-percent ($8.4 million out of $6.2 billion) increase in [active component]

12 health care spending.”); 48 at ¶ 41 (“[T]he maximum financial impact . . . is an amount so small

13 it was considered to be ‘budget dust,’ hardly even a rounding error, by military leadership.’”).)

14 Indeed, the cost to discharge transgender service members is estimated to be more than 100

15 times greater than the cost to provide transition-related healthcare. (See Dkt. Nos. 32 at 20; 46

16 at ¶ 32; 48 at ¶ 18.)

17

Defendants’ claim that the policy prohibiting transgender individuals from serving

18 openly is entitled to substantial deference is also unavailing. (See Dkt. No. 69 at 29.)

19 Defendants rely on Rostker v. Goldberg, 453 U.S. 57 (1981). In Rostker the Supreme Court

20 considered whether the Military Selective Service Act (“MSSA”), which compelled draft

21 registration for men only, was unconstitutional. Id. at 59. Finding that the MSSA was enacted

22 after extensive review of legislative testimony, floor debates, and committee reports, the

23 Supreme Court held that Congress was entitled to deference when, in “exercising the

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 17

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 18 of 23

1 congressional authority to raise and support armies and make rules for their governance,” it

2 does not act “unthinkingly” or “reflexively and not for any considered reason.” See id. at 71-

3 72. In contrast, the prohibition on military service by transgender individuals was announced

4 by President Trump on Twitter, abruptly and without any evidence of considered reason or

5 deliberation. (See Dkt. No. 30 at ¶¶ 172-184.) The policy is therefore not entitled to Rostker

6 deference.7

7

Because Defendants have failed to demonstrate that the policy prohibiting transgender

8 individuals from serving openly is substantially related to important government interests, it does

9 not survive intermediate scrutiny.8 Plaintiffs are therefore likely to succeed on the merits of their

10 equal protection claim.

11

ii. Substantive Due Process9

12

The Court finds that Plaintiffs have established a likelihood of success on the merits of

13 their substantive due process challenge. Substantive due process protects fundamental liberty

14 interests in individual dignity, autonomy, and privacy from unwarranted government intrusion.

15 See U.S. Const., amend. V. These fundamental interests include the right to make decisions

16 concerning bodily integrity and self-definition central to an individual’s identity. See Obergefell

17 v. Hodges, 135 S. Ct. 2584, 2584 (2015) (“The Constitution promises liberty to all within its

18 reach, a liberty that includes certain specific rights that allow persons . . . to define and express

19

20 7 Defendants’ reliance on Goldman v. Weinberger, 475 U.S. 503 (1986), is also misplaced. See
21 Doe 1, 2017 WL 4873042, at *30 n.11 (distinguishing the policy at issue in Weinberger as having been “based on the ‘considered professional judgment” of the military).
22 8 For the same reasons, the policy is also unlikely to survive rational basis review.
23 9 Having granted Defendants’ Motion to Dismiss with regard to Plaintiffs’ procedural due process challenge, the Court does not reach the merits of that claim at this time.
24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 18

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 19 of 23

1 their identity.”); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984) (due process

2 “safeguards the ability independently to define one’s identity that is central to any concept of

3 liberty”). To succeed on their substantive due process challenge, Plaintiffs must establish a

4 governmental intrusion upon a fundamental liberty interest. The Court concludes that the policy

5 set forth in the Presidential Memorandum constitutes such an intrusion. The policy directly

6 interferes with Plaintiffs’ ability to define and express their gender identity, and penalizes

7 Plaintiffs for exercising their fundamental right to do so openly by depriving them of

8 employment and career opportunities. As discussed in the context of Plaintiffs’ equal protection

9 challenge, supra, Defendants have not demonstrated that this intrusion is necessary to further an

10 important government interest. Plaintiffs are therefore likely to succeed on the merits of their

11 substantive due process challenge.

12

iii. First Amendment

13

The Court finds that Plaintiffs have established a likelihood of success on the merits of

14 their First Amendment challenge. In general, laws that regulate speech based on its content (i.e.,

15 because of “the topic discussed or the idea or message expressed”) are presumptively

16 unconstitutional and subject to strict scrutiny. Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218,

17 2226-27 (2015). Military regulations on speech are permitted so long as they “restrict speech no

18 more than is reasonably necessary to protect the substantial governmental interest.” Brown v.

19 Glines, 444 U.S. 348, 355 (1980).

20

Plaintiffs contend the policy set forth in the Presidential Memorandum impermissibly

21 burdens “speech or conduct that ‘openly’ discloses a transgender individual’s identity or

22 transgender status” by subjecting openly transgender individuals to discharge and other adverse

23 actions. (See Dkt. No. 30 at ¶¶ 196-197, 234-236.) The Court agrees. The policy penalizes

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 19

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 20 of 23

1 transgender service members—but not others—for disclosing their gender identity, and is

2 therefore a content-based restriction. Even giving the government the benefit of a more

3 deferential standard of review under Brown, 444 U.S. at 355, the policy does not survive. As

4 discussed in the context of Plaintiffs’ equal protection challenge, supra, Defendants have not

5 demonstrated that the intrusion upon protected expression furthers an important government

6 interest.

7

B. Irreparable Harm

8

The Court finds that Plaintiffs are likely to suffer irreparable harm if an injunction does

9 not issue. The Individual and Organizational Plaintiffs have demonstrated a likelihood of

10 irreparable harm in the form of current and threatened injuries in fact, including denial of career

11 opportunities and transition-related medical care, stigmatic injury, and impairment of self-

12 expression. While Defendants claim these harms can be remedied with money damages (Dkt.

13 No. 69 at 23-24), they are incorrect. Unlike the plaintiffs in Anderson v. United States, 612

14 F.2d 1112 (9th Cir. 1979) and Hartikka v. United States, 754 F.2d 1516 (9th Cir. 1985), who

15 alleged harms "common to most discharged employees” (e.g., loss of income, loss of

16 retirement, loss of relocation pay, and damage to reputation) and not “attributable to any

17 unusual actions relating to the discharge itself,” Hartikka, 754 F.2d at 1518, the harms facing

18 the Individual Plaintiffs are directly attributable to the policy set forth in the Presidential

19 Memorandum. Back pay and other monetary damages proposed by Defendants will not

20 remedy the stigmatic injury caused by the policy, reverse the disruption of trust between

21 service members, nor cure the medical harms caused by the denial of timely health care. (See

22 Dkt. No. 84 at 28.) Moreover, to the extent Plaintiffs are likely to succeed on the merits of

23 their constitutional claims, these violations are yet another form of irreparable harm. See

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 20

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 21 of 23

1 Associated Gen. Contractors, 950 F.2d at 1412 (“alleged constitutional infringement will often

2 alone constitute irreparable harm.”) (citation omitted); see also Klein v. City of San Clemente,

3 584 F.3d 1196, 1207-08 (9th Cir. 2009) (“loss of First Amendment freedoms, for even minimal

4 periods of time, unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427

5 U.S. 347, 373 (1976)).

6

Plaintiff Washington State has demonstrated a likelihood of irreparable harm to its

7 sovereign and quasi-sovereign interests if it is “forced to continue to expend its scarce

8 resources to support a discriminatory policy when it provides funding or deploys its National

9 Guard.” (See Dkt. No. 97 at 8-9.) Washington State has also demonstrated that its ability to

10 recruit and retain service personnel for the Washington National Guard may be irreparably

11 harmed. See Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d

12 597, 603 (9th Cir. 1991) (“intangible injuries, such as damage to ongoing recruitment efforts

13 and goodwill, qualify as irreparable harm.”).

14

C. Balance of Equities and Public Interest

15

The Court finds that the balance of equities and the public interest are in Plaintiffs’

16 favor. If a preliminary injunction does not issue, Plaintiffs will continue to suffer injuries as a

17 result of the Presidential Memorandum, including deprivation of their constitutional rights. On

18 the other hand, Defendants will face no serious injustice in maintaining the June 2016 Policy

19 pending resolution of this action on the merits. Defendants claim they are in the process of

20 “gathering a panel of experts” to study the military’s policy on transgender service members

21 and assert, without explanation, that an injunction will “directly interfere with the panel’s work

22 and the military’s ability to thoroughly study a complex and important issue regarding the

23 composition of the armed forces.” (Dkt. No. 69 at 40.) The Court is not convinced that

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 21

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 22 of 23

1 reverting to the June 2016 Policy, which was voluntarily adopted by DoD after extensive study

2 and review, and which has been in place for over a year without documented negative effects,

3 will harm Defendants. See Doe 1, 2017 WL 4873042, at *33 (recognizing “considerable

4 evidence that it is the discharge and banning of [transgender] individuals that would have such

5 [negative] effects . . . .”) (emphasis in original).

6

Injunctive relief furthers the public interest as it “is always in the public interest to

7 prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990,

8 1002 (9th Cir. 2012) (citations omitted). Defendants’ contention that the public has a strong

9 interest in national defense does not change this analysis, as “[a] bare invocation of ‘national

10 defense’ simply cannot defeat every motion for preliminary injunction that touches on the

11 military.” Doe 1, 2017 WL 4873042, at *33; Stone, 2017 WL 5589122, at *16.

12

CONCLUSION

13

Plaintiffs have standing to bring this lawsuit challenging Defendants’ policy of

14 prohibiting transgender individuals from serving openly in the military. Plaintiffs’ claims for

15 violations of equal protection, substantive due process, and the First Amendment are properly

16 plead and ripe for resolution, and Plaintiffs are entitled to a preliminary injunction to protect the

17 status quo with regard to each of these claims. Plaintiffs have not properly plead a claim for

18 violation of procedural due process. Therefore, the Court rules as follows:

19

1. The Court GRANTS Defendants’ Motion to Dismiss with respect to Plaintiffs’

20 procedural due process claim;

21

2. The Court DENIES Defendants’ Motion to Dismiss with respect to Plaintiffs’

22 equal protection, substantive due process, and First Amendment claims;

23

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 22

Case 2:17-cv-01297-MJP Document 103 Filed 12/11/17 Page 23 of 23

1

3. The Court GRANTS Plaintiffs’ Motion for a Preliminary Injunction, and hereby

2 enjoins Defendants and their officers, agents, servants, employees, and attorneys, and any other

3 person or entity subject to their control or acting directly or indirectly in concert or participation

4 with Defendants from taking any action relative to transgender individuals that is inconsistent

5 with the status quo that existed prior to President Trump’s July 26, 2017 announcement. This

6 Preliminary Injunction shall take effect immediately and shall remain in effect pending

7 resolution of this action on the merits or further order of this Court.

8

9

The clerk is ordered to provide copies of this order to all counsel.

10

Dated December 11, 2017.

11

A

12

Marsha J. Pechman

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 23

 
 Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 1 of 9

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

8 RYAN KARNOSKI; STAFF SEARGEANT CATHERINE SCHMID;
9 D.L., formerly known as K.G., by his next friend and mother, LAURA
10 GARZA; HUMAN RIGHTS CAMPAIGN; and GENDER JUSTICE
11 LEAGUE,

12

Plaintiffs,

Case No: 2:17-cv-1297
COMPLAINT IN INTERVENTION BY STATE OF WASHINGTON FOR DECLARATORY AND INJUNCTIVE RELIEF

13

v.

14 DONALD TRUMP, et al,

15

Defendants.

16 STATE OF WASHINGTON,
17 Intervenor-Plaintiff,
18 v.
19 DONALD TRUMP, in his official
20 capacity as President of the United States; the UNITED STATES OF
21 AMERICA; JAMES N. MATTIS, in his official capacity as Secretary of Defense;
22 the UNITED STATES DEPARTMENT OF DEFENSE; ELAINE C. DUKE, in
23 her official capacity as Acting Secretary of Homeland Security; and the UNITED
24 STATES DEPARTMENT OF HOMELAND SECURITY,
25 Intervenor-Defendants.
26

COMPLAINT IN INTERVENTION BY STATE OF WASHINGTON FOR DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 2 of 9

1 I. INTRODUCTION
2 1. The State of Washington (“State”) brings this action to protect itself, its residents,
3 and the Washington National Guard from a facially discriminatory policy that targets
4 transgender individuals who wish to serve their country and their State.
5 2. The State brings this action to ensure that the health, well-being, and economic
6 interests of the State, its residents, and the Washington National Guard are not unconstitutionally
7 infringed by the federal government’s implementation of a ban on military service by
8 transgender individuals and a policy that denies federal funding for transgender service members
9 to access certain medical procedures – simply because of their sex, gender identity, or gender
10 expression.
11 II. JURISDICTION AND VENUE
12 3. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a).
13 4. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and
14 1391(e)(1). Defendants are the President of the United States, United States agencies, and United
15 States officers sued in their official capacities.
16 III. PARTIES
17 Intervenor-Plaintiff State of Washington
18 5. The Governor is the chief executive officer of the State. The Governor is
19 responsible for overseeing the operations of the State and ensuring the faithful execution of its
20 laws, including adherence to state and federal constitutional protections. The Governor is also
21 the commander-in-chief of the Washington National Guard and is responsible for ensuring
22 Washington’s safety in times of disaster or emergency.
23 6. The State has a quasi-sovereign interest in protecting the health, safety, and well-
24 being of its residents, including protecting its residents from unlawful discrimination and the
25 harms that result. The State’s interest in preventing and remedying injuries to the public’s health,
26

COMPLAINT IN INTERVENTION BY

1

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 3 of 9

1 safety, and physical and economic well-being extends to all of the State’s residents, including

2 individuals who suffer indirect injuries and members of the general public.

3

7. The State also has a quasi-sovereign interest in ensuring that its residents are not

4 excluded from the benefits that flow form participation in the federal system, including the rights

5 and privileges provided by the U.S. Constitution.

6

8. The State has a proprietary interest in protecting the State’s economic health from

7 the loss of military service and advancement opportunities for Washingtonians who are

8 transgender, and the attendant loss to Washington of employment, property, and sales tax

9 revenues that would be contributed by transgender service members and their families.

10

9. The State has a sovereign interest in protecting its territory and maintaining its

11 antidiscrimination laws. Excluding transgender Washingtonians from the pool of candidates who

12 can join the Washington National Guard may result in diminished numbers of service members

13 who can provide emergency response and disaster mitigation. The State has declared that

14 practices that discriminate against any of its inhabitants because of sex, sexual orientation,

15 gender identity, or gender expression are matters of public concern that threaten the rights and

16 proper privileges of the State and harm the public welfare, health, and peace of the people. See

17 Wash. Rev. Code § 49.60.010.

18

10. The United States military is the second largest employer in Washington State

19 and an important economic driver in Washington. There are approximately 60,000

20 Washingtonians engaged in military service either as active, reserve, or Guard members. These

21 Washingtonians serve their State and country at six major military bases in Washington State.

22 To serve in the United States’ military, Washingtonians must meet the accession standards of

23 the Department of Defense (“DoD”), which include the Transgender Military Service Ban

24 described below.

25

11. The Washington National Guard is an integral part of Washington’s emergency

26 preparedness and disaster recovery planning and response, as well as a member of Washington’s

COMPLAINT IN INTERVENTION BY

2

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 4 of 9

1 militia. Between 2007 and September 2017, the Washington National Guard was deployed eight

2 times to respond to emergencies in Washington State to fight forest fires, battle flooding, and

3 provide rescue services to communities devastated by landslides. Recruitment for the

4 Washington National Guard is subject to DoD policies governing accession into military service,

5 which includes the Transgender Military Service Ban.

6

Intervenor-Defendants

7

12. Defendant Donald Trump is the President of the United States, and issued the

8 August 25, 2017, Transgender Military Service Ban challenged here.

9

13. Defendant United States of America includes all government agencies and

10 departments responsible for implementation of President Trump’s August 25, 2017, Transgender

11 Military Service Ban.

12

14. Defendant James N. Mattis is the Secretary of the Department of Defense.

13 Secretary Mattis is responsible for implementing the Transgender Military Service Ban,

14 including the limitations on accession and health care. Secretary Mattis is also responsible for

15 the development of additional policies to implement the directive.

16

15. Defendant DoD is a Cabinet-level department that is responsible for overseeing

17 the Army, Navy, and Air Force including the United States Special Operations Command. The

18 DoD provides military forces needed to deter war and to protect the security of our country. DoD

19 has authority over the United States armed forces and is responsible for implementing policies

20 governing accession and service in the armed forces.

21

16. Defendant Elaine Duke is the Acting Secretary of the Department of Homeland

22 Security (“DHS”). Secretary Duke is responsible for implementing the Transgender Military

23 Service Ban, including the limitations on accession and health care, for the Coast Guard.

24 Secretary Duke is also responsible for the development of additional policies to implement the

25 directive.

26

COMPLAINT IN INTERVENTION BY

3

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 5 of 9

1

17. Defendant DHS is a Cabinet-level department that is responsible for the

2 coordination and unification of national security efforts. DHS has authority over the United

3 States Coast Guard including setting and implementing policies governing accession and service

4 in the Coast Guard.

5

IV. ALLEGATIONS

6

18. The military has a longstanding policy and practice of excluding transgender

7 individuals from serving in the military.

8

19. In 2014, the military issued its first report analyzing the military’s ban on service

9 by openly transgender individuals. The report found that there was no compelling reason for

10 banning transgender individuals from military service.

11

20. In July 2015, then-Secretary of Defense Ashton Carter created a work group

12 composed of senior representatives from each of the Military Departments, Joint Staff, and

13 relevant members of the Office of the Secretary of Defense to formulate policy options regarding

14 military service by transgender individuals. On or about July 13, 2015, Secretary Carter also

15 terminated the practice of involuntarily separating or denying reenlistment or continuation of

16 active or reserve service on the basis of gender identity – unless it went through an approval

17 process chaired by the Under Secretary of Defense for Personnel and Readiness.

18

21. On June 30, 2016, after a year-long, research-based assessment, which included

19 the leadership of the Armed Services, military medical and personnel experts, transgender

20 service members, outside medical experts, advocacy groups, and the RAND Corporation, DoD

21 lifted its categorical ban on military service by transgender individuals.

22

22. After lifting the categorical ban on military service by transgender individuals,

23 DoD issued guidance regarding the implementation of a policy that would allow openly

24 transgender individuals accession into military service. The policy was to be implemented in

25 stages over 12 months. The process included training for the entire force, and set July 1, 2017,

26 as the date that the military would allow accession by transgender recruits.

COMPLAINT IN INTERVENTION BY

4

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 6 of 9

1

23. On or around June 30, 2017, Secretary Mattis delayed the date that the military

2 would allow accession by openly transgender individuals to January 1, 2018.

3

24. On August 25, 2017, President Trump issued a memorandum titled “Military

4 Service by Transgender Individuals,” which set new policy directives for the military regarding

5 accession and military service by transgender individuals. Military Service by Transgender

6 Individuals, 82 Fed. Reg. 41,319 (Aug. 30, 2017) (“Transgender Military Service Ban”). The

7 memorandum directs the Secretaries of Defense and Homeland Security to (1) return to the

8 military’s pre-2016 policy regarding transgender service members; (2) bar openly transgender

9 individuals from accession, or joining the military; (3) ban the use of funds from the DoD and

10 DHS to fund certain medical procedures for transgender service members unless the service

11 members are already in the process of receiving such treatment; and (4) require the Secretaries

12 of Defense and Homeland Security to issue a plan to implement the above directives, including

13 “how to address transgender individuals currently serving in the United States military.”

14

25. President Trump relied upon his own judgment to reverse the military’s multiyear

15 strategic research and planning regarding implementation of policies that would allow openly

16 transgender individuals into military service. President Trump also relied upon his own judgment

17 to determine that “the previous Administration failed to identify a sufficient basis to conclude

18 that terminating the [military’s] longstanding policy and practice [of excluding transgender

19 individuals from military service] would not hinder military effectiveness and lethality, disrupt

20 unit cohesion, or tax military resources[.]” Transgender Military Service Ban § 1(a). President

21 Trump stated his judgment that “there remain meaningful concerns that further study is needed”

22 to ensure that allowing openly transgender individuals into military service would not have

23 negative consequences for the military. Id.

24

26. The effective dates on the provisions of the Transgender Military Service Ban

25 vary—the accession ban goes into effect January 1, 2018, with the remaining provisions effective

26 on March 23, 2018. Military Service by Transgender Individuals, 82 Fed. Reg. 41319.

COMPLAINT IN INTERVENTION BY

5

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 7 of 9

1

V. LEGAL CLAIMS

2

FIRST CAUSE OF ACTION

(EQUAL PROTECTION VIOLATION)

3 27. Plaintiff realleges and incorporates by reference herein all of the allegations of

4 paragraphs 1 through 26.

5 28. The Due Process Clause of the Fifth Amendment prohibits the federal

6 government from denying transgender individuals equal protection of the laws.

7 29. The Transgender Military Service Ban is a facially discriminatory policy that

8 constitutes sex and gender identity discrimination and targets individuals for discriminatory

9 treatment without lawful justification.

10 30. The discriminatory terms of the Transgender Military Service Ban are arbitrary

11 and cannot be sufficiently justified by federal interests.

12 31. Through their actions above and by maintaining the Transgender Military Service

13 Ban, Defendants have violated the equal protection guarantee of the Fifth Amendment.

14 32. Defendants’ violation causes ongoing harm to Washington State and its residents.

15

SECOND CAUSE OF ACTION

(SUBSTANTIVE DUE PROCESS VIOLATION) 16

33. Plaintiff realleges and incorporates by reference herein all of the allegations of 17

paragraphs 1 through 32. 18

34. The substantive component of the Due Process Clause of the Fifth Amendment 19

protects fundamental rights that are implicit in the concept of ordered liberty. 20

35. The Transgender Military Service Ban, without adequate justification, 21

impermissibly burdens fundamental liberty interests of transgender Washingtonians who 22

currently serve or seek accession into the military. 23

36. The Transgender Military Service Ban, without adequate justification, 24

impermissibly burdens fundamental liberty interests of transgender Washingtonians currently 25

serving in the military who need particular medical treatments. 26

COMPLAINT IN INTERVENTION BY

6

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 8 of 9

1

37. Through their actions above, Defendants have violated the substantive due

2 process protections of the Fifth Amendment.

3

38. Defendants’ violation causes ongoing harm to Washington State and its residents.

4

V. PRAYER FOR RELIEF

5

Wherefore, the State of Washington prays that the Court:

6

39. Declare that the Transgender Military Service Ban is unauthorized by and

7 contrary to the Constitution and laws of the United States;

8

40. Enjoin Defendants from implementing or enforcing the Transgender Military

9 Service Ban;

10

41. Enjoin Defendants from barring transgender individuals accession into military

11 service when exclusion is based solely on an individual’s sex, gender identity, or transgender

12 status;

13

42. Enjoin Defendants from taking adverse employment actions that are based solely

14 on a service member’s sex, gender identity, or transgender status;

15

43. Enjoin Defendants from denying transgender service members access to

16 necessary medical care;

17

44. Award reasonable attorneys’ fees and allowable costs of court; and

18

45. Award such additional relief as the interests of justice may require.

19

20

21

22

23

24

25

26

COMPLAINT IN INTERVENTION BY

7

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

Case 2:17-cv-01297-MJP Document 104 Filed 12/14/17 Page 9 of 9

1

DATED December 14, 2017.

2

ROBERT W. FERGUSON

3

Washington Attorney General

4 /s/ La Rond Baker

5

LA ROND BAKER, WSBA No. 43610

Assistant Attorney General

6

Office of the Attorney General

7

800 Fifth Avenue, Suite 2000 Seattle, WA 98104

8

(206) 464-7744

LaRondB@atg.wa.gov

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

COMPLAINT IN INTERVENTION BY

8

STATE OF WASHINGTON FOR

DECLARATORY AND INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

 
 Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 1 of 31

1

The Honorable Marsha J. Pechman

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10 RYAN KARNOSKI, et al.,

11 Plaintiffs,
12 v.
13

14

DONALD J. TRUMP, in his official capacity as President of the United States, et al.,

15 Defendants.
16

Case No. 2:17-cv-01297-MJP
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
NOTE ON MOTION CALENDAR: February 16, 2018
ORAL ARGUMENT REQUESTED

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 2 of 31

1

TABLE OF CONTENTS

2 INTRODUCTION .......................................................................................................................... 1

3 STATEMENT OF UNDISPUTED FACTS ................................................................................... 2

4 I.

Comprehensive Review Leading to Open Military Service by Transgender People ..........2

5 II. President Trump’s Ban on Military Service by Transgender People ..................................5 III. Plaintiffs ...............................................................................................................................6

6

LEGAL STANDARD..................................................................................................................... 8 7

8 ARGUMENT .................................................................................................................................. 9

9 I.

The Ban’s Discrimination Against Transgender People Violates Equal Protection..........10 A. The Ban Requires Heightened Scrutiny, Both Because It Discriminates

10

Based on Sex and Because It Employs a Suspect Classification.......................... 10

11

B. The Government Lacks Any Justification for the Sweeping Exclusion of Transgender People from Military Service and the Deprivation of Medically

12

Necessary Care...................................................................................................... 14

13

1. Barring Qualified Individuals From the Military Because They Are Transgender Does Not Further Military Effectiveness. ............................ 16

14

2. Excluding Transgender People From Military Service Does Not

15

Promote Unit Cohesion............................................................................. 18

3. Cost Savings from the Selective Withdrawal of Medically Necessary

16

Care for Transgender Service Members Cannot Justify the Ban.............. 19

17 II.
18 III. 19

The Ban Violates Plaintiffs’ Substantive Due Process Right to Live in Accordance with Their Gender Identity Free From Government Intrusion. .........................................21
The Ban’s Prohibition Against Openly Transgender Service Members Violates Plaintiffs’ First Amendment Right to Express Their Gender Identity. ..............................22

20 CONCLUSION............................................................................................................................. 23

21

22

23

24

25

26

27

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - i [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 3 of 31

1 Cases

TABLE OF AUTHORITIES

2 Adkins v. City of New York,

3

143 F. Supp. 3d 134 (S.D.N.Y. 2015) ................................................................................ 12, 13

4 Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986).................................................................................................................... 9

5

Ball v. Massanari,

6

254 F.3d 817 (9th Cir. 2001) .............................................................................................. 10, 11

7 Bassett v. Snyder,

8

59 F. Supp. 837 (E.D. Mich. 2014)........................................................................................... 20

9 Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ.,

208 F. Supp. 3d 850 (S.D. Ohio 2016) ..................................................................................... 13

10

Brocksmith v. United States,

11

99 A.3d 690 (D.C. 2014) .......................................................................................................... 12

12 City of Cleburne v. Cleburne Living Ctr.,

13

473 U.S. 432 (1985).................................................................................................................. 18

14 Crawford v. Cushman,

531 F.2d 1114 (2d Cir. 1976) ............................................................................................. 18, 21

15

Diaz v. Brewer,

16

656 F.3d 1008 (9th Cir. 2011) .................................................................................................. 20

17 Doe 1 v. Trump,

18

No. 17-5267, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017) .................................................... 14

19 Doe 1 v. Trump (“Doe”),

-- F. Supp. 3d --, 2017 WL 4873042 (D.D.C. 2017) .............................................. 9, 12, 15, 19

20

Evancho v. Pine-Richland Sch. Dist.,

21

237 F. Supp. 3d 267 (W.D. Pa. 2017)....................................................................................... 12

22 Gay Students Org. of Univ. of N.H. v. Bonner,

23

509 F.2d 652 (1st. Cir. 1974).................................................................................................... 23

24 Glenn v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ................................................................................................ 13

25

Golinski v. U.S. Office of Pers. Mgmt.,

26

824 F. Supp. 2d 968 (N.D. Cal. 2012) ...................................................................................... 11

27 Henkle v. Gregory,

28

150 F. Supp. 2d 1067 (D. Nev. 2001)....................................................................................... 22

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - ii [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 4 of 31

Hernandez-Montiel v. INS,

1

225 F.3d 1084 (9th Cir. 2000) .................................................................................................. 21

2 Latta v. Otter,

3

771 F.3d 456 (9th Cir. 2014) .................................................................................................... 18

4 Log Cabin Republicans v. United States,

716 F. Supp. 2d 884 (C.D. Cal. 2010) . .................................................................................... 23

5

Mem. Hosp. v. Maricopa Cty.,

6

415 U.S. 250 (1974).................................................................................................................. 20

7 Nieto v. Flatau,

8

715 F. Supp. 2d 650 (E.D.N.C. 2010) ...................................................................................... 23

9 Norsworthy v. Beard,

87 F. Supp. 3d 1104 (N.D. Cal. 2014) .......................................................................... 11, 12, 20

10

Obergefell v. Hodges,

11

135 S. Ct. 2584 (2015).............................................................................................................. 21

12 Palmore v. Sidoti,

13

466 U.S. 429 (1984).................................................................................................................. 18

14 Plyler v. Doe,

457 U.S. 202 (1982).................................................................................................................. 20

15

Roberts v. U.S. Jaycees,

16

468 U.S. 609 (1984).................................................................................................................. 21

17 Rostker v. Goldberg,

18

453 U.S. 57 (1981).................................................................................................................... 15

19 S.A. Empresa v. Walter Kidde & Co.,

690 F.2d 1235 (9th Cir. 1982) .................................................................................................... 9

20

Schwenk v. Hartford,

21

204 F.3d 1187 (9th Cir. 2000) .................................................................................................. 11

22 Sessions v. Morales-Santana,

23

137 S. Ct. 1678 (2017).............................................................................................................. 13

24 SmithKline Beecham Corp. v. Abbott Labs.,

740 F.3d 471 (9th Cir. 2014) .............................................................................................. 13, 14

25

Stockman v. Trump,

26

No. EDCV 17-1799 JGB (KKx) (C.D. Cal. Dec. 22, 2017)..................................................... 11

27 Stone v. Trump,

28

-- F. Supp. 3d --, 2017 WL 5589122 (D. Md. 2017) ................................................................ 14

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - iii [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 5 of 31

Thomas v. Gonzales,

1

409 F.3d 1177 (9th Cir. 2005) .................................................................................................. 21

2 United States v. Virginia (“VMI”),

3

518 U.S. 515 (1996)................................................................................................ 11, 13, 14, 17

4 Watkins v. Army,

875 F.2d 699 (9th Cir. 1989) .................................................................................................... 10

5

Weaver v. Nebo Sch. Dist.,

6

29 F. Supp. 2d 1279 (D. Utah 1998)......................................................................................... 23

7 Wengler v. Druggists Mut. Ins. Co.,

8

446 U.S. 142 (1980).................................................................................................................. 13

9 Whitaker v. Kenosha Unified Sch. Dist.,

858 F.3d 1034 (7th Cir. 2017) ............................................................................................ 11, 12

10

Windsor v. United States,

11

699 F.3d 169 (2d Cir. 2012) ..................................................................................................... 11

12 Witt v. Dep’t. of Air Force,

13

527 F.3d 806 (9th Cir. 2008) .............................................................................................. 18, 21

14 Other Authorities

15

Dep’t of Health and Human Servs., Dep’tl Appeals Board, NCD 140.3, Transsexual Surgery,

16

No. A-13-87, 2014 WL 2558402 (May 30, 2014).............................................................. 19, 20

17 Rules 18 Fed. R. Civ. P. 56(a) ....................................................................................................................... 8

19

20

21

22

23

24

25

26

27

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - iv [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 6 of 31

1

INTRODUCTION

2

President Trump’s unilateral decision to strip transgender people of the honor of military

3 service and the means to care for their medical needs was unconstitutional from the moment it

4 was announced to the world on July 26, 2017. In the months since that time, the rest of the

5 federal government has scrambled to construct a defense of that decision—from the White

6 House staff saddled with transforming three 140-character tweets into a Presidential

7 Memorandum, to the blindsided Department of Defense officials dispatched to conduct a “study”

8 of President Trump’s decision, to the Department of Justice lawyers tasked with stretching the

9 powers of the Presidency to justify an unprecedented betrayal of those willing to lay down their

10 lives for our country. But no amount of reverse engineering by this vast array of federal officials

11 can create the impossible: the existence of an adequate justification for President Trump’s

12 decision at the time the decision was actually made. For that simple reason, Plaintiffs are entitled

13 to summary judgment.

14

This deficiency in the government’s defense became especially pronounced after

15 Plaintiffs moved for a preliminary injunction. In response, Defendants mounted no substantive

16 defense of President Trump’s policy (the “Ban”), because the factual support they sought to

17 tender was still being conceived through the “study” mandated by President Trump. Against this

18 backdrop, this Court concluded that the Ban was unsupported by any adequate justification;

19 indeed, it also found that the proffered justifications were contradicted by the extant evidence,

20 including the military’s own comprehensive review. Defendants cannot rectify this deficiency

21 with post hoc factual support that could not have actually motivated President Trump’s decision

22 because it did not exist when the decision was made. Instead, the Ban must be measured against

23 the state of affairs that existed on July 26, 2017—and this Court has already confirmed that the

24 Ban fails any level of constitutional scrutiny when examined against that record.

25

Based on the argument and evidence presented in support of Plaintiffs’ preliminary

26 injunction motion, and submitted again here, this Court has everything it needs to grant summary

27 judgment to Plaintiffs, declaring the Ban unconstitutional and permanently enjoining it from ever

28 being implemented.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 1 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 7 of 31

1

STATEMENT OF UNDISPUTED FACTS1

2 I. 3

Comprehensive Review Leading to Open Military Service by Transgender People Transgender people have always served in the military, but until recently, they served in

4 silence. In 2010, Congress repealed the so-called “Don’t Ask, Don’t Tell” statute preventing

5 openly gay, lesbian, and bisexual people from serving the military, which raised questions about

6 the military’s policy on service by transgender people. Decl. of Eric Fanning ¶ 11. Particularly

7 among commanders in the field, there was increasing awareness that there were capable and

8 experienced transgender service members in every branch of the military. Id. Starting in 2014,

9 the military thus took steps to evaluate its policy concerning transgender service members. Decl.

10 of Deborah Lee James ¶ 7.

11

First, in 2014, the Department of Defense (DoD) eliminated a then-existing categorical

12 ban on service by transgender people, thereby enabling each branch of the military to reassess its

13 own service-specific ban. Id. ¶ 8. As of August 2014, there was thus “no longer a department-

14 wide position on whether transgender persons should be disqualified for retention.” Id.

15

Second, in July 2015, former Secretary of Defense Ashton Carter ordered a working

16 group of senior DoD personnel to identify practical issues related to transgender Americans

17 serving openly and to develop a plan to address those issues and maximize military readiness

18 (“Working Group”). Decl. of Brad Carson ¶ 8; Decl. of Michael Mullen ¶ 6. The Working Group

19 included roughly twenty-five members, and each branch of military service was represented by a

20 senior uniformed officer, a senior civilian official, and various staff members. Carson Decl. ¶ 9.

21 When the Working Group was in operation, its proceedings were reported to and reviewed by

22 upper level DoD personnel at meetings attended by the Joint Chiefs of Staff, the Service

23 Secretaries, and the Secretary of Defense. Decl. of Raymond Mabus ¶ 20.

24

Among other steps, the Working Group commissioned the RAND Corporation, a

25 nonprofit research institution that provides research and analysis to the Armed Services, to study

26 the impact of allowing transgender people to serve openly. Carson Decl. ¶ 11. In particular,

27
1 The record here includes substantially similar declarations as those submitted in support of Plaintiffs’ preliminary

28

injunction motion, supplemented with relevant factual updates as appropriate, as well as declarations from former Secretary of the Army Eric Fanning and former Secretary of the Air Force Deborah Lee James.

PLAINTIFFS’ MOTION FOR SUMMARY

2101 Fourth Avenue, Suite 1500

JUDGMENT - 2

NEWMAN DU WORS LLP

Seattle, Washington 98121

[2:17-cv-01297-MJP]

(206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 8 of 31

1 RAND was instructed to study (1) the health care needs of the transgender population and the

2 likely costs of providing health care coverage for transition-related treatments; (2) the potential

3 readiness implications of allowing transgender service members to serve openly; and (3) the

4 experiences of foreign militaries that permit transgender service members to serve openly.

5 Mabus Decl., Ex. B (hereinafter, “RAND Report”) at iii.

6

To answer these questions, RAND examined, among other data, transgender population

7 prevalence estimates, transition-related care usage data, care utilization rates from foreign

8 countries, rates of gender dysphoria in the United States veteran population, and the likely

9 monetary costs and deployment-related effects of transition-related health care. Id. at 12, 13, 29,

10 33-42. The report also examined open service by transgender people in the Australian, Canadian,

11 Israeli, and United Kingdom militaries, id. at 51-61, and ultimately returned 112 pages of

12 analysis and findings.

13

This extensive endeavor found “no evidence” that allowing transgender people to serve

14 openly would negatively impact unit cohesion, operational effectiveness, or readiness. Id. at xiii,

15 39-47. It also concluded that coverage for transition-related medical care would represent an

16 “exceedingly small” portion of DoD’s overall health care expenditure. Id. at xi. Conversely, the

17 report affirmatively identified “significant costs” if transgender troops were separated through a

18 ban on open service, as the military would lose skilled and qualified personnel, requiring

19 expensive and time-consuming training to fill vacancies in units, Carson Decl. ¶ 21; Mabus Decl.

20 ¶ 18, would have to engage in “costly administrative processes” to effect their discharge, and

21 would risk “declining productivity, and other negative outcomes due to lack of treatment for

22 gender identity–related issues,” RAND Report at 46.

23

In addition to considering the analysis of the RAND Report, the Working Group also

24 considered the comprehensive advice of medical experts, personnel experts, and readiness

25 experts, as well as health insurance companies, civilian employers, and commanders whose units

26 included transgender service members. Carson Decl. ¶ 10. The goal of the Working Group was

27 to be as comprehensive as possible and, to that end, it considered “all available” literature and

28 evidence. James Decl. ¶ 11.
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 3 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 9 of 31

1

As noted, the goal of the Working Group was to identify and address all relevant issues

2 relating to service by openly transgender people. Carson Decl. ¶ 22. For example, the Working

3 Group considered the psychological health and stability of transgender people. It confirmed that

4 being transgender—that is, having a gender identity different from one’s birth-assigned sex—is

5 not a psychological disorder. Id. ¶ 23; accord Decl. of George Brown ¶ 24. While some

6 transgender people experience gender dysphoria, which is clinically significant distress

7 associated with the incongruence between one’s gender identity and birth-assigned sex, that

8 condition can be fully resolved with appropriate medical care. Carson Decl. ¶ 23; Brown Decl. ¶

9 31. The Working Group also examined the issue of deployability, and it determined that service

10 members with periods of limited deployability due to transition-related care should not be treated

11 differently from other service members who are temporarily non-deployable due to other medical

12 conditions. Carson Decl. ¶ 22; Mabus Decl. ¶ 15; James Decl. ¶ 18; Fanning Decl. ¶ 18.

13

By the conclusion of its discussion and analysis, all members of the Working Group

14 (including senior uniformed personnel) unanimously agreed that transgender people should be

15 permitted to serve openly. Mabus Decl. ¶ 21; James Decl. ¶ 22; Fanning Decl. ¶ 25; Carson Decl.

16 ¶ 27. The Working Group concluded that banning service by transgender individuals would harm

17 the military by excluding qualified individuals based on a characteristic unrelated to fitness to

18 serve and lead to the loss of highly trained and experienced service members. Carson Decl. ¶¶

19 25-26; Mabus Decl. ¶ 18; James Decl. ¶¶ 20-23; Fanning Decl. ¶¶ 21-22.

20

Based on the recommendations of the Working Group, Secretary Carter issued a formal

21 directive on June 30, 2016 setting forth the policy “that service in the United States military

22 should be open to all who can meet the rigorous standards for military service and readiness” and

23 that “transgender individuals shall be allowed to serve in the military.” Mabus Decl., Ex. C at 2.

24 The policy was designed to be implemented over the course of a year, with accessions (i.e., entry

25 into the military) of transgender troops to begin on July 1, 2017, which was subsequently

26 extended by six months to January 1, 2018. Id., Ex. C, Attachment at 1; Decl. of Derek Newman,

27 Ex. 4. Each of the military services took steps to begin implementing the policy. Mabus Decl.

28 ¶ 25; James Decl. ¶ 27; Fanning Decl. ¶ 41.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 4 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 10 of 31

1

For more than a year after June 2016, numerous service members disclosed their

2 transgender status to the military in reliance upon DoD guidance that they would not be

3 discharged on that basis. Mabus Decl. ¶ 37. They risked their jobs, housing, and progress toward

4 retirement benefits in reliance upon DoD’s assurances. Id. ¶ 49.

5 II. 6

President Trump’s Ban on Military Service by Transgender People On July 26, 2017, President Trump unexpectedly reversed military policy with respect to

7 service by transgender people. President Trump announced through a series of tweets that he

8 would “not accept or allow” transgender people “to serve in any capacity in the U.S. Military”

9 and expressed that the military “cannot be burdened with the tremendous medical costs and

10 disruption that transgender [people] in the military would entail.” Newman Decl., Ex. 1. On

11 August 25, 2017, he issued a Presidential Memorandum implementing this discriminatory policy

12 (together with tweets, “the Ban”). Id., Ex. 2.

13

The Ban includes three components. First, in a complete reversal of existing military

14 policy, the Ban provides for the discharge of openly transgender service members. Id., Ex. 2

15 (directing the Secretaries of Defense and Homeland Security to “return” to the former policy of

16 excluding transgender service members). Second, the Ban indefinitely bars the accession of

17 transgender individuals into the military. Id. While the government has suggested in prior filings

18 that the accessions ban could be subject to waiver, see Dkt. No. 69 at 7, these waivers have never

19 been granted to the knowledge of those familiar with the process. Brown Decl. ¶ 40; Decl. of

20 Raymond Mabus, Dkt. No. 86, ¶ 10. Third, the Ban singles out the health care needs of

21 transgender service members for adverse, discriminatory treatment. Newman Decl., Ex. 2

22 (prohibiting the military from “fund[ing] sex reassignment surgical procedures for military

23 personnel,” subject to limited exceptions).

24

In contrast to the years of work and process that led to the military’s prior inclusive

25 policy, there is no indication, much less evidence, that President Trump’s July 26, 2017

26 announcement was the product of any meaningful factual inquiry, deliberative review, or

27 considered military judgment. Mabus Decl. ¶¶ 40, 47-48, 52; James Decl. ¶ 38; Fanning Decl. ¶

28 55; see also Newman Decl., Exs. 6-8. As Secretary Mabus explains, “[e]ven individuals who had

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 5 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 11 of 31

1 reservations at the time the Working Group was announced trusted in the process and believed it

2 was a fair and deliberative process that met the high standards of the military.” Mabus Decl. ¶

3 48. However, President Trump’s “abrupt reversal leaves the impression among service members

4 that military decision making is instead arbitrary and subject to political whims.” Id.

5

Upon receipt of the Presidential Memorandum, the Department of Defense stated that it

6 “will carry out the president’s direction” and that, “[a]s directed, [it] will develop a study and

7 implementation plan.” Newman Decl., Ex 2. The unequivocal purpose of the plan is “to

8 implement the policy and directives in the Presidential Memorandum.” Id., Ex. 3.

9 III. Plaintiffs

10

Plaintiffs include six transgender individuals who are currently serving in the military,

11 three transgender individuals who wish to join the military, and three organizations whose

12 members are injured by the Ban.

13

The Plaintiffs who are currently serving bring a wealth of talent and experience to the

14 military. They have fought terrorism, served in far-flung locations around the world, and

15 promoted stability in strife-riven regions. Decl. of Terece Lewis ¶ 5; Decl. of Lindsey Muller ¶ 9;

16 Decl. of Phillip Stephens ¶ 7. They perform a wide range of roles vital to the military, including

17 intelligence analysis, aviation, mechanical work, and servicing of information systems. Decl. of

18 Cathrine Schmid Decl. ¶ 7; Decl. of Megan Winters ¶ 7; Muller Decl. ¶ 7; Lewis Decl. ¶ 6;

19 Stephens Decl. ¶ 7. They have collectively served our country for decades, and each represents a

20 significant investment of public resources, including specialized training. Muller Decl. ¶ 11;

21 Winters Decl. ¶ 7; Stephens Decl. ¶ 7. The Plaintiffs who wish to join the military aspire to

22 perform social work, teach survival skills, and dispose of explosive ordnance. Decl. of Ryan

23 Karnoski ¶ 4; Decl. of D.L. ¶ 4; Decl. of Conner Callahan ¶ 5. All the individual Plaintiffs are

24 united by their common desire to serve our country, putting the needs of others before their own

25 and enduring the dangers and sacrifices required by military life.

26

The fact that the individual Plaintiffs are transgender has no bearing on their individual

27 fitness to serve. To the contrary, the military has bestowed honors on a number of them in

28 recognition of their exemplary service. Schmid Decl. ¶ 15; Muller Decl. ¶ 12; Lewis Decl. ¶ 7.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 6 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 12 of 31

1 Many also serve as officers, and one has more than a thousand service members under her

2 command. Muller Decl. ¶ 7; Lewis Decl. ¶ 3; Winters Decl. ¶ 3; Stephens Decl. ¶ 3. The loss of

3 their skill, talent, and experience would leave the military with gaping, costly-to-fill holes. James

4 Decl. ¶¶ 40-41; Fanning Decl. ¶ 57; Mabus Decl. ¶ 45; Mullen Decl. ¶ 8; Carson ¶¶ 31-32.

5 Furthermore, in working with transgender service members to develop their transition plans, the

6 military’s own medical staff have acknowledged that Plaintiffs are fit to serve. Lewis Decl. ¶ 16;

7 Stephens Decl. ¶ 15; Winters Decl. ¶ 30; Muller Decl. ¶ 37; accord Brown Decl. ¶ 55.

8

Plaintiffs relied on the government’s assurances that they would be able to serve openly.

9 Many took steps to transition only after the government lifted the ban on open service. Lewis

10 Decl. ¶ 11; Stephens Decl. ¶ 12; Winters Decl. ¶ 12. One began hormone therapy on the day

11 before President Trump announced the Ban, long after the military had implemented the

12 framework for open service. Lewis Decl. ¶ 13.

13

Plaintiffs have worked closely with their chain of command during their transition, as

14 required by military policy, thereby ensuring that the needs of the military continue to be met.

15 Schmid Decl. ¶ 13; Muller Decl. ¶ 37; Winters Decl. ¶ 16; Lewis Decl. ¶ 15; Stephens Decl.

16 ¶ 18. Transitioning has not only helped transgender service members excel in their own

17 performance by facilitating their health, but it has also allowed them to forge stronger

18 relationships with other service members, thereby fostering greater trust and unit cohesion.

19 Lewis Decl. ¶ 25; Schmid Decl. ¶¶ 16-17; Stephens Decl. ¶ 19; Muller Decl. ¶ 24 Stephens Decl.

20 ¶ 33.

21

The individual Plaintiffs, as well as members of Plaintiffs Human Rights Campaign,

22 American Military Partners Association, and Gender Justice League, suffer a variety of harms on

23 account of the Ban. Decl. of Sarah Warbelow; Decl. of Ashley Broadway; Decl. of Danni Askini.

24 As this Court previously found when granting a preliminary injunction, the Ban denies them “the

25 opportunity to serve in the military on the same terms as other service members, deprives them

26 of dignity, and subjects them to stigmatization,” betraying their commitment to service of their

27 fellow Americans. Dkt. No. 103 (hereafter, “Order”) at 8. The Ban has also created “a credible

28 threat of discharge,” id. at 7, as illustrated by the separation proceedings threatened against

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 7 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 13 of 31

1 Plaintiff Winters prior to this Court’s preliminary injunction. Winters Decl. ¶¶ 23-24. By

2 threatening Plaintiffs’ careers, the Ban has also threatened the resources they use to sustain their

3 families. Lewis Decl. ¶¶ 8, 22 (describing child with serious medical needs whose well-being

4 hinges on family health coverage provided to service members); accord Broadway Decl. ¶ 9.

5 Furthermore, in cutting off health services that can be critical to transgender people, the Ban has

6 singled out their medical needs as less important and deserving of care than those of other

7 service members. Order at 8; Decl. of Jane Doe ¶¶ 12-13; Stephens Decl. ¶ 14; Lewis Decl. ¶ 17;

8 Winters Decl. ¶ 32; Schmid Decl. ¶ 11.

9

The Ban has likewise, but for preliminary injunctions issued by courts, closed the

10 military to transgender accessions. “Plaintiffs Karnoski, D.L, and Callahan . . . face a credible

11 threat of being denied opportunities to compete for accession on equal footing with non-

12 transgender individuals.”2 Order at 7-8. Indeed, the Ban also closes doors even for those already

13 in military ranks. Schmid Decl. ¶¶ 28-32 (describing impact of accession ban on warrant officer

14 application); see also Decl. of Timothy McCracken, Dkt. No. 70, ¶ 70 (admitting that Plaintiff

15 Schmid’s application was put “on hold . . . [i]n accordance with the Secretary’s Interim Guidance

16 concerning accessions”).

17

Finally, by threatening Plaintiffs’ ability to join or stay in the military, the Ban has also

18 chilled Plaintiffs’ freedom of expression and intruded upon their liberty to live in accordance

19 with their gender identity. Order at 8; Doe Decl. ¶¶ 3-17.

20

LEGAL STANDARD

21

A court “shall grant summary judgment if the movant shows that there is no genuine

22 dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”

23 Fed. R. Civ. P. 56(a). By its terms, “this standard provides that the mere existence of some

24 alleged factual dispute between the parties will not defeat an otherwise properly supported

25

2 Following this Court’s preliminary injunction, Plaintiff Callahan has taken steps to begin the enlistment process.

26 Callahan Decl. ¶¶ 15-19. Based on the accessions criteria currently in effect, Plaintiff D.L. intends to apply to the
military 18 months after the completion of medical treatment associated with his gender transition. D.L. Decl. ¶ 5.

27 Plaintiff Karnoski has a pending application to graduate school, the outcome of which affects whether he would
either join the Reserves or seek commission for active duty, and he also desires reasonable certainty before joining

28

the military that he will not thereafter be discharged because of his transgender status, which is dependent upon litigation developments beyond the preliminary injunction. Karnoski Decl. ¶¶ 22-23.

PLAINTIFFS’ MOTION FOR SUMMARY

2101 Fourth Avenue, Suite 1500

JUDGMENT - 8

NEWMAN DU WORS LLP

Seattle, Washington 98121

[2:17-cv-01297-MJP]

(206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 14 of 31

1 motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).

2 Instead, “the requirement is that there be no genuine issue of material fact.” Id. To be material, a

3 dispute must be substantive enough to “affect the outcome of the suit under the governing law.”

4 Id. at 248. “[I]rrelevant or unnecessary” disputes do not prevent granting the motion, id., and “[a]

5 party cannot manufacture a genuine issue of material fact merely by making assertions in its

6 legal memoranda,” S.A. Empresa v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982).

7

ARGUMENT

8

This Court has already ruled on the central issues in this case: that the Ban requires

9 heightened scrutiny because it discriminates against transgender people, that the Ban intrudes on

10 Plaintiffs’ liberty to live in accordance with their gender identity, and that the Ban imposes a

11 content-based restriction on speech. Order at 15-20. As this Court explained, Plaintiffs “raise

12 purely legal issues (i.e., whether the Presidential Memorandum violates their constitutional

13 rights),” id. at 12, and those issues are ripe for resolution through summary judgment.

14

This Court also determined that Defendants failed to meet their burden of justifying the

15 Ban’s constitutional intrusions, because “all of the reasons proffered by the President for

16 excluding transgender individuals from the military [are] not merely unsupported, but [are]

17 actually contradicted by the studies, conclusions, and judgment of the military itself.” Id. at 16

18 (quoting Doe v. Trump (“Doe”), -- F. Supp. 3d --, 2017 WL 4873042, at *30 (D.D.C. 2017).

19 Accordingly, when President Trump announced the Ban on July 26, 2017, there is no genuine

20 dispute that he lacked the requisite support to justify his sweeping decision to bar transgender

21 people from military service. Nothing manufactured by the government after-the-fact can change

22 that reality.

23

Plaintiffs have assembled an extensive record confirming what the military has already

24 learned throughout history, time and again: maintaining readiness and upholding

25 nondiscrimination are not mutually exclusive but, rather, go hand-in-hand. The Ban’s

26 presumptive exclusion of an entire class of people based on their gender identity deprives the

27 military of qualified, skilled, and talented individuals. That exclusion is also profoundly

28 damaging to those directly affected—not only threatening their livelihoods and their ability to

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 9 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 15 of 31

1 care for themselves, but also denigrating their value as members of society worthy of equal

2 dignity and respect. Because Defendants have not justified, and cannot justify, those harms, this

3 Court should grant summary judgment to Plaintiffs, issue declaratory relief holding the Ban

4 unconstitutional, and permanently enjoin Defendants from ever implementing any aspect of it.

5 I. 6

The Ban’s Discrimination Against Transgender People Violates Equal Protection. Plaintiffs have shown that the Ban violates their basic right to equal protection under the

7 law. This Court has already held that the Ban is subject to intermediate scrutiny, at a minimum,

8 because it discriminates based on sex. In addition, because discrimination against transgender

9 people exhibits all the indicia of a suspect classification, the Ban should also be subject to strict

10 scrutiny. But under any level of scrutiny, including rational basis review, the Ban is bereft of any

11 constitutionally adequate justification. Accordingly, Defendants also cannot meet their burden of

12 showing that the Ban substantially furthers an important government interest under intermediate

13 scrutiny, nor that it is narrowly tailored to any compelling interest under strict scrutiny.

14

A. The Ban Requires Heightened Scrutiny, Both Because It Discriminates Based

15

on Sex and Because It Employs a Suspect Classification.

16

Laws are subject to heightened judicial scrutiny when they classify or discriminate

17 among individuals based on presumptively illegitimate lines. For example, “[d]iscriminations

18 that burden some despised or politically powerless groups are so likely to reflect antipathy

19 against those groups that the classifications . . . must be strictly scrutinized.” Watkins v. Army,

20 875 F.2d 699, 712 n.4 (9th Cir. 1989) (Norris, J., concurring) (analyzing sexual orientation

21 discrimination as a suspect classification). “Such groups are generally termed ‘suspect classes.’”

22 Id. Similarly, certain other groups with a “history of past discrimination” are “entitle[d] . . . to

23 intermediate scrutiny” and are “termed ‘quasi-suspect’ classes” under equal protection doctrine.

24 Id. “When conducting an equal protection analysis,” courts thus first ask whether a “legislative

25 or administrative classification at issue burdens a suspect or quasi-suspect class.” Ball v.

26 Massanari, 254 F.3d 817, 823 (9th Cir. 2001) (internal quotation marks omitted).

27

Sex Discrimination. Here, the Court correctly held that the Ban discriminates on the

28 basis of sex, a quasi-suspect classification, and is therefore subject to intermediate scrutiny at a

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 10 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 16 of 31

1 minimum. Order at 15; see also United States v. Virginia (“VMI”), 518 U.S. 515, 532-34 (1996)

2 (requiring the government to provide an “exceedingly persuasive justification” for the exclusion

3 of women from the Virginia Military Institute); Ball, 254 F.3d at 823 (recognizing that sex

4 discrimination constitutes a quasi-suspect classification). The reason for that is straightforward:

5 discrimination against transgender people inherently turns on sex-based considerations. See

6 Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (holding that discrimination

7 motivated by an individual’s gender identity or perceived gender nonconformity is a form of

8 gender discrimination); Stockman v. Trump, No. EDCV 17-1799 JGB (KKx) (C.D. Cal. Dec. 22,

9 2017) (granting preliminary injunction against Ban and recognizing that “discrimination on the

10 basis of one’s transgender status is equivalent to sex-based discrimination”);3 accord Whitaker v.

11 Kenosha Unified Sch. Dist., 858 F.3d 1034, 1049 (7th Cir. 2017) (canvassing authority that

12 discrimination against transgender people constitutes sex-based discrimination); Mabus Decl.,

13 Ex. C, Attachment at 2 (DoD admitting that discrimination against individuals “based on gender

14 identity is a form of sex discrimination”). It is impossible to take “gender” out of discrimination

15 against transgender people.

16

Suspect Classification. Furthermore, discrimination against transgender people also

17 independently requires strict scrutiny. See Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 (N.D.

18 Cal. 2014) (“discrimination based on transgender status independently qualifies as a suspect

19 classification”). Strict scrutiny is warranted where the government targets a class that (1) has

20 been “historically subjected to discrimination,” (2) has a defining characteristic bearing no

21 “relation to ability to perform or contribute to society,” (3) has “obvious, immutable, or

22 distinguishing characteristics,” and (4) is “a minority or politically powerless.” Windsor v.

23 United States, 699 F.3d 169, 181 (2d Cir. 2012), aff’d on other grounds, 133 S. Ct. 2675 (2013)

24 (internal quotation marks omitted). The first two considerations alone can be dispositive. See

25 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 983 (N.D. Cal. 2012).

26

All of these indicia are present in the case of government discrimination against

27 transgender people. First, there has been a long and ugly history of discrimination against

28 3 Available at http://www.nclrights.org/wp-content/uploads/2017/08/CA-Order-Trans-Ban.pdf/.

PLAINTIFFS’ MOTION FOR SUMMARY

2101 Fourth Avenue, Suite 1500

JUDGMENT - 11

NEWMAN DU WORS LLP

Seattle, Washington 98121

[2:17-cv-01297-MJP]

(206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 17 of 31

1 transgender people, which remains pervasive to this day. “As a class, transgender individuals

2 have suffered, and continue to suffer, severe persecution and discrimination.” Doe, 2017 WL

3 4873042, at *27. Transgender people experience “alarming rates” of harassment and physical

4 violence relative to the general population. See Newman Decl., Ex. 5. It is “common-sense

5 knowledge that transgender individuals face hostility and discrimination in our society.”

6 Brocksmith v. United States, 99 A.3d 690, 698 (D.C. 2014); see also Adkins v. City of New York,

7 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015). “There is no denying that transgender individuals

8 face discrimination, harassment, and violence because of their gender identity.” Whitaker, 858

9 F.3d at 1051.

10

Second, this longstanding discrimination is unrelated to transgender people’s ability to

11 contribute to society. See Doe, 2017 WL 4873042, at *27 (noting the absence of any “argument

12 or evidence suggesting that being transgender in any way limits one’s ability to contribute to

13 society”); Adkins, 143 F. Supp. 3d at 139 (“The Court is not aware of any data or argument

14 suggesting that a transgender person, simply by virtue of transgender status, is any less

15 productive than any other member of society.”); Brown Decl. ¶¶ 86-89. Because transgender

16 people satisfy the two considerations most important to the suspect nature of a classification,

17 government discrimination against transgender people should be subject to strict scrutiny.

18

While nothing more is needed, the third and fourth considerations militating in favor of

19 strict scrutiny are present here as well. “Transgender individuals have immutable and

20 distinguishing characteristics that make them a discernable class.” Doe, 2017 WL 4873042, at

21 *27; Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017) (“as a class

22 they exhibit immutable or distinguishing characteristics that define them as a discrete group”).

23 As evidenced by Plaintiffs’ expert testimony, gender identity is recognized as an immutable

24 characteristic. Brown Decl. ¶¶ 19-29; see also Norsworthy, 87 F. Supp. 3d at 1119 n.8 (gender

25 identity “equally immutable” as sexual orientation).

26

Finally, transgender people are also relatively politically powerless. Doe, 2017 WL

27 4873042, at *27 (“transgender people as a group represent a very small subset of society lacking

28 the sort of political power other groups might harness to protect themselves from

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 12 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 18 of 31

1 discrimination”); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F.

2 Supp. 3d 850, 874 (S.D. Ohio 2016) (“as a tiny minority of the population, whose members are

3 stigmatized for their gender non-conformity in a variety of settings, transgender people are a

4 politically powerless minority group”); Adkins, 143 F. Supp. 3d at 140 (“[T]ransgender people

5 lack the political strength to protect themselves.”). Because discrimination against transgender

6 people rings every alarm bell alerting courts to a suspect classification, the Ban should be subject

7 to strict scrutiny.

8

Import of Heightened Scrutiny. The application of any form of heightened scrutiny,

9 regardless of whether strict or intermediate, informs several aspects of the equal protection

10 analysis. First, the government bears the burden of justifying the discrimination at issue; it is not

11 the plaintiffs’ burden to demonstrate that the challenged action is unconstitutional. As the

12 Supreme Court has explained, “[t]he burden of justification is demanding and it rests entirely on

13 the State.” VMI, 518 U.S. at 533; Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151 (1980)

14 (“The burden . . . is on those defending the discrimination to make out the claimed

15 justification.”). The burden is allocated to the government because discrimination employing a

16 suspect or quasi-suspect classification comes with “a strong presumption” of invalidity. VMI,

17 518 U.S. at 332 (internal quotation marks omitted). Under intermediate scrutiny, the

18 government’s burden is to show that the challenged action bears a substantial relationship to

19 important government interests, whereas under strict scrutiny, the government must show that

20 the challenged action is narrowly tailored to compelling interests.

21

Second, under heightened scrutiny, the government is limited to the actual and “genuine”

22 justifications that motivated its action at the time; it cannot rely upon hypothetical or post hoc

23 justifications conceived after the fact. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1696-

24 97 (2017); VMI, 518 U.S. at 533 (“The justification must be genuine, not hypothesized or

25 invented post hoc in response to litigation.”); SmithKline Beecham Corp. v. Abbott Labs., 740

26 F.3d 471, 481-82 (9th Cir. 2014) (holding, under heightened scrutiny, that courts must scrutinize

27 the “actual purposes” at the time the discrimination was adopted rather than “hypothetical

28 justifications”); Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (“this test requires a

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 13 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 19 of 31

1 ‘genuine’ justification”). In other words, the government cannot rely upon “rationalizations for

2 actions in fact differently grounded” at the relevant time. VMI, 518 U.S. at 536.

3

Third, heightened scrutiny requires that the government “justify the harm imposed.”

4 SmithKline Beecham, 740 F.3d at 482 (observing that “words like harm or injury rarely appear”

5 in cases applying ordinary rational basis review but repeatedly appear in case law analyzing

6 sexual orientation discrimination, which requires heightened scrutiny). In evaluating the

7 government’s proffered justification, courts must also take into account the “resulting injury and

8 indignity” inflicted by the government’s discrimination, including “the imposition of a second-

9 class status,” which is “itself a harm of great constitutional significance.” Id. The gravity of the

10 irreparable harms at stake here supported this Court’s issuance of a preliminary injunction.

11

B. The Government Lacks Any Justification for the Sweeping Exclusion of

Transgender People from Military Service and the Deprivation of Medically

12

Necessary Care.

13

Under any level of scrutiny, there is no constitutionally adequate justification for the Ban.

14 Defendants “fail to show that the policy prohibiting transgender individuals from serving openly

15 is related to the achievement of” their alleged governmental interests. Order at 16. As this Court

16 recognized, the Ban is unsupported by even a rational basis, let alone the exceedingly persuasive

17 justification required under intermediate scrutiny. Order at 18 n.2; cf. Stone v. Trump, -- F. Supp.

18 3d --, 2017 WL 5589122, at *16 (D. Md. 2017) (holding that the Ban is “unlikely to survive a

19 rational review” because “[t]he lack of any justification for the abrupt policy change, combined

20 with the discriminatory impact to a group of our military service members who have served our

21 country capably and honorably, cannot possibly constitute a legitimate governmental interest”).

22 The D.C. Circuit similarly found that the Ban was likely unconstitutional because of its sheer

23 breadth; the unusual and abrupt circumstances of its announcement; the fact that the reasons

24 cited for the Ban were unsupported by any facts; and the recent rejection by the military of those

25 cited reasons. Doe 1 v. Trump, No. 17-5267, 2017 WL 6553389, at *1 (D.C. Cir. Dec. 22, 2017).

26

As discussed below, the government offers three justifications for the Ban: military

27 effectiveness, unit cohesion, and cost. Newman Decl., Ex. 2. However, “all of the reasons

28 proffered by the President for excluding transgender individuals from the military [are] not

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 14 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 20 of 31

1 merely unsupported, but [are] actually contradicted by the studies, conclusions, and judgment of

2 the military itself.” Order at 16 (quoting Doe, 2017 WL 4873042, at *30 (emphasis added)). The

3 thorough review and analysis previously conducted by the military belies each and every one of

4 the President’s proffered reasons for treating transgender people differently than others capable

5 of military service. See Mabus Decl. ¶ 40 (“President Trump’s stated rationales for reversing the

6 policy . . . have no basis in fact and are refuted by the comprehensive analysis of relevant data

7 and information that was carefully, thoroughly, and deliberately conducted by the Working

8 Group.”); James Decl. ¶¶ 11, 38 (Working Group considered “all available” evidence); Fanning

9 Decl. ¶ 55.

10

The Ban is a policy in search of a justification. “This would be a different case,” as the

11 district court in Doe explained, if President Trump had first undertaken a study of military policy

12 “and then decided that banning all transgender individuals from serving in the military was

13 beneficial to the various military objectives cited.” 2017 WL 4873042, at *32. But “[t]he Court

14 can only assess Plaintiffs’ equal protection claim based on the facts before it,” and “it appears

15 that the rights of a class of individuals were summarily and abruptly revoked for reasons contrary

16 to the only then-available studies.” Id. Indeed, “Defendants themselves highlight the absence of

17 any prior studies or evaluations supporting the proffered justifications by arguing that they must

18 now conduct studies regarding transgender military service before they can adequately defend

19 the President’s decision.” Id. at *29.

20

Because the Ban was adopted without any indication of “considered reason or

21 deliberation,” this Court also correctly held that the government’s attempt to invoke military

22 deference cannot shield the Ban from constitutional scrutiny or invalidation. Order at 17-18; cf.

23 Rostker v. Goldberg, 453 U.S. 57, 72 (1981) (recognizing that deference in military affairs would

24 not be warranted for acts undertaken “reflexively and not for any considered reason”) (internal

25 quotation marks omitted).

26

27

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 15 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 21 of 31

1. Barring Qualified Individuals From the Military Because They Are

1

Transgender Does Not Further Military Effectiveness.

2

3

First, there is no rational connection between the exclusion of transgender service

4 members and military effectiveness. Instead, as this Court recognized, “[n]ot only did the DoD

5 previously conclude that allowing transgender individuals to serve openly would not impact

6 military effectiveness and readiness,” it “concluded that prohibiting open service would have

7 negative impacts including loss of qualified personnel, erosion of unit cohesion, and erosion of

8 trust in command.” Order at 16.

9

Like all service members, transgender people who wish to serve must already “meet the

10 rigorous standards for military service and readiness.” Mabus Decl., Ex. C. The policy that

11 permitted transgender people to serve openly subjected them “to the same standards and

12 procedures as other members with regard to their medical fitness for duty, physical fitness,

13 uniform and grooming, deployability, and retention.” Id. Accordingly, the Ban excludes

14 individuals from serving merely because of their gender identity, despite being otherwise

15 qualified to serve. Turning away or discharging otherwise qualified individuals from service

16 reduces the pool of talent from which the military can draw to support an all-volunteer force.

17 Mabus Decl. ¶ 45; Fanning Decl. ¶ 57; James Decl. ¶¶ 40-41. This arbitrary exclusion of

18 individuals based on a characteristic with no relevance to their fitness to serve damages the

19 military’s interests. Carson Decl. ¶¶ 17, 26; Mabus Decl. ¶ 14; James Decl. ¶¶ 40-41.

20

The decades of honorable service that the Plaintiffs have collectively devoted to the

21 military illustrate the invaluable contributions of transgender people to our collective defense.

22 Indeed, many of the Plaintiffs are highly decorated as a result of this service. For example, in her

23 thirteen years of service, Staff Sergeant Schmid has earned three Commendation Medals and

24 three Achievement Medals. Schmid Decl. ¶ 15. Petty Officer Lewis has earned a dozen medals

25 for a wide variety of achievements. Lewis Decl. ¶ 7. Although President Trump has now publicly

26 branded them as “burden[s]” and “disruption[s]” within the military, Newman Decl., Ex. 1, their

27 records of service indisputably tell a different story. The military would suffer “an immediate

28 negative impact on readiness” by separating qualified transgender service members, who serve at

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 16 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 22 of 31

1 all levels. Mabus Decl. ¶¶ 18, 45; RAND Report at 46. Barring transgender people from

2 accession would also harm readiness by depriving the military of future talent.

3

There is no support for the fiction that being transgender is incompatible with military

4 service. Being transgender is not a mental disorder, and men and women who are transgender

5 have no impairment in their capabilities simply because of their transgender status. Brown Decl.

6 ¶ 24. The government also cannot justify the Ban’s sweeping exclusion of transgender people by

7 resorting to unsupported or overbroad generalizations about gender dysphoria, the fully treatable

8 distress that a subset of transgender people may experience, or gender transition, which forms

9 part of the medical treatment for gender dysphoria. Id. ¶¶ 25-27, 30-32; accord Order at 17

10 (rejecting the government’s cited concerns as “extremely overbroad” and noting that “all service

11 members might suffer from medical conditions that could impede performance”); VMI, 518 U.S.

12 at 533 (forbidding reliance “on overbroad generalizations about the different talents, capacities,

13 or preferences” of the excluded class). For example, under the accessions policy currently in

14 effect, transgender applicants must generally have already completed transition-related medical

15 treatment 18 months before joining the military. Mabus Decl., Ex. C.

16

For those who come to terms with their gender identity while serving, there is no basis

17 for singling out their health care needs for unequal treatment. This includes any “negligible”

18 short-term periods of deployment unavailability—particularly in comparison to the significantly

19 longer periods of deployment unavailability experienced by other active-duty soldiers for myriad

20 reasons. RAND Report at 46; Carson Decl. ¶ 22; Mabus Decl. ¶ 15; Fanning Decl. ¶ 18; James

21 Decl. ¶ 18; Brown Decl. ¶ 88. The RAND Report analyzed all available evidence and concluded

22 that the total impact of transition-related medical care would be a mere “0.0015 percent of

23 available deployable labor-years” across the entire force. RAND Report at 42; compare id. at 46

24 (fourteen percent of Army active component troops are non-deployable at any given time).

25 Foreign militaries with inclusive policies similarly report no reduced ability to serve from

26 transgender service members. Id. at 60-61.

27

“[I]t is common for service members to be non-deployable for periods of time due to an

28 array of [] conditions.” Order at 17. Pregnancy is one illustration of a medical condition that may

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 17 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 23 of 31

1 temporarily limit deployability—but the military does not authorize the presumptive discharge of

2 all service members who become pregnant, nor could it constitutionally do so. See Crawford v.

3 Cushman, 531 F.2d 1114, 1121-25 (2d Cir. 1976) (striking down a military regulation

4 implementing mandatory discharge for pregnant troops, because it lacked a rational relation to

5 the military objectives of mobility, readiness, and administrative convenience); see also Latta v.

6 Otter, 771 F.3d 456, 472 (9th Cir. 2014) (rejecting government’s proffered justification under

7 heightened scrutiny where it was “grossly over- and under-inclusive”); City of Cleburne v.

8 Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (same under rational basis review). There is, in

9 short, no medical justification for banning transgender people from military service.

10

Finally, the abrupt policy reversal represented by the Ban is an “enormous distraction”

11 and stressor to currently serving transgender troops, their chain of command, and their

12 colleagues—one that erodes force morale and trust in command and detracts from readiness.

13 Mabus Decl. ¶¶ 47-52; Fanning Decl. ¶¶ 58-61; James Decl. ¶¶ 43-47; Carson Decl. ¶¶ 33-36.

14 The policy “bait-and-switch” causes disruption that undermines military readiness and lethality.

15 Carson Decl. ¶ 33. It also tarnishes the military’s image and reputation as a meritocracy premised

16 on fairness and equality. That damages the military’s ability to attract talent, harming

17 effectiveness. Mabus Decl. ¶¶ 51-52.

18

2. Excluding Transgender People From Military Service Does Not

19

Promote Unit Cohesion.

20

Second, the Ban cannot be justified by unit cohesion. Notably, President Trump never

21 even cited unit cohesion in his July 26, 2017 statements, and the Presidential Memorandum also

22 fails to articulate the precise concern at issue. To the extent that the government seeks to give

23 legal effect to any private bias against transgender people, that is an illegitimate interest as a

24 matter of law. Witt v. Dep’t. of Air Force, 527 F.3d 806, 820 n.10 (9th Cir. 2008) (holding that

25 appeals to unit cohesion based on prejudice against lesbian and gay service members were

26 inconsistent with Supreme Court precedent that the law cannot give effect to private bias);

27 accord Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 18 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 24 of 31

1

In any event, the Ban does nothing to further unit cohesion and in fact undermines it.

2 After closely examining this issue, the military found no evidence that permitting open service

3 by transgender people would negatively impact unit cohesion. Mabus Decl. ¶ 14; James Decl. ¶

4 14; Fanning Decl. ¶ 24. For example, Secretary Mabus oversaw the Navy implementation of

5 open service for transgender service members, which “was relatively low-key, triggered few

6 emotional responses, and was viewed as ‘no big deal.’” Mabus Decl. ¶ 24. For more than a year

7 now, transgender service members have served openly without any adverse effect on cohesion.

8 Id. ¶ 43. Plaintiffs’ transgender status has not impeded their units from working together to

9 accomplish tasks. Muller Decl. ¶ 19; Schmid Decl. ¶ 17. Indeed, Plaintiffs’ experiences illustrate

10 that open service can promote unit cohesion, because requiring service members to hide parts of

11 their identity can weaken bonds among unit members. Schmid Decl. ¶¶ 14, 17; Stephens Decl.

12 ¶¶ 18, 30; see also Mabus Decl. ¶ 46; Decl. of Mark Eitelberg ¶¶ 13-14. This echoes the

13 experience of foreign militaries, which have improved cohesion through inclusive policies

14 toward transgender soldiers. Mabus Decl. ¶¶ 17, 42; Carson Decl. ¶ 19. The Ban thus “negatively

15 impacts unit cohesion.” Mabus Decl. ¶ 46.

16

Similar concerns about unit cohesion were raised as to women in combat positions, racial

17 integration, and open service by lesbian, gay, and bisexual service members—but in every case

18 those fears “proved to be unfounded.” Carson Decl. ¶ 19; Mabus Decl. ¶ 42; RAND Report at

19 44. And just as lesbian, gay, and bisexual soldiers should not have to lie about who they are in

20 order to serve, neither should transgender soldiers. Mullen Decl. ¶ 12.

21

3. Cost Savings from the Selective Withdrawal of Medically Necessary

22

Care for Transgender Service Members Cannot Justify the Ban.

23

Third, cost savings cannot support the Ban, whether as a justification for excluding

24 transgender people from military service or for denying them health care. Order at 17; Doe, 2017

25 WL 4873042, at *29. Like all other service members, transgender service members may have

26 needs requiring medically necessary care.4 But the Supreme Court has long made clear that cost

27
4 There is no genuine dispute that transition-related care such as surgery can be medically necessary, as the

28

military’s own medical staff have acknowledged in developing Plaintiffs’ transition plans. See, e.g., Stephens Decl. ¶ 15; Winters Decl. ¶ 30; see also RAND Report at x; Brown Decl. ¶¶ 33, 35; Dep’t of Health and Human Servs.,

PLAINTIFFS’ MOTION FOR SUMMARY

2101 Fourth Avenue, Suite 1500

JUDGMENT - 19

NEWMAN DU WORS LLP

Seattle, Washington 98121

[2:17-cv-01297-MJP]

(206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 25 of 31

1 savings alone cannot justify discrimination: the government cannot “protect the public fisc by

2 drawing an invidious distinction between classes” of persons. Mem. Hosp. v. Maricopa Cty., 415

3 U.S. 250, 263 (1974); see also Plyler v. Doe, 457 U.S. 202, 227 (1982) (“the preservation of

4 resources standing alone can hardly justify the classification used in allocating those resources”).

5

For example, courts have held that the government may not discriminate against

6 employees with same-sex partners by selectively depriving the latter of health care benefits—

7 even though there is no dispute that it would save money to do so. See Diaz v. Brewer, 656 F.3d

8 1008, 1014 (9th Cir. 2011) (holding that cost savings failed to supply a rational basis for the

9 government “distinguishing between homosexual and heterosexual employees, similarly

10 situated”); Bassett v. Snyder, 59 F. Supp. 837, 855 (E.D. Mich. 2014) (“cost savings alone are

11 insufficient to justify an otherwise discriminatory statute”).

12

Notably, the medical procedures targeted by the Ban are also already provided to other

13 service members for reasons unrelated to gender transition. RAND Report at 8; Brown Decl. ¶

14 61. Cost savings are legally inadequate to justify the selective withdrawal of medically necessary

15 care from transgender people. See Norsworthy, 87 F. Supp. 3d at 1120 (“treat[ing] [a transgender

16 person] differently from a similarly situated non-transgender [person] in need of medically

17 necessary surgery” is not substantially related to an important government interest).

18

Furthermore, this Court has already found that the costs of transition-related care are

19 “exceedingly minimal.” Order at 17. The RAND Report estimated that providing

20 transition-related care to active-duty service members would cost (at most) $8.4 million

21 annually, compared to the $49.3 billion spent on DoD health care in 2014. RAND Report at 36,

22 70. In other words, the costs of providing appropriate medical care amount to “budget dust,” and

23 “hardly even a rounding error, by military leadership.”5 Mabus Decl. ¶ 41. In addition, the

24 estimated cost of separating transgender service members and finding and training replacements

25

26 Dep’tl Appeals Board, NCD 140.3, Transsexual Surgery, No. A-13-87, 2014 WL 2558402 (May 30, 2014)
(invalidating Medicare’s exclusion of transition-related surgical care).

27 5 To put that into further perspective, the military’s estimated cost savings from a proposal to incentivize the use of
generic and mail order drugs is $16 million a year—approximately double the upper-range estimate of providing

28

transition-related care (both surgical and non-surgical) to service members. Newman Decl., Ex. 10 at 5. The military has also spent $84 million a year on medication to treat erectile dysfunction. Id., Ex. 9.

PLAINTIFFS’ MOTION FOR SUMMARY

2101 Fourth Avenue, Suite 1500

JUDGMENT - 20

NEWMAN DU WORS LLP

Seattle, Washington 98121

[2:17-cv-01297-MJP]

(206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 26 of 31

1 is $960 million—more than 100 times greater than the cost of providing medically necessary

2 care to transgender service members. Mabus Decl. ¶ 18; Carson Decl. ¶ 32. Indeed, the cost to

3 train and replace even a single soldier lost due to the Ban is $75,000. Carson Decl., Ex. A at 4.

4 II. 5

The Ban Violates Plaintiffs’ Substantive Due Process Right to Live in Accordance with Their Gender Identity Free From Government Intrusion.

6

Plaintiffs have likewise shown that the Ban violates a fundamental liberty interest to live

7 in accordance with one’s gender identity. As this Court recognized, the substantive guarantee of

8 the Fifth Amendment’s Due Process Clause protects “fundamental liberty interests in individual

9 dignity, autonomy, and privacy,” and Plaintiffs possess “the right to make decisions concerning

10 bodily integrity and self-definition central to an individual’s identity.” Order at 18 (citing

11 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)).

12

Gender identity is both immutable and “so fundamental to one’s identity that a person

13 should not be required to abandon [it].” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th

14 Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir.

15 2005); Brown Decl. ¶¶ 19-29. Because “the ability independently to define one’s identity [] is

16 central to any concept of liberty,” it warrants “a substantial measure of sanctuary from

17 unjustified interference by the State.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618-19 (1984). The

18 government may not penalize Plaintiffs for living in accord with their gender identity, which is

19 integral to their understanding of themselves as the men and women that they are—just as gender

20 is an essential aspect of identity for those who are not transgender. Courts have guarded against

21 government encroachment upon fundamental liberty interests, including when the military

22 penalized service members for forming intimate relationships with same-sex partners, Witt, 527

23 F.3d at 814-21, or for exercising the right to have children, Crawford, 531 F.2d at 1125.

24

There is no question that the Ban “directly interferes with Plaintiffs’ ability to define and

25 express their gender identity, and penalizes Plaintiffs for exercising their fundamental right to do

26 so openly.” Order at 19. That direct interference triggers heightened scrutiny: Defendants must

27 show that the Ban is “necessary” to further an important government interest at a minimum, Witt,

28 527 F.3d at 819, but they cannot do so, particularly given the Ban’s sweeping breadth. For the

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 21 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 27 of 31

1 same reasons that the Ban fails any level of scrutiny under equal protection, it is likewise

2 unconstitutional under due process.

3 III. The Ban’s Prohibition Against Openly Transgender Service Members Violates

4

Plaintiffs’ First Amendment Right to Express Their Gender Identity.

5

Plaintiffs have also shown that the Ban violates their First Amendment rights. On its face,

6 the Ban “prohibit[s] openly transgender individuals from accession into the United States

7 military and authorize[s] the discharge of such individuals,” reversing the prior policy

8 “permitting transgender individuals to serve openly.” Newman Decl., Ex. 2 (emphases added).

9 President Trump regards openly transgender service members to be “disruption[s].” Id., Ex. 1.

10 This Court recognized that the Ban constitutes a content-based regulation of speech, because it

11 “penalizes transgender service members—but not others—for disclosing their gender identity”

12 and thus requires, but fails, heightened scrutiny under the First Amendment. Order at 19-20.

13

The Ban employs a form of content discrimination that is especially noxious to the First

14 Amendment: viewpoint discrimination. See Rosenberger v. Rector & Visitors of Univ. of Va.,

15 515 U.S. 819, 829 (1995) (explaining that viewpoint discrimination represents “an egregious

16 form of content discrimination”). Viewpoint discrimination occurs where “the government

17 prohibits speech by particular speakers, thereby suppressing a particular view about a subject.”

18 Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001) (internal quotation marks omitted).

19 Under the Ban, non-transgender service members are free to express their gender identity, but

20 transgender service members are not. For example, the government will permit Plaintiff Jane

21 Doe to express that she is a man (even though that is incorrect), but it will not permit her to

22 express that she is a woman.

23

That restriction has significant practical repercussions: it bars transgender service

24 members from openly advocating for their own equal treatment and from powerfully

25 demonstrating, by personal example, the value of open service. By deterring transgender people

26 from “coming out,” the Ban disables a critical tool for transgender people to advocate for

27 themselves, dismantle stereotypes, and counteract discrimination. Cf. Henkle v. Gregory, 150 F.

28 Supp. 2d 1067, 1075 (D. Nev. 2001) (holding that student speech disclosing sexual orientation

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 22 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 28 of 31

1 was constitutionally protected by First Amendment); Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d

2 1279, 1284-85 (D. Utah 1998) (coming out as lesbian to employer protected by First

3 Amendment); Gay Students Org. of Univ. of N.H. v. Bonner, 509 F.2d 652, 661 (1st. Cir. 1974)

4 (explaining that a gay student organization sought to convey a basic message: “that homosexuals

5 exist, that they feel repressed by existing laws and attitudes, that they wish to emerge from their

6 isolation, and that public understanding of their attitudes and problems is desirable for society”).

7

Because of the unique harms imposed by viewpoint discrimination, it is subject to strict

8 scrutiny, including in the military context. Notwithstanding any deference that may otherwise be

9 afforded to the military in appropriate circumstances, “regulations restricting speech on military

10 installations may not discriminate against speech based on its viewpoint.” Nieto v. Flatau, 715 F.

11 Supp. 2d 650, 655 (E.D.N.C. 2010). The government may not “selectively grant[] safe passage to

12 speech of which [officials] approve while curbing speech of which they disapprove . . . even in

13 the military.” Id. (internal quotation marks omitted).

14

As this Court recognized, the Ban does not survive any level of First Amendment

15 scrutiny, even if Defendants were afforded the benefit of a more deferential standard for content-

16 based (but viewpoint-neutral) restrictions on speech in the military context. Order at 20. There is

17 no rational, important, or compelling governmental interest in prohibiting transgender people

18 from disclosing and expressing their gender identity. To the contrary, Plaintiffs have shown that

19 the Ban chills a wide swath of speech by transgender service members that is essential to

20 building trust and cohesion, as discussed above. Cf. Log Cabin Republicans v. United States, 716

21 F. Supp. 2d 884, 927 (C.D. Cal. 2010) (holding that “Don’t Ask, Don’t Tell” imposed a

22 restriction on speech “far greater than necessary to protect the Government’s [purported]

23 interests”), vacated on other grounds, 658 F.3d 1162 (9th Cir. 2011). The government’s attempt

24 to force transgender people to once again serve in silence violates the First Amendment.

25

CONCLUSION

26

The Ban is unsupported by any constitutionally adequate government interest as a matter

27 of law—and indulging the fiction that there is even a reasonable dispute to the contrary would

28 only lend credibility to the government’s defense premised on the inferiority of transgender

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 23 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 29 of 31

1 people, thereby widening and deepening the profound harms that the Ban has already wrought.

2 The lives of Plaintiffs and many others have been turned upside down because of President

3 Trump’s actions; the only way for them to regain the security necessary to move forward with

4 their lives is through the conclusive invalidation of the Ban.

5

Plaintiffs thus respectfully request that this Court enter summary judgment in their favor,

6 issue declaratory relief holding the Ban unconstitutional, and permanently enjoin Defendants and

7 those acting in concert with them or subject to their control from taking any action relative to

8 transgender individuals that is inconsistent with the status quo that existed on July 25, 2017,

9 prior to the Ban.

10

11 Respectfully submitted January 25, 2018. 12 13 14 15 16 17

NEWMAN DU WORS LLP
_________________________ Derek A. Newman, WSBA #26967 dn@newmanlaw.com Samantha Everett, WSBA #47533 samantha@newmanlaw.com 2101 Fourth Ave., Ste. 1500 Seattle, WA 98121 (206) 274-2800

18

LAMDBA LEGAL DEFENSE AND EDUCATION

FUND, INC.

19

Tara Borelli, WSBA #36759

20

tborelli@lambdalegal.org Camilla B. Taylor (admitted pro hac vice)

21

Peter C. Renn (admitted pro hac vice)

Natalie Nardecchia (admitted pro hac vice)

22

Sasha Buchert (admitted pro hac vice)

Kara Ingelhart (admitted pro hac vice)

23

Carl Charles (admitted pro hac vice)

24

OUTSERVE-SLDN, INC.

25

Peter Perkowski (admitted pro hac vice)

26 27 28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 24 [2:17-cv-01297-MJP]

KIRKLAND & ELLIS LLP James F. Hurst, P.C. (admitted pro hac vice) Jordan M. Heinz (admitted pro hac vice) Scott Lerner (admitted pro hac vice)

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 30 of 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 25 [2:17-cv-01297-MJP]

Vanessa Barsanti (admitted pro hac vice) Daniel I. Siegfried (admitted pro hac vice) Ben Tyson (admitted pro hac vice)
Attorneys for Plaintiffs

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 129 Filed 01/25/18 Page 31 of 31

1

CERTIFICATE OF SERVICE

2

The undersigned certifies under penalty of perjury under the laws of the United States of

3 America and the laws of the State of Washington that all participants in the case are registered

4 CM/ECF users and that service of the foregoing documents will be accomplished by the

5 CM/ECF system on January 25, 2018.

6

7

8

Derek A. Newman, WSBA #26967

dn@newmanlaw.com

9

Newman Du Wors LLP

2101 Fourth Ave., Ste. 1500

10

Seattle, WA 98121

11

(206) 274-2800

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 26 [2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

 
 Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 1 of 25

1 The Honorable Marsha J. Pechman
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

RYAN KARNOSKI, et al,

Case No: 2:17-cv-1297-MJP

10

Plaintiffs,

11

v.

12

WASHINGTON’S MOTION

DONALD TRUMP, et al,

FOR SUMMARY JUDGMENT

13

Defendants.

Noted for February 16, 2018

14

ORAL ARGUMENT

15 STATE OF WASHINGTON,

REQUESTED

16

Intervenor-Plaintiff,

17

v.

18 DONALD TRUMP, et al,

19

Intervenor-Defendants.

20

21

22

23

24

25

26

WASHINGTON’S MOTION FOR SUMMARY JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 2 of 25

1

TABLE OF CONTENTS

2 I. INTRODUCTION............................................................................................................. 1

3 II. STATEMENT OF UNDISPUTED MATERIAL FACTS................................................ 1

4

A. Defendants Implement the Transgender Military Service Ban ................................. 2

5

B. Washington Sues to Vindicate Its Interests ............................................................... 4

6

C. The Ban Is Enjoined by this Court and Others .......................................................... 5

7 III. ARGUMENT .................................................................................................................... 7

8

A. Summary Judgment Standard .................................................................................... 7

9

B. The Ban Violates Equal Protection............................................................................ 8

10

1. Military readiness and cost control can be important governmental

interests, but must be established by evidence ................................................... 9

11

2. There is no substantial relationship between the Ban and the asserted

12

governmental interests...................................................................................... 10

13

a. The Ban undermines the asserted governmental interests in

readiness, unit cohesion, and cost control................................................. 10

14

b. A promise of future justification is insufficient to satisfy

15

intermediate scrutiny................................................................................. 12

16

c. “Military deference” is no substitute for constitutional tailoring ............. 13

17

C. The Ban Violates Substantive Due Process.............................................................. 15

18

1. There is no evidence that the Ban improves military readiness or cost

control............................................................................................................... 16

19

2. The Ban does not significantly further the alleged governmental interests

20

at issue .............................................................................................................. 17

21

3. The Ban is not the least intrusive means by which Defendants can protect

the asserted governmental interests.................................................................. 17

22

IV. CONCLUSION ............................................................................................................... 19

23

24

25

26

WASHINGTON’S MOTION FOR SUMMARY

i

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 3 of 25

1

TABLE OF AUTHORITIES

2

Cases

3 Abbott v. Abbott, 560 U.S. 1 (2010)........................................................................................... 16

4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................ 7

5 Aptheker v. Sec’y of State, 378 U.S. 500 (1964)........................................................................ 18

6 Ball v. Massanari, 254 F.3d 817 (9th Cir. 2001)......................................................................... 8

7 Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179 (9th Cir. 1988) .......................................... 7

8 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................ 7

9 Collins v. Harker Heights, 503 U.S. 115 (1992) ....................................................................... 16

10 Dep’t of Navy v. Egan, 484 U.S. 518 (1988) ............................................................................. 14

11 Doe 1 v. Trump, No. 17-1597, 2017 WL 4873042 (D.D.C. Oct. 30, 2017) .................... 6, 12, 15

12 Doe 1 v. Trump, 17-cv-01597-CKK (D.D.C. Aug. 9, 2017) ....................................................... 6

13 Doe 1 v. Trump, No. 17-5267, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017) ........................... 6

14 Eisenstadt v. Baird, 405 U.S. 438 (1972) .................................................................................. 16

15 FTC v. Publishing Clearing House, Inc., 104 F.3d 1168 (9th Cir. 1997) ................................... 7

16 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ...................................................................... 8

17 Goldman v. Weinberger, 475 U.S. 503 (1986) .......................................................................... 14

18 Griswold v. Connecticut, 381 U.S. 479 (1965).......................................................................... 16

19 Hansen v. United States, 7 F.3d 137 (9th Cir. 1993)................................................................... 7

20 Karnoski v. Trump, No. 17-36009 (9th Cir. Dec. 15, 2017)........................................................ 6

21 Lawrence v. Texas, 539 U.S. 558 (2003)................................................................................... 16

22 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) .............................................. 8, 9, 10, 11

23 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)................................................................. 9, 15, 16

24 Orr v. Bank of Am., NT & SA, 285 F.3d 764 (9th Cir. 2002) ...................................................... 7

25 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).................................................................... 8

26

WASHINGTON’S MOTION FOR SUMMARY

ii

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 4 of 25

1 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........................................................................... 16

2 Rostker v. Goldberg, 453 U.S. 57 (1981) ............................................................................ 13, 14

3 Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) .................................................................. 8

4 Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017)..................................................... 8, 10, 12

5 Snyder v. Massachusetts, 291 U.S. 97 (1934) ........................................................................... 16

6 Stockman v. Trump, No. 5:17-cv-1799-JGB (C.D. Cal. Sept. 5, 2017)................................. 6, 12

7 Stone v. Trump, No. MJG-17-2459, 2017 WL 5589122 (D. Md. Aug. 28, 2017) .......... 6, 10, 12

8 Stone v. Trump, No. 17-2398 (4th Cir. Dec. 6, 2017).................................................................. 6

9 United States v. Virginia, 518 U.S. 515 (1996) ........................................................... 8, 9, 12, 13

10 United States v. Windsor, 133 S. Ct. 2675 (2013) ....................................................................... 8

11 Washington v. Glucksberg, 521 U.S. 702 (1997) ...................................................................... 16

12 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ............................................................. 9, 17

13 Whitaker v. Kenosha Unified Sch. Dist. No. 1, 858 F.3d 1034 (7th Cir. 2017)........................... 8

14 Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir. 2008) ............................................. passim

15

Statutes

16 10 U.S.C. § 12201(b) ................................................................................................................... 4

17 Wash. Rev. Code § 38.04.010 ..................................................................................................... 4

18 Wash. Rev. Code § 38.04.040 ..................................................................................................... 4

19 Wash. Rev. Code § 38.08.010 ..................................................................................................... 4

20 Wash. Rev. Code § 38.24.050 ..................................................................................................... 4

21 Wash. Rev. Code § 49.60.030 ..................................................................................................... 5

22 Wash. Rev. Code § 49.60.040(25)-(26)....................................................................................... 5

23 Wash. Rev. Code § 49.60.180 ..................................................................................................... 5

24

Other Authorities

25 Department of Defense Instruction 6130.03 http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/613003p.pdf.................... 19
26

WASHINGTON’S MOTION FOR SUMMARY

iii

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 5 of 25

1 Department of Defense Instruction 6490.03 http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/649003p.pdf.................... 19
2 Rules
3 Fed. R. Civ. P. 56......................................................................................................................... 7
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

WASHINGTON’S MOTION FOR SUMMARY

iv

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 6 of 25

1 I. INTRODUCTION
2 In the six months since President Trump issued a string of surprise tweets announcing
3 the Transgender Military Service Ban (“Ban”), the federal government and its officers
4 (“Defendants”) have failed to produce any evidence that justified the President’s sweeping,
5 facially discriminatory announcement. Since then, this Court and others have enjoined the Ban,
6 concluding that it is unconstitutional and wholly at odds with the very military goals it claims to
7 advance. Defendants have appealed none of those injunctions, apparently hoping that new
8 reports or analyses might someday backfill the missing evidence. But the die was cast with the
9 President’s Twitter announcement.
10 The State of Washington (“Washington”) now moves for summary judgment on its two
11 constitutional claims. Defendants’ own public statements and evidence demonstrate that the Ban
12 violates equal protection because the classification based on transgender status bears no
13 relationship – let alone a substantial relationship – to any important governmental objective.
14 Likewise, the Ban violates substantive due process because Defendants offer no explanation why
15 a categorical prohibition based on gender identity, rather than an assessment of each soldier or
16 recruit on his or her merits, is necessary to further the military’s goals of readiness, unit cohesion,
17 or cost control.
18 From the start, the Ban was an indefensible policy in search of a justification. There was
19 no evidence to support the President’s policy at the time he announced it, and no amount of post-
20 hoc maneuvering can change that. The Court should credit the government’s own multi-year
21 studies and conclusions showing that a ban on transgender service members and recruits actually
22 harms the military, and grant summary judgment in favor of the State.
23 II. STATEMENT OF UNDISPUTED MATERIAL FACTS
24 The following undisputed facts are taken from this Court’s prior rulings and Defendants’
25 evidence, briefing, and public statements.
26

WASHINGTON’S MOTION FOR SUMMARY

1

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 7 of 25

1 A. Defendants Implement the Transgender Military Service Ban

2

The United States Military has long maintained a facially discriminatory policy barring

3 transgender individuals from openly serving and acceding into military service. ECF 34-1; ECF

4 69 at 4.

5

In July 2015, former Secretary of Defense Ashton Carter created a Working Group “to

6 study . . . the policy and readiness implications of welcoming transgender persons to serve

7 openly.” ECF 48-1. The Working Group considered medical, military, and personnel experts’

8 advice, and Department of Defense (“DoD”) commissioned a civilian research group, the RAND

9 Corporation, to assess how open service by transgender individuals would impact the military’s

10 effectiveness and readiness. ECF 103 at 4 (citing ECF 30 ¶ 161; ECF 46 ¶ 10); ECF 46-2; ECF

11 34-1 at 5-6. The RAND study “concluded that allowing transgender individuals to serve would

12 not negatively impact military effectiveness, readiness, or unit cohesion, and that the costs of

13 providing transgender service members with transition-related healthcare would be ‘exceedingly

14 small’ compared with DoD’s overall healthcare expenditures.” ECF 103 at 4; ECF 46-2 at 90-

15 93.

16

After reviewing the recommendations of the Working Group and the RAND

17 Corporation’s findings, on June 30, 2016, Secretary Carter issued a directive allowing

18 transgender individuals currently serving in the military to do so openly. ECF 48-3. Secretary

19 Carter also directed the military to allow transgender individuals to accede into the military

20 beginning July 1, 2017. Id. On June 30, 2017, Secretary of Defense James Mattis extended the

21 date for accepting transgender recruits to January 1, 2018. ECF 34-3.

22

On July 26, 2017, President Trump reversed this policy. ECF 103 at 3. In a series of

23 statements on Twitter, the President announced that he would no longer allow “transgender

24 individuals to serve in any capacity in the U.S. military.” Id. (citing ECF 34-6).

25

One month later, on August 25, 2017, President Trump issued a Presidential

26 Memorandum directing the Secretaries of Defense and Homeland Security “to ‘return’ to the

WASHINGTON’S MOTION FOR SUMMARY

2

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 8 of 25

1 military’s policy authorizing the discharge of openly transgender individuals (the ‘Retention

2 Directive’); to prohibit the accession (bringing into service) of openly transgender individuals

3 (the ‘Accession Directive’); and to prohibit the funding of certain surgical procedures for

4 transgender service members (the ‘Medical Care Directive’).” ECF 103 at 3; ECF 34-7 §§ 1(b),

5 2(a)-(b). The Accession Directive was scheduled to take effect on January 1, 2018, and the

6 Retention and Medical Care Directives were ordered to take effect on March 23, 2018. Id. § 3.

7 The President directed the Secretary of Defense to develop a plan for implementing the directive,

8 which is to remain in place indefinitely. Id. §§ 2-3.

9

President Trump’s Memorandum stated his belief that the Ban is necessary because, “[i]n

10 [his] judgment, the previous Administration failed to identify a sufficient basis to conclude that

11 terminating the Departments’ longstanding policy and practice would not hinder military

12 effectiveness and lethality, disrupt unit cohesion, or tax military resources.” ECF 34-7 § 1(a).

13 However, the Memorandum cited no study, report, or other evidence to support the President’s

14 assertion.

15

Pursuant to the President’s instructions, on September 14, 2017, Secretary Mattis issued

16 Interim Guidance regarding military service by transgender individuals. ECF 69-1. The Interim

17 Guidance confirms that Secretary Mattis will “implement the policy and directives in the

18 Presidential Memorandum,” including reverting the military back to its longstanding accession

19 policy “which generally prohibit[s] the accession of transgender individuals into the Military

20 Services[.]” Id. at 2-3. The Interim Guidance, pending the issuance of the Secretary’s report and

21 plan, due February 21, 2018, directs military leadership to take “no action” to involuntarily

22 separate or discharge an active military member solely on the basis that they are transgender. Id.

23 The Interim Guidance further confirms that “no new sex reassignment surgical procedures for

24 military personnel will be permitted after March 22, 2018.” Id. Other than the Presidential

25 Memorandum, the Interim Guidance cited no basis for the changes in military policy.

26

WASHINGTON’S MOTION FOR SUMMARY

3

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 9 of 25

1 B. Washington Sues to Vindicate Its Interests

2

Three days after President Trump issued the Presidential Memorandum, the Karnoski

3 plaintiffs filed this lawsuit. ECF 1. Washington moved to intervene, alleging the Ban violates

4 the equal protection and substantive due process guarantees of the Fifth Amendment, causing

5 harm to Washington’s unique state interests. ECF 55; ECF 104 ¶¶.

6

The Court granted Washington’s motion, explaining, “Washington is home to

7 approximately 60,000 active, reserve, and National Guard members, and the military is the

8 second largest public employer in the state.” ECF 101 at 5. This includes the Washington

9 National Guard, which is comprised of military service members who assist with emergency

10 preparedness, disaster recovery planning, and who are deployed to protect Washington’s natural

11 resources from wildfires, landslides, flooding, and earthquakes. Id.; ECF 103 at 11. These Guard

12 members are dedicated to safeguarding lives, property, and the economy of Washington State.

13 Id.

14

The Governor has the authority to deploy the Washington National Guard for intrastate

15 emergencies. Wash. Rev. Code §§ 38.04.010; 38.04.040. When the Governor deploys the Guard

16 for state service (“State Active Duty”), Guard members fall under Washington’s command.

17 During State Active Duty, Washington pays Guard members’ wages and provides disability and

18 life insurance benefits for injuries they may sustain while serving their state. Wash. Rev. Code

19 § 38.24.050; ECF 101 at 5; ECF 103 at 11-12. Further, the Governor has an obligation to ensure

20 that the National Guard conforms to all federal and state laws and regulations, including the state

21 and federal constitutions. Wash. Rev. Code § 38.08.010. However, recruitment for the

22 Washington National Guard is subject to DoD policies governing accession into military service,

23 including the Accession Directive. 10 U.S.C. § 12201(b).

24

Washington is also home to approximately 32,850 transgender adults. ECF 103 at 11.

25 Washington state law protects its residents against sex, gender, and gender identity

26

WASHINGTON’S MOTION FOR SUMMARY

4

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 10 of 25

1 discrimination, including in employment. See Wash. Rev. Code §§ 49.60.030; 49.60.040(25)-

2 (26); 49.60.180.

3 C. 4

The Ban Is Enjoined by this Court and Others The Karnoski plaintiffs moved for a preliminary injunction, arguing that the Ban violates

5 their constitutional rights to equal protection, due process, and free speech. ECF 32. Washington

6 joined the motion. ECF 97. On December 11, 2017, the Court enjoined Defendants “from taking

7 any action relative to transgender individuals that is inconsistent with the status quo that existed

8 prior to President Trump’s July 26, 2017 announcement.” ECF 103 at 23. The Court concluded

9 that the plaintiffs established a likelihood of success on their equal protection, substantive due

10 process, and First Amendment claims. Id. at 15-20. The Court further concluded that the

11 remaining injunctive factors – irreparable harm, the balance of equities, and the public interest

12 – weighed in favor of preliminary relief. Id. at 20-22.

13

With respect to Washington specifically, the Court ruled that Washington has standing

14 to challenge the Ban’s harms to its ability to recruit and retain members of the Washington

15 National Guard, protect its territory and natural resources, maintain and enforce its anti-

16 discrimination laws, protect its residents from discrimination, and ensure that employment

17 opportunities in the state are not unlawfully restricted based on gender identity. ECF 103 at 11-

18 12. In granting preliminary injunctive relief, the Court determined that the Ban irreparably harms

19 Washington’s sovereign and quasi-sovereign interests by forcing it “to expend its scarce

20 resources to support a discriminatory policy when it provides funding or deploys the National

21 Guard,” and by threatening “its ability to recruit and retain service personnel for the Washington

22 National Guard.” ECF 103 at 21.

23

On December 15, 2017, Defendants sought clarification and a partial stay of the

24 injunction against the Accession Directive, ECF 106, and simultaneously appealed the

25 preliminary injunction, ECF 105. Defendants then filed an Emergency Motion for

26 Administrative Stay and Motion for Stay Pending Appeal before the Ninth Circuit. Karnoski v.

WASHINGTON’S MOTION FOR SUMMARY

5

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 11 of 25

1 Trump, No. 17-36009 (9th Cir. Dec. 15, 2017), ECF 3-1. After expedited briefing, but before

2 their emergency motion or appeal was heard, Defendants withdrew both. Notice of Withdrawal

3 of Emergency Stay Motion, Karnoski, No. 17-36009 (9th Cir. Dec. 29, 2017), ECF 20; Notice

4 of Voluntary Dismissal of Appeal, Karnoski, No. 17-36009 (9th Cir. Dec. 29, 2017), ECF 21.

5 This Court denied Defendants’ motion for clarification and partial stay. ECF 121.

6

Three other district courts also issued injunctions against the Ban. On October 30, 2017,

7 the District Court for the District of Columbia issued an order barring Defendants from

8 implementing the Accession and Retention Directives. Doe 1 v. Trump, No. 17-1597, 2017 WL

9 4873042, at *33 (D.D.C. Oct. 30, 2017). The District Courts of Maryland and Central District

10 of California enjoined the Accession, Retention, and Medical Care Directives. Stone v. Trump,

11 No. MJG-17-2459, 2017 WL 5589122, at *16 (D. Md. Nov. 21, 2017); Order Denying

12 Defendants’ Motion to Dismiss and Granting Plaintiffs’ Motion for Preliminary Injunction at 21,

13 Stockman v. Trump, No. 5:17-cv-1799-JGB (C.D. Cal. Dec. 22, 2017), ECF 79. In three of these

14 cases, including this one, Defendants repeated the same pattern of filing emergency motions and

15 appeals. All were either denied or withdrawn. Order, Doe 1, No. 17-cv-01597-CKK (D.D.C.

16 Dec. 11, 2017), ECF 75; Doe 1 v. Trump, No. 17-5267, 2017 WL 6553389, at *2 (D.C. Cir. Dec.

17 22, 2017); Memorandum & Order RE: Clarification, Stone, No. MJG-17-2459 (D. Md. Dec. 28,

18 2017), ECF 101; Order, Stone v. Trump, No. 17-2398 (4th Cir. Dec. 31, 2017), ECF 31.

19

In the midst of this litigation, on December 8, 2017, DoD issued Policy Memorandum 2-

20 5, titled “Transgender Applicant Processing.” ECF 120-1. The policy was DoD’s directive and

21 guide for acceding transgender individuals into the military starting January 1, 2018. Id. Policy

22 Memorandum 2-5 sets forth specific guidance regarding the processing of transgender applicants

23 to all personnel and staff at USMEPCOM, the command unit whose mission is to determine “the

24 physical, mental and moral qualifications of every new member of the armed services.”1 Policy

25

26

1 U.S. Military Entrance Processing Command, “Freedom’s Front Door,” available at http://www.mepcom.army.mil/Command/.

WASHINGTON’S MOTION FOR SUMMARY

6

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 12 of 25

1 Memorandum 2-5 provides the standard for processing transgender applicants and evaluating

2 their applications, including verifying identity and fitness to serve. ECF 102-1. Among other

3 things, the policy instructs USMEPCOM personnel to indicate an applicant’s preferred gender

4 on official forms; verify an applicant’s preferred gender using a birth certificate, court order, or

5 U.S. passport; address applicants by their preferred gender name and pronoun; allow the

6 applicant or medical provider to request a chaperone at any time; and ensure “the gender of the

7 chaperone . . . be the same as the applicant’s preferred gender.” Id. at 4. On January 1, 2018, for

8 the first time, openly transgender individuals were allowed to access into the United States

9 Military.

10

III. ARGUMENT

11 A. Summary Judgment Standard

12

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted

13 “if the movant shows that there is no genuine dispute as to any material fact and the movant is

14 entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322

15 (1986). A trial court may only consider admissible evidence in ruling on a motion for summary

16 judgment. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ.

17 P. 56(e)); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). “The mere

18 existence of a scintilla of evidence in support of the [opponent’s] position will be insufficient [to

19 defeat summary judgment]; there must be evidence on which the [trier of fact] could reasonably

20 find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

21 Here, to avoid summary judgment, Defendants must submit evidence to support their claimed

22 justifications for the Ban, because conclusory allegations without factual support are insufficient

23 to defeat summary judgment. FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.

24 1997) (citing Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993)). As there are no material

25 disputed facts about President Trump’s implementation of the Ban, summary judgment is

26 appropriate at this early stage of litigation.

WASHINGTON’S MOTION FOR SUMMARY

7

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 13 of 25

1 B. The Ban Violates Equal Protection

2

The equal protection guarantee of the Fifth Amendment prohibits federal government

3 action “denying to any person the equal protection of the laws.” United States v. Windsor, 133

4 S. Ct. 2675, 2695 (2013).

5

Following longstanding equal protection jurisprudence, this Court previously concluded

6 that the Ban “distinguishes on the basis of transgender status, a quasi-suspect classification, and

7 is therefore subject to intermediate scrutiny.” ECF 103 at 15 (citing Ball v. Massanari, 254 F.3d

8 817, 823 (9th Cir. 2001)). In arriving at this conclusion, the Court followed clear precedent that

9 gender discrimination, including discrimination based on a “socially-constructed gender

10 expectation,” is a form of sex discrimination. Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th

11 Cir. 2000) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989)). See also Miss. Univ.

12 for Women v. Hogan, 458 U.S. 718, 724-25 (1982) (holding unconstitutional statute whose

13 “objective itself reflects archaic and stereotypic notions”); United States v. Virginia, 518 U.S.

14 515, 533 (1996) (sex classifications may not serve as “artificial constraints on an individual’s

15 opportunity”); Whitaker v. Kenosha Unified Sch. Dist. No. 1, 858 F.3d 1034, 1048 (7th Cir.

16 2017) (holding that sex discrimination includes discrimination against a transgender person for

17 failure to “conform to the sex-based stereotypes of the sex that he or she was assigned at birth”);

18 Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (holding that “discrimination against a

19 transgender individual because of her gender-nonconformity is sex discrimination”).

20

To survive intermediate scrutiny, Defendants must show an “exceedingly persuasive

21 justification” for the Ban by proving that (1) it serves “important governmental objectives,” and

22 (2) “the discriminatory means employed are substantially related to the achievement of those

23 objectives.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1690 (2017) (quoting Virginia, 518

24 U.S. at 533). “[T]he classification must substantially serve an important governmental interest

25 today, for ‘in interpreting the equal protection guarantee, we have recognized that new insights

26 and societal understandings can reveal unjustified inequality that once passed unnoticed and

WASHINGTON’S MOTION FOR SUMMARY

8

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 14 of 25

1 unchallenged.’” Id. at 1690 (internal brackets and punctuation omitted) (quoting Obergefell v.

2 Hodges, 135 S. Ct. 2584, 2603 (2015)). In applying this straightforward test, “[c]are must be

3 taken in ascertaining whether the . . . [government’s] objective itself reflects archaic and

4 stereotypic notions.” Hogan, 458 U.S. at 724.

5

1. Military readiness and cost control can be important governmental

6

interests, but must be established by evidence

Defendants claim that the Ban is necessary to ensure that open military service by 7

transgender individuals does not “hinder military effectiveness and lethality, disrupt unit 8

cohesion, or tax military resources.” ECF 56-1. However, while courts have consistently held 9

that these interests are important, Defendants must provide more than bald assertions that these 10

interests are at risk. See Witt v. Dep’t of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008) 11

(accepting that “unit cohesion” may be an important governmental interest, but remanding for 12

determination whether that interest was actually implicated by the facts); Watkins v. U.S. Army, 13

875 F.2d 699, 709 (9th Cir. 1989) (rejecting military’s attempt to bar an exemplary gay soldier 14

from reenlistment where “no evidence” supported military’s concerns of a “degrading effect 15

upon unit performance, morale or discipline . . . and job performance”). Indeed, assertions of a 16

governmental interest made without any citation to an evidentiary basis that the interest is 17

threatened may lead to the opposite conclusion – that the interest is not, in fact, threatened. See 18

e.g., Virginia, 518 U.S. at 535-36 (affirming that “precedent instructs that ‘benign’ justifications 19

proffered in defense of categorical exclusions will not be accepted automatically; a tenable 20

justification must describe actual state purposes, not rationalizations for actions in fact 21

differently grounded”); Stone, 2017 WL 5589122, at *15 (rejecting the asserted interests for the 22

Ban because “President Trump’s tweets did not emerge from a policy review, nor did the 23

Presidential Memorandum identify any policymaking process or evidence” that supported it). 24

Defendants have simply presented no evidence whatsoever that military readiness and 25

unit cohesion are actually put at risk by open service by transgender service members. The Ban 26

WASHINGTON’S MOTION FOR SUMMARY

9

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 15 of 25

1 fails the first prong of intermediate scrutiny, and the Court should grant summary judgment to

2 Washington on its equal protection claim.

3

2. There is no substantial relationship between the Ban and the asserted

governmental interests

4 Even apart from whether the Ban furthers important governmental interests, Defendants

5 must show a substantial relationship between the Ban and their military goals. Morales-Santana,

6 137 S. Ct. at 1690. Defendants fall dramatically short. The government’s own evidence

7 demonstrates that the Ban undermines – not furthers – military readiness and unit cohesion. And,

8 as a matter of law, there can be no substantial relationship between the Ban and the asserted

9 governmental interests when all of Defendants’ justifications were developed post-hoc.

10

a. The Ban undermines the asserted governmental interests in

readiness, unit cohesion, and cost control 11

A policy fails the second prong of intermediate scrutiny where, as here, the challenged 12

policy undermines the important governmental interest purportedly served by the discriminatory 13

policy. See Morales-Santana, 137 S. Ct. at 1697-98; Hogan, 458 U.S. at 729-30. Recently, the 14

Supreme Court addressed a sex-based equal protection challenge in Morales-Santana. 137 S. Ct. 15

1678. Morales-Santana challenged a longstanding rule that transmitted U.S. citizenship 16

differently to children of unwed citizens depending on the sex of the U.S.-citizen parent. Id. at 17

1682. The government argued that its discriminatory policy was necessary to forward the 18

important governmental interest of ensuring that children are not born “stateless.” Id. at 1696. 19

However, researchers, including a multi-year research project performed by the United Nations 20

High Commissioner for Refugees, found that policies like the one at issue were a major cause 21

of children being born stateless. Id. (noting that researchers determined that “discrimination 22

against either mothers or fathers in citizenship and nationality laws is a major cause of 23

statelessness”). The Court held that the government had failed to subject its assumptions to a 24

“reality check,” and struck down the gender classification as insufficiently tailored to the 25

governmental objective. Id. at 1697-98. 26

WASHINGTON’S MOTION FOR SUMMARY

10

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 16 of 25

1

Similarly, the Supreme Court held that a university’s policy of excluding males from

2 nursing school violated equal protection when the sex-based policy perpetuated gender

3 stereotypes, rather than furthered the university’s goal of rectifying past discrimination against

4 women. Hogan, 458 U.S. at 729-30. In arriving at its holding, the Court noted that although the

5 university recited the “benign, compensatory purpose” of reducing gender-based stereotypes, its

6 policy of limiting the nursing program to women actually reinforced the stereotypes that only

7 women work as nurses. Id. (noting that “[r]ather than compensate for discriminatory barriers

8 faced by women, [the university’s] policy of excluding males from admission to the School of

9 Nursing tends to perpetuate the stereotyped view of nursing as exclusively a woman’s job”).

10

Applying these settled principles, this Court correctly rejected Defendants’ assumption

11 that barring transgender people from military service somehow furthers government’s interests

12 in readiness or cost control. ECF 103 at 16. In granting preliminary relief, the Court cited the

13 government’s own evidence that banning transgender individuals from service affirmatively

14 harms military budgets and readiness by causing “loss of qualified personnel, erosion of unit

15 cohesion, and erosion of trust in command.” Id. (citing ECF 46 ¶¶ 25-26; ECF 48 ¶¶ 45-47); see

16 also ECF 46-2 at 39-47 (RAND Corporation report finding “no evidence” that allowing

17 transgender individuals to serve in the military would undermine lethality, unit cohesion,

18 effectiveness, or readiness and noting that disallowing transgender individuals to serve would

19 cause the military to lose skilled and qualified personnel).

20

Other courts agree. See Doe 1, 2017 WL 4873042, at *30 (“[A]ll of the reasons proffered

21 by the President for excluding transgender individuals from the military [are] not merely

22 unsupported, but [are] actually contradicted by the studies, conclusions, and judgment of the

23 military itself.”); id. at *33 (“On the record before the Court, there is absolutely no support for

24 the claim that the ongoing service of transgender people would have any negative effect[] on the

25 military at all. In fact, there is considerable evidence that it is the discharge and banning of such

26 individuals that would have such effects.”); Stone, 2017 WL 5589122, at *16 (same); Order

WASHINGTON’S MOTION FOR SUMMARY

11

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 17 of 25

1 Denying Defendants’ Motion to Dismiss and Granting Plaintiffs’ Motion for Preliminary

2 Injunction at 20, Stockman, No. 5:17-cv-1799-JGB (C.D. Cal. Dec. 22, 2017), ECF 79 (same).

3

As the Ban undercuts the very governmental interests it purports to promote, it cannot be

4 deemed substantially related to those same interests. Accordingly, the Ban fails intermediate

5 scrutiny. 6

b. A promise of future justification is insufficient to satisfy intermediate scrutiny

7

In the absence of any evidentiary support, Defendants’ primary argument in support of

8 the Ban appears to be a promise that Defendants will issue a “final” policy excluding transgender

9 individuals from serving in the military, and justifications will accompany that forthcoming

10 policy. See ECF 69 at 20-21 (noting that “[t]he Court does not have before it the final policy [or]

11 justifications for that final policy”). As a matter of law, post-hoc justifications are insufficient to

12 satisfy intermediate scrutiny, and Defendants’ concession that they plan to rely on post-hoc

13 justifications dooms any defense to Washington’s equal protection claim.

14

The Supreme Court has consistently held that post-hoc rationales are legally insufficient

15 to inoculate sex-based classifications. “It will not do to ‘hypothesiz[e] or inven[t]’ governmental

16 purposes for gender classifications ‘post hoc in response to litigation.’” Morales-Santana, 137

17 S. Ct. at 1696-97 (rejecting post-hoc claim of governmental interest that is not supported by the

18 record) (quoting Virginia, 518 U.S. at 533, 535-36). Instead, the Court has consistently required

19 government entities to prove a “genuine” need for a sex-based classification, and has been clear

20 that post-hoc justifications do not qualify. Virginia, 518 U.S. at 532-33.

21

Here, Defendants’ own pleadings confirm that there is no current justification for the

22 Ban, but Defendants assure the Court that DoD is working to “complete its study and implement

23 its final policy.” ECF 106 at 6; see also ECF 69 at 40 (conceding that the “final policy” remains

24 to be “studied, developed and implemented”); id. at 37 n.12 (conceding that a review is only

25 “now underway”). This process is exactly backwards. The Court should evaluate the Ban on the

26

WASHINGTON’S MOTION FOR SUMMARY

12

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 18 of 25

1 evidence presented at the time it was announced, which is no evidence at all. The Ban is unrelated

2 to any government objective, and fails intermediate scrutiny.2

3

c. “Military deference” is no substitute for constitutional tailoring

4

While courts owe deference to well-reasoned policies or practices developed by military

5 experts or the Legislature, neither is “free to disregard the Constitution when [they] act in the

6 area of military affairs.” Rostker v. Goldberg, 453 U.S. 57, 67 (1981). In reviewing military

7 action for constitutional compliance, courts may accord deference where the challenged

8 restriction arises from military expertise or developed research. Id. Here, by contrast, the

9 Defendants’ evidence demonstrates that President Trump initiated the Ban without performing

10 research or consulting with military professionals. This Court owes no deference to his decision.

11

In Rostker, the Court assessed the constitutionality of the provision of the Military

12 Selective Service Act exempting women from Selective Service registration requirements. 453

13 U.S. at 59. While acknowledging the deference applicable to “legislative and executive

14 judgments in the area of military affairs,” the Court was quick to reaffirm that the Due Process

15 Clause provides protections in the military context. Id. at 66-67. The Court upheld the Selective

16 Service exemption for women after reviewing the congressional record and decision making

17 process, and concluding that it was not the result of “reflexive[]” or “unthinking[]” bias. Id. at

18 72. Instead, it was appropriate to defer to Congress’s “careful[]” evaluation of the evidence,

19 which was “extensively considered” in “hearings, floor debate, and in committee.” Id. at 72, 82.

20

Similarly, in a challenge involving religious head coverings, the Court began by noting

21 the deferential review standard owed to military regulations. Goldman v. Weinberger, 475 U.S.

22 503, 507-08 (1986). The Court was careful to explain, however, that such deference attaches to

23 the “professional judgment of military authorities concerning the relative importance of a

24 particular military interest.” Id. at 507; see also Dep’t of Navy v. Egan, 484 U.S. 518, 527, 530-

25

26

2 The Court was correct to conclude that the wholesale lack of evidence would also cause the Ban to fail ordinary rational basis review. See ECF 103 at 18 n.8.

WASHINGTON’S MOTION FOR SUMMARY

13

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 19 of 25

1 31 (1988) (deferring to a longstanding military information and staffing classification system

2 and noting the statutory scheme out of which the system arose). Indeed, in Goldman, a case

3 involving a “military regulation” governing uniform standards, judicial deference was

4 appropriate because the record showed that it constituted the “considered professional judgment

5 of the Air Force” developed over multiple years. 475 U.S. at 508-09.

6

Rostker, Goldman, and Egan demonstrate that deference is only given to considered

7 military decision making, not where military policy is the result of reflexive, impulsive or

8 baseless decisions unrooted in evidence or the professional judgment of military authorities. See

9 Watkins, 875 F.2d at 729 (reminding that there are limits to court deference in the military

10 context and noting that “it is unthinkable that the judiciary would defer to the Army’s prior

11 ‘professional’ judgment that black and white soldiers had to be segregated to avoid interracial

12 tensions”). See also Rostker, 453 U.S. at 57; Witt, 527 F.3d at 820.

13

Such is the case here. The Ban is not the outcome of any study, but rather President

14 Trump’s abrupt action on a “major policy change[] that will gravely affect the lives of many

15 Americans.” Doe 1, 2017 WL 4873042, at *30. Indeed, the Ban flies in the face of the

16 conclusions and recommendations only recently reached by military professionals and

17 researchers following a multi-year assessment of the impact that open service and accession by

18 transgender individuals might have on military readiness, efficacy, and budgetary constraints.

19 ECF 103 at 4 (citing ECF 30 at ¶¶ 159-62; ECF 32 at 9-10; ECF 46 ¶ 11); ECF 34-1 at 4-5. If

20 this Court accords deference to any military policies or guidance in this matter, it should be to

21 those careful and considered conclusions, not an unresearched blanket Ban – the justifications

22 for which Defendants have yet to provide to this or any court. Precedent simply provides no

23 support for a grant of special deference under these circumstances, either to President Trump’s

24 tweets, the Presidential Memorandum, or any hastily crafted “studies” that may be developed to

25 provide cover for the Ban.

26

WASHINGTON’S MOTION FOR SUMMARY

14

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 20 of 25

1

Finally, Defendants imply that because the Ban is longstanding military policy, it must

2 be constitutional. See ECF 69 at 29 (“The military’s longstanding accessions policy is subject to

3 a highly deferential form of review”). This Court should reject such an argument. Regardless of

4 a policy’s age, every government policy is subject to constitutional review and must be held

5 invalid if it violates constitutional guarantees. As the Supreme Court has recently confirmed,

6 when “interpreting the Equal Protection Clause, the Court has recognized that new insights and

7 societal understanding can reveal unjustified inequality within our most fundamental institutions

8 that once passed unnoticed and unchallenged.” Obergefell, 135 S. Ct. at 2590. The fact that the

9 military has long excluded transgender individuals from service and denied them medically

10 necessary healthcare does not transform an unlawful policy into a constitutional or unreviewable

11 one. It just confirms the critical role of judicial review as a check on such military policies.

12

In sum, Defendants have not produced evidence sufficient to show that the Ban furthers

13 any government objectives – much less important ones. Even if they had, there is no evidence

14 whatsoever that a categorical Ban is substantially related to military readiness, lethality, unit

15 cohesion, or cost control. The Ban violates both prongs of intermediate scrutiny, and the Court

16 should grant summary judgment on Washington’s claim that it violates the equal protection

17 guarantee of the Fifth Amendment.

18 C. 19

The Ban Violates Substantive Due Process The Ban also violates the substantive due process protections of the Fifth Amendment.

20 “The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes

21 more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719

22 (1997) (citing Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). Indeed, the “Due Process

23 Clause ‘protects individual liberty against certain government actions regardless of the fairness

24 of the procedures used to implement them.’” Id. (quoting Collins, 503 U.S. at 125). “The theory

25 is that some liberties are ‘so rooted in the traditions and conscience of our people as to be ranked

26 as fundamental,’ and therefore cannot be deprived without compelling justification.” Obergefell,

WASHINGTON’S MOTION FOR SUMMARY

15

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 21 of 25

1 135 S. Ct. at 2597-98 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). The

2 fundamental liberties protected by this Clause extend to “certain personal choices central to

3 individual dignity and autonomy – including intimate choices that define personal identity and

4 beliefs.” Id. at 2597-98 (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), and Griswold v.

5 Connecticut, 381 U.S. 479, 484–486 (1965)). The personal choices protected by substantive due

6 process include choices at the core of personal autonomy and self-definition, id. at 2599,

7 including “the ability independently to define one’s identity[,]” Roberts v. U.S. Jaycees, 468

8 U.S. 609, 619 (1984)). See also Abbott v. Abbott, 560 U.S. 1, 11 (2010); Lawrence v. Texas, 539

9 U.S. 558, 567 (2003)).

10

Asserting one’s own gender identity is a core aspect of personal autonomy and self-

11 definition and, as such, is a fundamental right protected by substantive due process guarantees.

12 A restriction on such a fundamental right – even in the military context – can only be sustained

13 if: (1) the restriction advances an important governmental interest; (2) the intrusion significantly

14 furthers that interest, and (3) a less intrusive means will not substantially achieve the

15 government’s interest. Witt, 527 F.3d at 819. In this case, the due process and equal protection

16 analyses are closely related. As with the equal protection claim, the Ban fails every prong of the

17 due process test, and summary judgment is appropriate.

18

1. There is no evidence that the Ban improves military readiness or cost

control

19 Presumably, and consistent with their equal protection defense, Defendants will claim

20 that the Ban is necessary to ensure that open military service by transgender individuals does not

21 “hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources.” See

22 ECF 56-1 § 1(a). Where supported by evidence, courts have consistently found these to be

23 important governmental interests for meeting the first prong of a substantive due process

24 challenge. See, e.g., Witt, 527 F.3d at 820 (citing cases). But simply reciting the key words

25 “military,” “lethality,” “unit cohesion,” or “force,” without more, is insufficient to sustain a

26

WASHINGTON’S MOTION FOR SUMMARY

16

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 22 of 25

1 discriminatory policy. Witt, 527 F.3d at 820 n.10; Watkins, 875 F.2d at 699. Defendants have

2 submitted no evidence in support of the President’s policy, and, on this basis alone, the Court

3 should grant summary judgment on Washington’s substantive due process claim.

4

2. The Ban does not significantly further the alleged military interests

5

Even had Defendants offered evidence that the Ban furthers an important governmental

6 interest – and they have not – Defendants fail to show that the Ban’s intrusion on fundamental

7 rights is substantially connected to the military’s interests. As discussed, the government’s own

8 evidence shows that military readiness, efficacy, unit cohesion, and budgetary goals are harmed

9 by the exclusion of transgender individuals from service, not by allowing transgender individuals

10 to serve including the “loss of qualified personnel, erosion of unit cohesion, and erosion of trust

11 in command.” ECF 103 at 16 (citing ECF 46 ¶¶ 25-26; ECF 48 ¶¶ 45-47). Defendants’ stated

12 interests are insufficient to “justify [the] intrusion into the personal and private life of the

13 individual.” Lawrence, 539 U.S. at 578. The Ban fails under the second step of the due process

14 analysis.

15

3. The Ban is not the least intrusive means by which Defendants can protect the asserted government interests

16

“Even though governmental purpose be legitimate and substantial, that purpose cannot

17 be pursued by means that broadly stifle fundamental personal liberties when the end can be more

18 narrowly achieved.” Aptheker v. Sec’y of State, 378 U.S. 500, 508 (1964) (internal quotation

19 marks omitted)). Courts will not sustain a discriminatory policy or practice unless “a less

20 intrusive means [is] unlikely to achieve substantially the government’s interest.” Witt, 527 F.3d

21 at 819.

22

A blanket Ban excluding all transgender individuals from military service cannot

23 possibly be the least intrusive means to promote military interests. An obvious, less restrictive

24 alternative is to evaluate service members and recruits individually to determine whether any of

25 them “hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources”

26

WASHINGTON’S MOTION FOR SUMMARY

17

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 23 of 25

1 as compared with other soldiers. Cf. ECF 56-1 § 1(a). That is precisely the analysis that the

2 Ninth Circuit requires in the military context. Witt, 527 F.3d at 821 & n.11 (remanding for

3 determination whether applying Don’t Ask, Don’t Tell “specifically to Major Witt . . . would

4 achieve substantially the government’s interest,” but expressing skepticism where the alleged

5 facts showed that “Major Witt was a model officer” and that “it was her suspension . . . not her

6 homosexuality, that damaged unit cohesion”); see also Watkins, 875 F.2d at 708-09 (estopping

7 the military from denying soldier’s reenlistment where record showed that service member had

8 “greatly benefitted the Army, and therefore the country, by his military service” which had been

9 marked by “nothing but the highest praise”).

10

Finally, and critically, individualized assessment of service members and recruits

11 imposes no new or different burdens on the military. It is the standard practice applicable to all

12 service members and recruits to determine whether they are fit for service and whether their

13 individual characteristics (specializations, training, medical needs) affect their proper

14 assignment. See Department of Defense Instruction (“DoDI”) 6130.03, Medical Standards for

15 Appointment, Enlistment, or Induction in the Military Services; DoDI 6490.03, Deployment

16 Health Assessment.3 Defendants routinely determine whether a recruit is fit for service based on

17 background, medical condition, or any number of additional factors. Id. With respect to

18 transgender recruits specifically, the military’s own evidence shows that it is well equipped to

19 evaluate the fitness of individual applicants, and has been doing so since January 1, 2018. ECF

20 120-1. There is simply no reason to think that the military is incapable of individually assessing

21 a transgender person’s fitness to serve without regard- to their gender identity, just as it does for

22 individuals of diverse racial, religious, language, medical, and educational backgrounds. A

23 categorical ban is not the least-intrusive means to achieve the military’s interests, and the Ban

24 fails the third prong of the due process analysis.

25

26

3 Available at: http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/613003p.pdf, and http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/649003p.pdf.

WASHINGTON’S MOTION FOR SUMMARY

18

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 24 of 25

1

IV. CONCLUSION

2

The Transgender Military Service Ban violates the Fifth Amendment’s guarantees of

3 equal protection and due process. The Court should grant summary judgment in favor of

4 Washington on both of its claims.

5 DATED this 25th day of January, 2018.
6

7

ROBERT W. FERGUSON

8

Washington Attorney General

9

/s/ La Rond Baker

LA ROND BAKER, WSBA No. 43610

10

COLLEEN MELODY, WSBA No. 42275

11

Assistant Attorneys General Office of the Attorney General

12

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

13

(206) 464-7744

LaRondB@atg.wa.gov 14

15

16

17

18

19

20

21

22

23

24

25

26

WASHINGTON’S MOTION FOR SUMMARY

19

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

Case 2:17-cv-01297-MJP Document 150 Filed 01/25/18 Page 25 of 25

1

CERTIFICATE OF SERVICE

2

I hereby certify that the foregoing document was electronically filed with the United

3 States District Court using the CM/ECF system. I certify that all participants in the case are

4 registered CM/ECF users and that service will be accomplished by the appellate CM/ECF

5 system.

6

Dated this 25th day of January, 2018.

7

/s/ La Rond Baker

LA ROND BAKER, WSBA No. 43610 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

WASHINGTON’S MOTION FOR SUMMARY

20

JUDGMENT

ATTORNEY GENERAL OF WASHINGTON Civil Rights Unit
800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 442-4492

 
 Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 1 of 11

1 The Honorable Marsha J. Pechman
2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

RYAN KARNOSKI, et al.,

10 Plaintiffs,
11 v.
12

13

DONALD J. TRUMP, et al.,

14

Defendants.

No. 2:17-cv-1297-MJP
DEFENDANTS’ RULE 56(d) RESPONSE TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 2 of 11

1

TABLE OF CONTENTS

2 INTRODUCTION ........................................................................................................................................1
3 BACKGROUND ...........................................................................................................................................1 4
ARGUMENT .................................................................................................................................................. 2 5
CONCLUSION ..............................................................................................................................................8 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - i Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297-MJP

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 3 of 11

1

INTRODUCTION

2

Plaintiffs brought this action challenging the constitutionality of the President’s

3 memorandum regarding military service by transgender individuals. Relying heavily on twenty

4 declarations and numerous exhibits, Plaintiffs, as well as the State of Washington as an intervenor,

5 moved for summary judgment early in this litigation and before Defendants had had the

6 opportunity to take any depositions or serve discovery. The Court should defer ruling on these

7 summary judgment motions under Federal Rule of Civil Procedure 56(d) to allow Defendants the

8 opportunity to take discovery. Discovery has just recently begun in this and three other related

9 cases in other jurisdictions, and most of the depositions Defendants currently have scheduled of

10 Plaintiffs’ declarants will not occur until mid-to-late March. Moreover, as discussed in the attached

11 declaration, discovery will enable Defendants to test the accuracy and completeness of the factual

12 assertions contained in the numerous declarations submitted in support of Plaintiffs’ summary

13 judgment motion—assertions that Plaintiffs contend are material—and to develop additional facts

14 that will further support, inter alia, why Plaintiffs lack standing to bring their claims and why

15 summary judgment should be granted for Defendants.

16

By filing this Rule 56(d) motion, Defendants in no way concede that the facts asserted in

17 support of Plaintiffs’ and intervenor’s summary judgment motions, if true, would entitle them to

18 summary judgment. Courts, however, have held that a party “may not attempt to meet a summary

19 judgment challenge head-on but fall back on [Rule 56(d)] if its first effort is unsuccessful.” Been v.

20 O.K. Indus., Inc., 495 F.3d 1217, 1235 (10th Cir. 2007); accord Rodriguez-Cuervos v. Wal-Mart Stores, Inc.,

21 181 F.3d 15, 23 (1st Cir. 1999). Accordingly, Defendants have filed this Rule 56(d) response

22 instead of attempting to oppose summary judgment without any discovery. Been, 495 at 1235.

23 Defendants reserve the right to oppose the summary judgment motions even if discovery does not

24 reveal any basis to dispute Plaintiffs’ and the intervenor’s asserted material facts or disclose any

25 other material facts (in particular, facts related to this Court’s jurisdiction).

26

BACKGROUND

27

On August 28, 2017, Plaintiffs filed a complaint in this action, Dkt. No. 1. They then filed

28 an amended complaint and a motion for a preliminary injunction on September 14. See Dkt. Nos.

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 1 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 4 of 11

1 30, 32. On December 11, 2017, the Court dismissed Plaintiffs’ procedural due process claim, 2 denied the remainder of Defendants’ motion to dismiss, and granted Plaintiffs’ motion for a 3 preliminary injunction, which enjoined Defendants “from taking any action relative to transgender

4 individuals that is inconsistent with their status quo that existed prior to President Trump’s July 26, 5 2017 announcement.” See Dkt. No. 103 at 22-23. On January 5, 2018, the Court issued an Order 6 setting the date for the exchange of initial disclosures, the holding of the Rule 26(f) conference, 7 and the submission of a Joint Status Report and Discovery Plan. See Dkt. No. 124. In particular,

8 the Court ordered that the parties exchange initial disclosures on February 9, 2018, and submit a

9 combined Joint Status Report and Discovery Plan on February 16, 2018. Id.

10

Although the parties had not yet submitted a discovery plan, and although the Secretary of

11 Defense is scheduled to submit a plan to the President concerning transgender service members

12 that may substantially affect this litigation in just over a week, Plaintiffs and Washington filed

13 summary judgment motions contending that there are no genuine disputes of material fact and that

14 they are entitled to judgment as a matter of law. Dkt. No. 129; Dkt. No. 150. In support of their

15 motion, Plaintiffs submitted twenty declarations (totaling over 160 pages), including declarations

16 from the nine individual Plaintiffs, the three organizational Plaintiffs, four former Service and

17 Under Secretaries and a former Chairman of the Joint Chiefs of Staff, two purported expert

18 witnesses, and an attorney declaration seeking to authenticate a host of exhibits. See Dkt. Nos.

19 130–49. Their motion relies heavily on those declarations.

20

ARGUMENT

21

Pursuant to Rule 56(d), Defendants are entitled to discovery before the Court rules on

22 Plaintiffs’ and intervenor’s summary judgment motions. Plaintiffs’ summary judgment motion

23 contains a lengthy “Statement of Undisputed Fact,” which is based upon twenty declarations and a

24 number of attached exhibits. See Dkt. No. 129 at 2-8; Dkt. Nos. 130–49. Without the time and

25 the opportunity for discovery, Defendants cannot contest these facts. This lack of a fair

26

27

28

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 2 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 5 of 11

1 opportunity to test these asserted facts will necessarily hinder Defendants’ efforts to oppose

2 Plaintiffs’ and intervenor’s summary judgment motions.1

3

“[Rule 56(d)] allows a summary judgment motion to be denied, or the hearing on the

4 motion to be continued, if the nonmoving party has not had an opportunity to make full

5 discovery.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).2 To prevail on a Rule 56(d) motion,

6 “the parties opposing a motion for summary judgment must make (a) a timely application [that] (b)

7 specifically identifies; (c) relevant information; (d) where there is some basis for believing that the

8 information sought actually exists.” Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir.

9 2009) (citations and internal quotations omitted). And where, as here, “a summary judgment

10 motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue

11 discovery relating to its theory of the case, district courts should grant any Rule 56[(d)] motion

12 fairly freely.” Burlington N. Santa Fe R.R. Co. v. Assiniboine Tribe, 323 F.3d 767, 773 (9th Cir. 2003);

13 see also Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995) (holding that Rule 56(f)

14 motions are granted “almost as a matter of course unless the nonmoving party has not diligently

15 pursued discovery of the evidence”) (citation and quotation omitted). Indeed, the specificity

16 requirement is substantially relaxed where, like here, no discovery has taken place whatsoever as

17 “the party making a Rule 56[(d)] motion cannot be expected to frame its motion with great

18

19

1 Although the State of Washington’s summary judgment motion purports to rely only upon “this Court’s prior rulings

and Defendants’ evidence, briefing and public statements,” Dkt. No. 150 at 1, Defendants’ opposition to Washington’s

20

summary judgment motion also should be held in abeyance until Defendants have had an opportunity to engage in

discovery. Washington’s motion puts at issue identical questions to be resolved on the merits, and discovery obtained

21

from many of Plaintiffs’ declarants will be used in responding to Washington’s summary judgment motion.

Accordingly, given the substantial overlap in the legal and factual issues, resolution of Washington’s summary

22

judgment motion should proceed at the same time as the Plaintiffs’ motion for summary judgment. See Fed. R. Civ. P. 1 (noting that the Federal Rules should be “construed, administered and employed by the court and the parties to

23

secure the just, speedy, and inexpensive determination of every action and proceeding.”). In addition, because Washington’s status as a proper intervenor necessarily turns on the Court’s conclusion that Plaintiffs possess standing,

24

resolving Washington’s summary judgment motion while Defendants are conducting discovery into Plaintiffs’ standing would be particularly inappropriate. See Sanford v. Memberworks, Inc., 625 F.3d 550, 560-61 (9th Cir. 2010) (holding that

25

there is no right to intervene where plaintiffs lack standing). Deferring Washington’s summary judgment motion to allow Defendants the opportunity to obtain discovery will not prejudice Washington because Defendants are currently

26

enjoined 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.” Dkt. No. 103 at 23. The Court’s preliminary injunction will

remain in effect pending resolution of this action on the merits or further order of this Court. Id.

27

2 Pursuant to the 2010 amendments to the Federal Rules of Civil Procedure, Rule 56(f) was re-designated as Rule

56(d). This re-designation did not substantively change the rule. See Michelman v. Lincoln Nat’l Life Ins, Co., 685 F.3d

28

887, 899 n.7 (9th Cir. 2012)

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 3 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 6 of 11

1 specificity as to the kind of discovery likely to turn up useful information, as the ground for such

2 specificity has not yet been laid.” Burlington N. Santa Fe, 323 F.3d at 774.

3

Here, there can be no serious dispute that Defendants’ motion is timely. Blough, 574 F.3d

4 at 1091 n.5. Defendants have not previously had an opportunity to fully pursue discovery in this

5 case; indeed, the Court has yet to even issue a scheduling order. Dkt. No. 124. Moreover, on

6 December 15 and December 22, 2017—more than a month before Plaintiffs and the intervenor

7 filed their summary judgment motions—Defendants noted in a Joint Status Report and

8 Supplement in the related case Doe v. Trump that it would be taking the depositions of Brad Carson

9 on March 19, 2018; Deborah Lee James on March 21, 2018; Raymond Mabus, Jr., on March 26,

10 2018; Eric K. Fanning on March 29, 2018; George Richard Brown on March 5, 2018; and Mark

11 Eitelberg on March 27, 2018. See Joint Status Report at 4-5, Doe v. Trump, No. 1:17-cv-01597-CKK

12 (D.D.C. Dec. 15, 2017) Dkt. No. 76; Supplemental Joint Status Report at 3, Doe, No. 1:17-cv-

13 01597-CKK (D.D.C. Dec. 22, 2017) Dkt. No. 77. These six individuals have submitted

14 declarations in support of Plaintiffs’ summary judgment motion in this case, and appear to be

15 offering the same testimony in all four related cases. See Dkt. No. 142–47. And, counsel for

16 Plaintiffs here have been invited to attend the depositions.

17

Defendants, moreover, have satisfied their burden of showing how discovery will likely

18 reveal relevant information. The attached declaration sets forth the specific facts Defendants hope

19 to elicit through discovery and the reasons those sought-after facts would create a genuine issue of

20 material fact (or warrant summary judgment in Defendants’ favor). See Decl. of Ryan B. Parker

21 (Feb. 12, 2018). The declaration satisfies the requirements of Rule 56(d), because, at the very least,

22 it “give[s] the [] court some idea of how the sought-after discovery might reasonably be supposed

23 to create a factual dispute.” Emplanar, Inc. v. Marsh, 11 F.3d 1284, 1292 (5th Cir. 1994).

24

For example, Plaintiffs have submitted declarations from each of the nine individual

25 Plaintiffs, see Dkt. Nos. 130–38, as well as the three organizational Plaintiffs, see Dkt. Nos. 139–41.

26 Each of these declarations seek to support Plaintiffs’ standing to sue. See Dkt. No. 129 at 6-8. As

27 the parties invoking federal jurisdiction, Plaintiffs bear the burden of satisfying the elements of

28 jurisdiction. See Lujan v. Defenders of the Wildlife, 504 U.S. 555, 561 (1992) (citations omitted). And

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 4 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 7 of 11

1 although this Court previously concluded that the Plaintiffs had standing for purposes of their 2 motion for a preliminary injunction, Plaintiffs burden on summary judgment is significantly more 3 exacting. See id. (“[E]ach element must be supported in the same way as any other matter on which 4 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the 5 successive stages of the litigation.”) (citations omitted). Accordingly, at the summary judgment 6 stage, Plaintiffs “can no longer rest on [ ] ‘mere allegations,’ but must ‘set forth’ by affidavit or 7 other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken 8 to be true.” Id. (citation omitted). When Plaintiffs use affidavits to support their standing 9 argument, courts grant defendants the opportunity to “test the assertions in Plaintiffs’ affidavits 10 through discovery.” Bryant v. Woodall, No. 1:16CV1368, 2017 WL 1292378, at *7 (M.D.N.C. Apr. 11 7, 2017) (finding that although the plaintiffs claimed that they asserted facts to establish standing in 12 their affidavits, the defendants should be afforded an opportunity to conduct discovery on the 13 issue); MKB Mgmt. Corp. v. Burdick, No. 1:13-CV-071, 2013 WL 6147204, at *5 (D.N.D. Nov. 15, 14 2013) (stating that “although it appears plaintiffs’ standing is well-established, some discovery 15 regarding that issue may be undertaken if the State is going to contest it”); see also Greater Baltimore 16 Ctr. for Pregnancy Concerns, Inc. v. Mayor of Baltimore, 721 F.3d 264, 285 (4th Cir. 2013) (stating that 17 “discovery is especially important where, as here, the relevant facts are exclusively in the control of 18 the summary judgment movant” (internal quotation omitted)). Thus, a court that enters a 19 preliminary injunction for a plaintiff may later enter judgment for the defendant on jurisdictional 20 grounds based on the factual record developed through discovery. See, e.g., In re IPhone Application 21 Litig., 6 F. Supp. 3d 1004, 1016 (N.D. Cal. 2013) (noting that the court found standing at motion to 22 dismiss stage but concluded that plaintiffs lacked standing at summary judgment because the 23 defendant adduced “specific facts” through discovery that established a lack of evidence of 24 causation). See generally People To End Homelessness, Inc. v. Develco Singles Apartments Assocs., 339 F.3d 1, 25 8 (1st Cir. 2003) (“As litigation progresses, Article III places an increasingly demanding evidentiary 26 burden on parties that seek to invoke federal jurisdiction. A plaintiff who has standing at the 27 motion to dismiss stage, does not automatically have standing at the summary judgment or trial 28 stage.”).

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 5 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 8 of 11

1

The “Statement of Undisputed Facts” in support of Plaintiffs’ summary judgment motion

2 relies heavily upon the declarations by the various Plaintiffs. See Dkt. No. 129 at 2-8. In particular,

3 it relies on the declarations to establish that the plaintiffs have suffered harm—a basic requirement

4 for establishing jurisdiction. See id. at 6–8; Lujan, 504 U.S. at 560. Yet many of the factual

5 contentions Plaintiffs assert are based on information that is not readily available to Defendants.

6 Before responding to Plaintiffs’ motion, Defendants are entitled to discovery that would enable

7 them to test Plaintiffs’ version of the facts. See, e.g., Bischoff v. Osceola Cty., 222 F.3d 874, 876 (11th

8 Cir. 2000) (holding that the district court erred in granting summary judgment based on conflicting

9 affidavits concerning plaintiffs’ standing). For example, Plaintiff Ryan Karnoski states in

10 conclusory fashion in his declaration that he is “ready and able to pursue a military career,” Dkt.

11 No. 130 at ¶ 16, and that he is “fit to serve in the military.” Id. at ¶ 20. Defendants should be

12 afforded the opportunity to vet these conclusory assertions. Similarly, Plaintiff D.L. states that

13 “when [he] meet[s] the current requirements to enlist, [he] intend[s] to do so.” Dkt. No. 132 at ¶

14 16. Of course, this raises the question of whether he can, in fact, meet the eligibility requirements

15 for service in the military. Defendants, at a minimum, should have the opportunity to enquire into

16 these and other factual assertions by the Plaintiffs before the Court resolves Plaintiffs’ and

17 intervenor’s summary judgment motions.

18

In addition, many of the non-Plaintiff declarants express, in lengthy declarations, their

19 opinions about the previous Administration’s analysis of the issue of military service by

20 transgender individuals and what they perceive to be the current Administration’s policy on this

21 issue. In particular, Plaintiffs’ summary judgment motion relies heavily on these declarations for

22 their argument that the Government “lacks any justification” for the exclusion of transgender

23 individuals from military service, and that restrictions on transgender service members do not

24 further “military effectiveness, unit cohesion and cost.” Dkt. No. 129 at 14. Although Plaintiffs

25 have not clearly indicated whether they seek to offer this testimony as expert or fact testimony for

26 each of these witnesses, Defendants are entitled to test the basis and reliability of these sort of

27 “opinions” concerning what Plaintiffs believe to be the key facts and issues in this case. 1443

28 Chapin Street, L.P., v. PNC Bank, Nat’l Ass’n, 258 F.R.D. 186, 188 (D.D.C. 2009) (party seeking

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 6 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 9 of 11

1 Rule 56(f) continuance is entitled to test the accuracy and/or qualifications of a purported expert

2 through discovery rather than being forced to respond to summary judgment); United States v.

3 Nutri-Cology, Inc., No. C-91-1332, 1993 WL 13585505, *4 (N.D. Cal. Sept. 23, 1993) (granting

4 continuance under Rule 56(f) so that party could take depositions of the summary judgment

5 movant’s experts). Defendants intend to depose each of these individuals to test the bases for

6 their opinions concerning military readiness, unit cohesion, and costs, as well as uncover the

7 underlying facts they have relied upon (or not relied upon) in reaching their opinions.3 Indeed,

8 these individuals’ depositions have already been scheduled throughout the month of March. See

9 Decl. of Ryan B. Parker, ¶10.

10

Finally, a non-movant has “clearly met” its burden under Rule 56(d) when it is “not seeking

11 additional discovery, but discovery at all.” Xerox Corp. v. Genmoora Corp., 888 F.2d 345 (5th Cir.

12 1989). “[R]ush[ing] to summary judgment” without allowing the non-movant to engage in any

13 discovery would “substantially handicap[]” the non-movant “in any attack on the facts asserted by

14 the [summary judgment movant].” Id. at 355. Instead, courts “must afford” a non-movant “some

15 protective armor . . . to properly defend against” a motion for summary judgment. Int’l Shortstop,

16 Inc. v. Rally’s Inc., 939 F.2d 1257, 1268 (5th Cir. 1991); see, e.g., Harrods Ltd. v. Sixty Internet Domain

17 Names, 302 F.3d 214, 245 (4th Cir. 2002) (holding that court improperly denied Rule 56(d) relief

18 where summary judgment was granted six weeks after complaint was filed and there had been

19 almost no discovery conducted in the case).

20

Accordingly, this Court should not “substantially handicap” Defendants by denying them

21 the time and opportunity to take discovery necessary to determine whether Plaintiffs’ factual

22 assertions are accurate and complete, and whether Plaintiffs have standing to support this Court’s

23 jurisdiction. Because this action was only recently filed, Defendants have had no opportunity to

24

25

3 Plaintiffs note in their summary judgment motion that the evidence they are relying upon “includes substantially similar declarations as those submitted in support of Plaintiffs’ preliminary injunction motion, supplemented with

26

relevant factual updates as appropriate, as well as declarations from former Secretary of the Army Eric Fanning and former Secretary of the Air Force Deborah Lee James.” Dkt. No. 129 at 2 n.1. If Plaintiffs are suggesting that

Defendants should be foreclosed from deposing their declarants at this juncture because Defendants should have

27

deposed them during the pendency of the preliminary injunction briefing, such an argument lacks legal support. In

any event, Plaintiffs acknowledge that their declarants have supplemented their preliminary injunction declarations and

28

that they are submitting declarations from two new individuals.

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 7 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 10 of 11

1 pursue and complete discovery. Indeed, pursuant to the Court’s January 5, 2018 Order, the parties

2 did not even exchange initial disclosures until February 9, 2018, and will not submit a combined

3 Joint Status Report and Discovery Plan until February 16, 2018. Dkt. No. 124. The Court,

4 therefore, should not rely upon the Plaintiffs’ “Statement of Undisputed Facts,” Dkt. No. 129 at 2-

5 8, without first allowing Defendants discovery to test those assertions and uncover other material

6 facts relevant to the summary judgment motions.

7

CONCLUSION

8

For these reasons, the Court should defer ruling on Plaintiffs’ and Washington’s motions

9 for summary judgment under Rule 56(d) to allow Defendants’ to take discovery before filing their

10 opposition to Plaintiffs’ and Washington’s summary judgment motions. If the Court denies

11 Defendants’ request, Defendants respectfully request 30 days to oppose the summary judgment

12 motions.

13 Dated: February 12, 2018

Respectfully submitted,

14

CHAD A. READLER

15

Acting Assistant Attorney General Civil Division

16

BRETT A. SHUMATE

17

Deputy Assistant Attorney General

18

JOHN R. GRIFFITHS

19

Branch Director

20

ANTHONY J. COPPOLINO

Deputy Director 21

22

/s/ Ryan B. Parker RYAN B. PARKER

23

Senior Trial Counsel

ANDREW E. CARMICHAEL

24

Trial Attorney

United States Department of Justice

25

Civil Division, Federal Programs Branch

26

Telephone: (202) 514-4336 Email: ryan.parker@usdoj.gov

27 Counsel for Defendants
28

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 8 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 2:17-cv-01297-MJP Document 178 Filed 02/12/18 Page 11 of 11

1

2

CERTIFICATE OF SERVICE

3

I hereby certify that on February 12, 2018, I electronically filed the foregoing Rule 56(d)

4 Response To Plaintiffs’ And Intervenor’s Motions for Summary Judgment using the Court’s

5 CM/ECF system, causing a notice of filing to be served upon all counsel of record. 6

7 Dated: February 12, 2018

/s/ Ryan Parker

8

RYAN B. PARKER

9

Senior Trial Counsel United States Department of Justice

10

Civil Division, Federal Programs Branch Telephone: (202) 514-4336

11

Email: ryan.parker@usdoj.gov

12

Counsel for Defendants

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ RULE 56(d) RESP. TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT - 9 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

 
 Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 1 of 29

1 The Honorable Marsha J. Pechman
2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

RYAN KARNOSKI, et al.,

10 Plaintiffs,
11 v.
12

13

DONALD J. TRUMP, et al.,

14

Defendants.

15

16

No. 2:17-cv-1297-MJP
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Noted for March 23, 2018

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 2 of 29

1

TABLE OF CONTENTS

2

INTRODUCTION ........................................................................................................................................1

3 ARGUMENT..................................................................................................................................................2

4

I. The Summary Judgment Motions Must Be Denied Because There Are

Numerous Genuine Issues Of Material Facts In Dispute....................................................2

5

A. Whether Plaintiffs Have Suffered Cognizable Injuries Is A Genuine Issue

6

Of Fact In Dispute. .............................................................................................................3

7

1. There Are Numerous Genuine Issues Of Disputed Material Fact

8

Concerning Whether Plaintiffs Have Standing to Challenge The Accession Policy. ....................................................................................................3

9 2. There Are Numerous Genuine Issues Of Disputed Material Fact

10

Concerning Whether Plaintiffs Have Suffered Cognizable Injuries

Caused By The Interim Guidance. ......................................................................5

11

12

3. The Organizational Plaintiffs And Intervenor Have Not Satisfied Their Burden To Prove Standing To Sue...........................................................8

13

B. Genuine Disputes of Material Fact Exist Concerning Which Policy Is

14

Applicable In The Absence of a Preliminary Injunction. ..............................................9

15

C. Judicial Economy Is Not Served By Summary Judgment Proceedings at

This Stage. ...........................................................................................................................11 16

II. Plaintiffs and Intervenor Have Not Met Their Burden of Proving That the

17

Applicable Policy Violates the Constitution. ........................................................................12

18

A. Considerable Deference is Owed to Military Personnel Decisions............................13

19

B. The Applicable Policies Are Consistent With Constitutional Guarantees. ...............15

20 1. The Applicable Policies Do Not Violate Equal Protection. ..........................16

21

a. Retention of Current Service Members.....................................................16

22

b. Surgery ............................................................................................................16

23

c. Accessions......................................................................................................17

24

2. The Applicable Policies Do Not Violate Due Process...................................20

25

3. The Applicable Policies Do Not Violate the First Amendment. ..................20

26

III. The Injunction Relief Plaintiffs Seek Is Inappropriate. ......................................................21

27

III. The Court Should Grant Partial Summary Judgment for Defendants on All

28

Claims Brought Against the President...................................................................................22

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - i Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 3 of 29

1

CONCLUSION ............................................................................................................................................24

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - ii Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 4 of 29

1

INTRODUCTION

2

Plaintiffs and Intervenor ask this Court to pre-judge the constitutionality of a future

3 Government policy regarding military service by transgender individuals and issue the extraordinary

4 relief of a worldwide permanent injunction. Although they are aware that a final policy will be issued 5 in the near future, they chose to file premature summary judgment motions that entangle the Court 6 in an abstract disagreement over a non-final policy that will be superseded shortly. For this reason 7 alone, the Court should defer ruling on the motions.

8

In any event, Plaintiffs and Intervenor are not entitled to summary judgment because there

9 are numerous genuine issues of disputed material facts. Among other things, the parties dispute

10 underlying material facts relating to whether Plaintiffs have suffered a cognizable injury in fact

11 sufficient to support legal standing; which is the applicable policy regarding service by transgender

12 persons in the military; and, relatedly, whether there has been a final decision concerning military

13 policy. In addition, they have failed to recognize the substantial deference that should be afforded

14 to the military’s personnel decisions and failed to meet their burden to show that the applicable

15 policy violates their constitutional rights. Therefore, the Court should deny Plaintiffs’ and

16 Intervenor’s summary judgment motions.

17

Defendants cross-move for partial summary judgment on all of Plaintiffs’ and Intervenor’s

18 claims against the President of the United States. Although they seek an injunction and a declaratory

19 judgment against all Defendants, the President cannot be subject to direct injunctive relief, Mississippi 20 v. Johnson, 71 U.S. 475, 501 (1866), or a declaratory judgment, Franklin v. Massachusetts, 505 U.S. 788, 21 827–28 (1992) (Scalia, J., concurring); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010). 22 Because the Court cannot issue a declaratory judgment or an order enjoining the President for his 23 official, discretionary action, the Court should grant partial summary judgment as a matter of law to 24 Defendants on all of the claims against the President.

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 5 of 29

1

ARGUMENT

2

As a preliminary matter, Defendants’ Opposition to the summary judgment motions is based

3 on the evidence available to Defendants at this early stage in the litigation, as the Court denied

4 Defendants’ Rule 56(d) motion seeking a deferral of the ruling on summary judgment to allow

5 Defendants to take discovery. See Order, ECF No. 1891; see also Burlington Santa Fe. v. Assinboine, Sioux

6 Tribe, 323 F.3d 767, 773 (9th Cir. 2003) (where “a summary judgment motion is filed so early in the

7 litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory

8 of the case, district courts should grant any Rule 56[d] motion fairly freely”); Shelton v. Bledsoe, 775

9 F.3d 554, 568 (3d Cir. 2015); Snook v. Tr. Co. of Ga. Bank of Savannah, 859 F.2d 865, 870 (11th Cir.

10 1988).

11

I. The Summary Judgment Motions Must Be Denied Because There Are Numerous

Genuine Issues Of Material Facts In Dispute.

12

Because there are numerous genuine issues of disputed material facts—such as whether

13

Plaintiffs have suffered a cognizable injury in fact sufficient to support Article III standing; which is

14

the current applicable military policy for service by transgender persons; and whether there has been

15

a final decision concerning the military policy—the Court must deny Plaintiffs’ and Intervenor’s

16

summary judgment motions. See Fed. R. Civ. P. 56(a). Under Rule 56, courts “view the evidence in

17

the light most favorable to the nonmoving party,” and “determine whether there are any genuine

18

1 Respectfully, the Court’s opinion denying Defendants’ 56(d) motion overlooked several of Defendants’ arguments as

19

to why ruling on summary judgment should be deferred to permit Defendants an opportunity to take discovery. First,

in stating that Defendants have “failed to show that they were diligent” in seeking discovery while the “case has been

20

pending for nearly six months,” Order, ECF No. 189, at 4, the Court ignored that Defendants were prohibited under

Federal Rule of Civil Procedure 26 from taking depositions or serving written discovery until after the Rule 26(f)

21

discovery conference, which did not take place until December 12, 2017. See Fed. R. Civ. P. 26(d) (“A party may not

seek discovery from any source before the parties have conferred as required by Rule 26(f) ….”).

22

Additionally, although Defendants detailed in their 56(d) motion five categories of discovery they would seek to assist them in establishing that there are genuine issues of material fact, the Court’s opinion did not address the

23

majority of these categories of discovery. The only category of discovery the Court directly addressed was related to the standing of the Plaintiffs not currently serving in the military, and the Court otherwise summarily stated that it “already

24

found that the remaining Plaintiffs . . . have standing to challenge the constitutionality of the policy.” Order, ECF No. 189, at 4. However, the Court did not address the authority cited by Defendants demonstrating that Plaintiffs’ burden

25

to establish standing is significantly more exacting at the summary judgment stage than at the preliminary injunction stage. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Even more problematic is the Court’s failure to address

26

Defendants’ entitlement to expert discovery. See Fed. R. Civ. P. 26(b)(4)(A) (“A party may depose any person who has been identified as an expert . . . . If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted

only after the report is provided.”). Indeed, the Government is unaware of any circumstances where Rule 56(d)

27

discovery has been denied where a plaintiff moves for summary judgment early in the case, relies upon declarations from

fact and expert witnesses, and the Court has not yet entered a scheduling order. If Rule 56(d) discovery were ever

28

appropriate, it would be in these circumstances.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 6 of 29

1 issues of material fact.” Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th

2 Cir. 2016). Viewing the evidence in a light most favorable to Defendants, and because there are a

3 number of genuine disputes of material fact, the summary judgment motions must be denied.

4

A. Whether Plaintiffs Have Suffered Cognizable Injuries Is A Genuine Issue Of

Fact In Dispute.

5 Plaintiffs bear the burden of establishing jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S.

6 555, 561 (1992) (citations omitted). Although this Court previously concluded that the Plaintiffs had

7 standing for purposes of their preliminary injunction motion, Plaintiffs’ burden on summary

8 judgment is significantly more exacting. See id. Now, Plaintiffs “can no longer rest on . . . ‘mere

9

allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’” Id. (citation omitted).

10

Standing is “an indispensable part of each plaintiff’s case.” Id. Each Plaintiff bears the

11

burden of establishing that they have standing in their own right to pursue their claims. Ellis v. City

12

of La Mesa, 990 F.2d 1518, 1523 (9th Cir. 1993). In addition, “[a]t least one plaintiff must have

13

standing to seek each form of relief requested in the complaint.” Town of Chester. v. Laroe Estates, Inc.,

14

137 S. Ct. 1645, 1650–51 (2017).

15

Plaintiffs allege three primary categories of injuries. First, four Plaintiffs allege that they have

16

been injured by the accessions policy. Second, Plaintiffs who are current service members allege

17

that they have been injured because they may be discharged from the military in the future based on

18

their transgender status. Third, one Plaintiff alleges that he will be injured because he will be barred

19

from receiving sex reassignment surgery.2

20

1. There Are Numerous Genuine Issues Of Disputed Material Fact Concerning

21

Whether Plaintiffs Have Standing to Challenge The Accession Policy.

22

Four Plaintiffs contend that they were denied the opportunity to compete to access into the

23 military on an equal basis. Although Defendants were not provided an opportunity to test assertions

24

25

2 In addition, Plaintiffs each allege that they have been harmed by a stigma resulting from allegedly unconstitutional discrimination. See Pls.’ Mot., ECF No. 129, at 7–8. But that sort of stigmatic injury “accords a basis for standing only

26

to those persons who are personally denied equal treatment.” Allen v. Wright, 468 U.S. 737, 755 (1984) abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). As discussed below, because Plaintiffs

have not shown that they themselves have been subject to discriminatory treatment, they cannot rely upon a claim of

27

stigmatic injury. Instead, “stigmatic injury…requires identification of some concrete interest with respect to which

respondents are personally subject to discriminatory treatment,” and “[t]hat interest must independently satisfy the

28

causation requirement of standing doctrine.” Id. at 757 n.22. No such interest exists here.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 7 of 29

1 Plaintiffs made in their declarations through the discovery process, Plaintiffs’ declarations

2 nevertheless fail to establish standing to sue. Plaintiffs have not met their burden at this stage of the

3 litigation to establish an injury in fact traceable to the Interim Guidance that they seek to challenge.

4

As discussed below in Part I.B, when the evidence is viewed in the light most favorable to

5 Defendants, the Interim Guidance provides the terms and operation of the applicable policy

6 governing service by transgender individuals. Plaintiffs have not shown that the Interim Guidance

7 denies them an opportunity to access into the military that they would previously have been afforded.

8

To establish that they suffered cognizable injuries by the applicable accession policy,

9 Plaintiffs must show that the accession policy in the Interim Guidance denied them an opportunity

10 to access into the military that they previously possessed. Thus, Plaintiffs must show that they are

11 “able and ready” to access into the military under the Carter policy that preceded the Interim

12 Guidance. See, e.g., Carroll v. Nakatani, 342 F.3d 934, 942 (9th Cir. 2003). But the Carter policy,

13 which is currently in effect as the result of the Court’s preliminary injunction, presumptively

14 disqualifies an individual from access into the military if the individual has a history of medical

15 treatment associated with gender transition. Such an individual may access into the military only if

16 (a) the applicant has completed all medical treatment associated with the transition, (b) the applicant

17 has been stable in the preferred gender for 18 months, and (c) the applicant, if receiving cross-sex

18 hormone therapy post-transition, has been stable on such therapy for at least 18 months. Decl. of

19 Ryan Parker, Exh. 1 (DTM-16-005).

20

Plaintiffs Ryan Karnoski, D.L., and Conner Callahan have not presented specific facts to

21 establish that they are eligible to access into the military under the Carter policy. They admit that

22 they are receiving or have received medical treatment associated with gender transition. Decl. of

23 Ryan Karnoski, ECF No. 130, ¶ 10; Decl. of D.L., ECF No. 132, ¶ 8; Decl. of Connor Callahan,

24 ECF No. 137, ¶ 8. They are therefore presumptively disqualified under the Carter policy. See DTM-

25 16-005. D.L. concedes that he has not been stable in his preferred gender for 18 months after the

26 completion of medical treatment associated with his transition. D.L. Decl. ¶ 5. And Karnoski and

27 Callahan have not proffered any evidence that they satisfy the Carter policy requirements to

28 overcome disqualification. When viewed in light most favorable to Defendants, this record contains

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 8 of 29

1 genuine issues of disputed fact whether Karnoski and D.L. have even completed all medical 2 treatment associated with their transitions, and whether Karnoski and Callahan have been stable in 3 their preferred gender for at least 18 months, or have been stable for at least 18 months if receiving

4 cross-sex hormone therapy. Thus, Karnoski, D.L., and Callahan have not satisfied their burden to

5 prove that they have standing to pursue their claims. See Clapper, 568 U.S. at 408.

6

Plaintiff Staff Sergeant Cathrine Schmid also has not established that she was deprived of an

7 opportunity to become a warrant officer because of the Interim Guidance’s accessions policy. Decl.

8 of Cathrine Schmid, ECF No. 131, ¶¶ 29–30. The record establishes that any hold that may have

9 been placed on her application packet has been lifted, and her packet was advanced to the selection

10 board for consideration. See Decl. of Maria Martinez, ¶ 4. The board selection process, which is

11 highly competitive, is prescribed by Army Pamphlet 601-6, and does not take a soldier’s transgender

12 status into consideration. Id. The board considered Schmid’s application in February 2018, and did

13 not select her. Id. ¶ 4. Schmid accordingly cannot establish any cognizable injury from the Interim

14 Guidance. At a minimum, the evidence that she was not selected raises genuine issues of material

15 fact about her standing that preclude summary judgment on her claims.

16

2. There Are Numerous Genuine Issues Of Disputed Material Fact Concerning Whether Plaintiffs Have Suffered Cognizable Injuries Caused By The Interim

17

Guidance.

18

Plaintiffs also have not met their burden to establish cognizable injuries from the Interim

19 Guidance’s policies concerning retention and medical care. At a minimum, genuine issues of

20 disputed material fact preclude summary judgment on their claims.

21

Plaintiff Schmid, who has failed to establish a cognizable injury from the accessions policy,

22 also has failed to establish a cognizable injury from the retention policy. She states that the Interim

23 Guidance has affected her “ability to maintain employment in the military,” Schmid Decl. ¶ 25, but

24 Schmid is not, and will not be, subject to separation or discharge based on her transgender status

25 under the Interim Guidance, see Decl. of Timothy McCracken, ECF No. 70, ¶ 2. Nor will she be

26 denied re-enlistment due to her transgender status. Id. Thus, Schmid has identified no specific facts

27 to support her claims of injury from the retention policy in the Interim Guidance. At a minimum,

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 9 of 29

1 there is at least a genuine dispute about whether Schmid has suffered a cognizable legal injury from

2 that policy.

3

Plaintiff Chief Warrant Officer Three Lindsey Muller has failed to meet her burden to

4 establish standing to challenge both the retention and medical treatment policies in the Guidance.

5 With respect to the retention policy, although Muller contends that she is “afraid of losing [her] job”

6 in the Army, Decl. of Lindsey Muller, ECF No. 133, ¶ 3, her commanding officer has stated that

7 Muller is not, and will not be, subject to separation or discharge based on her transgender status

8 under the Interim Guidance, see Decl. of Jonathan Easley (Oct. 16, 2017), ECF No. 72, ¶ 3. And the

9 parties dispute whether Muller’s treatment plan includes any medically necessary surgical treatments

10 that have been, or would be, denied under the Guidance. Compare Muller Decl. ¶¶ 21–22 (declaring

11 that Muller has not had surgeries required as part of her transition), with Decl. of Jonathan Easley

12 (Feb. 26, 2018), ¶¶ 3–4 (declaring that Muller “has completed all of the medically necessary surgical

13 treatments approved as part of her medical treatment plan” and that she “may request an

14 evaluation . . . to determine if she is medically qualified to resume flying duties”). There is, at a

15 minimum, a genuine dispute whether Muller has suffered any cognizable injury from the Interim

16 Guidance, and summary judgment is not warranted.

17

Likewise, Plaintiff Petty Officer First Class Terece Lewis has not satisfied her burden of

18 establishing standing to sue. Lewis is an active duty sailor, who claims that the Interim Guidance

19 would affect her ability to re-enlist. Decl. of Terece Lewis, ECF No. 134, ¶¶ 3, 8, 26. But the Interim

20 Guidance directs that “[a]n otherwise qualified transgender Service member whose term of service

21 expires while this Interim Guidance remains in effect, may, at the Service member’s request, be

22 reenlisted in service under existing procedures.” Interim Guidance (Sept. 14, 2017), ECF No. 149-

23 3. It also directs that “no action may be taken to involuntarily separate or discharge an otherwise

24 qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender status.”

25 Id. And Lewis’s commander confirmed that, consistent with the Interim Guidance, she will not be

26 involuntarily separated due to her transgender status. Decl. of Gregory Huffman, ECF No. 73, ¶ 3.

27 Lewis thus has not presented specific facts to support a cognizable legal injury from the retention

28 policy, or there is at least a genuine dispute about the facts underlying her claim of injury.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 10 of 29

1

Plaintiff Petty Officer Second Class Philip Stephens also fails to establish cognizable injury

2 from the retention and medical care policies. Stephens, an active duty sailor, states that the Interim

3 Guidance places his military career in “jeopardy,” Decl. of Philip Stephens, ECF No. 135, ¶¶ 3, 26,

4 but again the Interim Guidance directs that he will not be involuntarily separated solely on the basis

5 of his transgender status, and that he may re-enlist under existing procedures. See Interim Guidance,

6 ECF No. 149-3; Decl. of Nicolas Good, ECF No. 74, ¶ 5 (stating that Stephens will not face

7 separation due to his transgender status under the Interim Guidance).

8

There are also genuine issues of material fact in dispute regarding Petty Officer Second Class

9 Megan Winters’ standing. Winters bases her claims of injury on a separation notice she received, but

10 her commanding officer has explained that such a separation notice was in error and that Winters is

11 not pending separation or discharge due to her transgender status. Decl. of Susan Breyerjoyner,

12 ECF No. 75, ¶ 6. Winters’ commanding officer has further stated that no member of her command

13 will face separation on the basis of their transgender status absent a change in existing policy, and

14 no member of her command will be denied re-enlistment due to transgender status. Id.

15

Finally, Plaintiff Jane Doe has not satisfied her burden to prove standing to sue. The Interim

16 Guidance directs the military to ensure that no service member is separated or denied re-enlistment

17 due to his or her transgender status. Interim Guidance, ECF No. 149-3. Doe’s conclusory

18 statements to the contrary are speculative and insufficient to establish a cognizable injury from the 19 retention policy at the summary judgment stage. See Cafasso v. Gen. Dynamics, 637 F.3d 1047, 1061 20 (9th Cir. 2011) (“To survive summary judgment, a plaintiff must set forth non-speculative evidence 21 of specific facts, not sweeping conclusory allegations.”). Likewise, Doe cannot establish standing to 22 challenge the medical treatment policy with speculative statements that she will need surgical 23 procedures as part of her transition. Decl. of Jane Doe, ECF No. 138, ¶ 13. Doe has not provided 24 any foundation to conclude that she is qualified to offer a medical opinion, and her statement is 25 therefore inadmissible.3 See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) (only evidence that 26 would be admissible may be considered in ruling on a motion for summary judgment). Furthermore,

27

3 Had Defendants been given a chance to depose Jane Doe before responding to Plaintiffs’ motion, Defendants could

28

have explored the bases for her conclusory statements. See supra n.1.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 11 of 29

1 her conclusory testimony is contradicted by evidence that medical transition plans do not necessarily

2 include surgical procedures. See Breyerjoyner Decl. ¶ 7. Accordingly, Plaintiff Jane Doe has not

3 established standing for summary judgment purposes.

4

Finally, three Plaintiffs appear to allege that they will be denied medically necessary surgical

5 treatments. Lewis Decl. ¶ 17; Stephen Decl. ¶ 16; Winters Decl. ¶¶ 32–34. As an initial matter, it is

6 clear from the Interim Guidance that no Plaintiff is currently being denied medical treatment.

7 Second, the Presidential Memorandum excepts from the directive to halt funding of sex

8 reassignment surgeries for military personnel those procedures which are “necessary to protect the

9 health of an individual who has already begun a course of treatment to reassign his or her sex.”

10 Presidential Memorandum, 82 Fed. Reg. 41,319. All three Plaintiffs have begun a course of

11 treatment to reassign their sex and, therefore, potentially fall within the exception to the funding

12 directive. Lewis Decl. ¶¶ 13, 16–17; Stephen Decl. ¶¶ 14–16; Winters Decl. ¶¶ 28–31. At this point,

13 it is not clear whether the military will pay for Plaintiffs’ transition-related surgeries after March 2018,

14 but uncertainty is not enough to establish standing or to present the Court with a ripe question of

15 law. If Plaintiffs are ultimately informed that the military will not pay for specific surgeries, they can

16 bring suit at that time. Until that time, the risk that they may be harmed by the sex reassignment

17 surgery directive in the future is not sufficient to establish standing. Cf. Doe v. Trump, 275 F. Supp.

18 3d 167, 203–04 (D.D.C. 2017) (holding that the plaintiffs lacked standing to pursue their medical

19 treatment claims because “the risk of being impacted by the Sex Reassignment Surgery Directive is

20 not sufficiently great to confer standing”).

21

3. The Organizational Plaintiffs And Intervenor Have Not Satisfied Their Burden To Prove Standing To Sue.

22

The organizational Plaintiffs also have not satisfied their burden of establishing standing to

23 sue at this stage in the litigation. To establish associational standing, each plaintiff organization must

24 show: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it

25 seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the

26 relief requested requires the participation of individual members in the lawsuit.” Associated Gen.

27 Contractors of Am. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013). Because the Interim

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 8 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 12 of 29

1 Guidance maintains the status quo, the organizational Plaintiffs cannot identify even a single member 2 who has suffered an injury-in-fact. To the extent they rely upon the individual Plaintiffs who have 3 not established standing for summary judgment purposes, the organizational Plaintiffs have likewise

4 failed to establish standing for their claims.

5

In addition, because none of the individual or organizational plaintiffs has standing, and

6 Washington cannot establish standing in its own right, Washington cannot proceed with this case as

7 an Intervenor. “An intervenor’s right to continue a suit in the absence of the party on whose side

8 intervention was permitted ‘is contingent upon a showing by the intervenor that he fulfills the

9 requirements of Art. III.’” Friends of Wild Swan v. Vermillion, 694 F. App’x 475, 476 (9th Cir. 2017)

10 (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)). Washington has not even attempted to satisfy

11 its burden to demonstrate standing to sue. Rather, Washington simply asserts, without support from

12 a declaration, certain state interests that it seeks to vindicate through this litigation, and notes that

13 the Court recognized these interests as sufficient to support intervention. Int.’s Mot., ECF No. 150,

14 at 4. Yet in granting Washington’s motion to intervene, the Court expressly declined to decide

15 whether Washington possessed standing to sue. Order, ECF No. 101 at 3 n.1. And Washington

16 has come forward with no admissible evidence of any cognizable injury caused by an operative policy

17 of the Defendants that is redressable by the Court.

18

B. Genuine Disputes of Material Fact Exist Concerning Which Policy Is Applicable In The Absence of a Preliminary Injunction.

19

Perhaps recognizing that they cannot show any cognizable injury from the Interim Guidance,

20 Plaintiffs argue that the President’s Twitter statement and the Presidential Memorandum constitute

21 a “ban” on service in the military by transgender individuals and that it is this “ban” that they

22 challenge. But it is beyond reasonable dispute from the face of the Interim Guidance that it would

23 be the applicable policy concerning accession and retention in the absence of the Court’s preliminary

24 injunction, and plaintiffs have suffered no legally cognizable injury from that Guidance. Until a final

25 policy is issued, as contemplated by the Presidential Memorandum, there is no “ban” for Plaintiffs

26 to challenge or for this Court to review. At a minimum, there is a genuine issue of disputed material

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 9 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 13 of 29

1 fact about the currently effective policy that necessitates denial of the summary judgment motions.4

2

Plaintiffs’ claims rest on the faulty assumptions that the President has mandated that

3 transgender individuals who are currently serving be involuntarily discharged. Pls.’ Mot. at 5–6.

4 Although Plaintiffs acknowledge that the President directed Secretary Mattis to study the issue, they

5 argue that the “unequivocal purpose” of the study is “to implement the policy and directives in the

6 Presidential Memorandum.” Id. at 11 (citation omitted). That argument, however, is misplaced.

7

The Memorandum directs Secretary Mattis to study future service by transgender individuals

8 and does not predetermine the outcome of that study. The President stated in the Memorandum

9 that, in his judgment, “further study is needed to ensure . . . that terminating the Departments’

10 longstanding policy and practice [regarding military service by transgender individuals] would not

11 hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources . . . .”

12 Presidential Memorandum, 82 Fed. Reg. 41,319 (Aug. 25, 2017). Based on that judgment, the

13 President directed the Secretaries of Defense and Homeland Security to maintain the currently

14 effective policy regarding accession of transgender individuals into the military “until such time as a

15 sufficient basis exists upon which to conclude that terminating the policy and practice would not

16 have the negative effects discussed above.” Id. He then directed the Secretary of Defense, in

17 consultation with the Secretary of Homeland Security, to submit an implementation plan by February

18 21, 2018, affording the Secretary of Defense broad discretion to determine “what steps are

19 appropriate and consistent with military effectiveness and lethality, budgetary constraints, and

20 applicable law” in formulating that plan. Id. Critically, the President directed the Secretary of

21 Defense to “determine how to address transgender individuals currently serving in the United States

22 military” and stated unequivocally that, “[u]ntil the Secretary has made that determination, no action

23 may be taken against such individuals” because of their transgender status. Id.

24

Secretary Mattis’s response to this Memorandum makes clear that no accession and retention

25 policy has yet been decided. First, in response to the Presidential Memorandum, Secretary Mattis

26 announced that he was assembling a panel of experts who would bring “mature experience, most

27

4 Of course, any concern about which of these documents reflects applicable policy will be moot upon issuance of the

28

ultimate policy and, as discussed in Part I.C., below, this alone is a basis to defer or deny summary judgment.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 10 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 14 of 29

1 notably in combat and deployed operations, and seasoned judgment” to the task of providing advice

2 and recommendations regarding future policies concerning military service by transgender

3 individuals. Parker Decl. Exh. 2 (Statement of Secretary Mattis, Release No: NR-312-17). Secretary

4 Mattis explained that the panel would “thoroughly analyze all pertinent data, quantifiable and non-

5 quantifiable.” Id. Then, on September 14, 2017, Secretary Mattis issued a Memorandum and Interim

6 Guidance explaining that “[c]onsistent with military effectiveness and lethality, budgetary

7 constraints, and applicable law, the implementation plan will establish the policy, standards and

8 procedures for transgender individuals serving in the military.” Interim Guidance, ECF No. 149-3.

9 Secretary Mattis noted that the Deputy Secretary of Defense and Vice Chairman of the Joint Chiefs

10 of Staff, supported by the panel of experts, would provide him with recommendations “supported

11 by appropriate evidence and information.” Id. And he stated that the Interim Guidance would take

12 effect immediately and “will remain in effect until I promulgate DoD’s final policy in this matter.”

13 Id. Put simply, Secretary Mattis initiated a full policy-making process that is being led by some of

14 the most senior officials at the Departments of Defense and Homeland Security.5

15

The Interim Guidance was the applicable DoD policy concerning accession and retention in

16 effect at the time the Court entered the preliminary injunction and Plaintiffs’ arguments to the

17 contrary are mistaken. At a minimum, when viewed in the light most favorable to Defendants, the

18 Interim Guidance creates a genuine dispute of material fact regarding the applicable policy governing

19 military service by transgender individuals. For this reason alone, Plaintiffs’ and Intervenor’s

20 motions for summary judgment must be denied.

21

C. Judicial Economy Is Not Served By Summary Judgment Proceedings at This Stage.

22

The Court should deny the motions for the additional reason that judicial economy is not

23 served by resolving them at this early stage in the litigation and while policy concerning the service

24 of transgender individuals in the military is still being developed. Plaintiffs and Intervenor made a

25 strategic decision to file summary judgment motions early in the litigation, with the awareness that

26 the policy concerning the service of transgender individuals in the military was still being developed.

27

5 That policy-making process is now complete, and Secretary Mattis has transmitted his policy recommendation to the

28

President. Defendants will inform Plaintiffs and the Court promptly after a decision is publicly announced.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 11 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 15 of 29

1 But the Court does not yet have before it the final policy concerning service by transgender persons

2 or the justifications for that final policy.

3

A judicial decision at this stage would only entangle the Court in an abstract disagreement

4 over a non-final policy that will be superseded shortly. Once the final policy is in place, the Court

5 will be in a position to assess what, if any, effect this policy has on Plaintiffs and whether Plaintiffs’

6 lawsuit may proceed. But any challenge to the non-final policy now in place will be moot. See Burke

7 v. Barnes, 479 U.S. 361, 363 (1987) (question of whether President’s pocket veto prevented bill from

8 becoming law rendered moot because bill expired during pendency of appeal); U.S. Dep’t of Treasury

9 v. Galioto, 477 U.S. 556, 559–60 (1986) (amendment to federal statute rendered case moot); Kremens

10 v. Bartley, 431 U.S. 119, 128–29 (1977) (lawsuit concerning commitment of minors is moot once

11 statute is repealed); Gulf of Me. Fisherman’s All. v. Daley, 292 F.3d 84, 88 (1st Cir. 2002) (“The

12 promulgation of new regulations and amendment of old regulations are among such intervening

13 events as can moot a challenge to the regulation in its original form.”); Bunker Ltd. P’ship v. United

14 States, 820 F.2d 308, 312 (9th Cir. 1987) (new legislation which superseded prior law rendered

15 arguments based on superseded law moot). And any decision based on the previous policy, if

16 appealed, likely would be vacated as moot. See, e.g., Galioto, 477 U.S. at 560 (1986) (vacating and

17 remanding decision where Congress amended challenged law, removing the asserted

18 unconstitutionality, which thereby mooted the dispute under United States v. Munsingwear, Inc., 340

19 U.S. 36, 39 (1950)); Log Cabin Republicans v. United States, 658 F.3d 1162, 1168 (9th Cir. 2011) (vacating

20 the district court decision when Congress amended the statute during the pendency of the appeal);

21 Madison v. Tulalip Tribes of Wash., 163 F. App’x 499, 500 (9th Cir. 2006) (vacating district court decision

22 under Munsingwear, Inc. because controversy over concerned permit became moot once permit

23 expired). Judicial economy would be best served by denying or deferring summary judgment and

24 waiting for the new policy to be issued.

25

II. Plaintiffs and Intervenor Have Not Met Their Burden of Proving That the Applicable Policy Violates the Constitution.

26

There are several additional reasons why the Court should deny the summary judgment

27 motions. As a preliminary matter, Plaintiffs and Intervenor ignore the considerable deference that

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 12 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 16 of 29

1 is owed to the President and the military in making military personnel decisions. Both the decision

2 to conduct further study on a policy that could have adverse effects on the military and the decision

3 to issue the Interim Guidance that maintains the status quo during the pendency of the study are

4 reasonable and fully consistent with the Constitution. Furthermore, they have not met their burden

5 to show that the applicable policy—the Interim Guidance—violates their constitutional rights.

6

A. Considerable Deference is Owed to Military Personnel Decisions.

7

Plaintiffs’ and Intervenor’s constitutional claims fail because considerable deference is owed

8 to the President and the DoD in making military personnel decisions. With regard to the President’s

9 decisions, “Courts have traditionally shown the utmost deference to Presidential responsibilities” in

10 the field of “military and national security affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 529–30 (1988)

11 (citation omitted). After all, “[t]he complex[,] subtle, and professional decisions as to the

12 composition . . . of a military force are . . . subject always to civilian control of the Legislative and

13 Executive Branches”; indeed, “[i]t is this power of oversight and control of military force by elected

14 representatives and officials which underlies our entire constitutional system.” Gilligan v. Morgan, 413

15 U.S. 1, 10 (1973).

16

Along with the deference shown to the Commander in Chief, courts also give substantial

17 deference to decisions made by military authorities. Military authorities “have been charged by the

18 Executive and Legislative Branches with carrying out our Nation’s military policy,” Goldman v.

19 Weinberger, 475 U.S. 503, 507–08 (1986), under broad mandates, see United States v. O’Brien, 391 U.S.

20 367, 377 (1968). To effectuate its mission, the military requires “overriding demands of discipline

21 and duty” that make it “a specialized society separate from civilian society.” Parker v. Levy, 417 U.S.

22 733, 743–44 (1974). The military’s distinct position also sets it “apart from and outside of many of

23 the rules that govern ordinary civilian life in our country.” Greer v. Spock, 424 U.S. 828, 843 (1976)

24 (Powell, J., concurring). Given its unique position and the notion that courts are “ill-equipped to

25 determine the impact upon discipline that any particular intrusion upon military authority might

26 have,” Chappell v. Wallace, 462 U.S. 296, 305 (1983), courts grant great deference to the judgment of

27 the military, see, e.g., Rostker v. Goldberg, 453 U.S. 57, 64–67 (1981); Orloff v. Willoughby, 345 U.S. 83,

28 93–94 (1953).

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 13 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 17 of 29

1

The special deference to the military applies even in the face of constitutional claims. For

2 example, in Orloff, the Supreme Court held that petitioner could not challenge the Army’s failure to

3 commission him when he declined, on grounds of a Fifth Amendment privilege against self-

4 incrimination, to say whether he was a member of the Communist Party. 345 U.S. at 91. Similarly,

5 in Goldman, the Court rejected a claim that application of an Air Force regulation that precluded

6 plaintiff from wearing his yarmulke violated the First Amendment’s protection of the free exercise

7 of religion. 475 U.S. at 509–10. In Parker, the Court rejected a First Amendment “overbreadth”

8 challenge to certain articles of the Uniform Code of Military Justice, holding that “[w]hile the

9 members of the military are not excluded from the protection granted by the First Amendment, the

10 different character of the military community and of the military mission requires a different

11 application of those protections.” 417 U.S. at 758; see also Rostker, 453 U.S. at 64–67 (rejecting an

12 equal protection challenge to the requirement that males, but not females, must register for the draft).

13

Plaintiffs do not dispute that substantial deference is owed to military policy decisions. See

14 Pls.’ Mot. at 15. Instead, Plaintiffs merely repeat the Court’s erroneous conclusion that the policy

15 concerning military service by transgender individuals is not entitled to deference in this case because

16 it was made without “‘considered reason or deliberation.’” Id. (quoting Order, ECF No. 103, at 18); 17 see also Int.’s Mot. at 13–14. That argument is without merit.6

18

By focusing on the President’s statement on Twitter, Plaintiffs fail to recognize that one

19 month before the statement, DoD had already announced that more study was needed on the issue

20 of transgender military service. On June 30, 2017, before the issuance of the Twitter statement or

21 the Presidential Memorandum, Secretary Mattis “approved a recommendation by the services to

22 defer accessing transgender applicants into the military” until January 1, 2018. Parker Decl. Exh. 3

23 (Statement by Chief Pentagon Spokesperson Dana W. White on Transgender Accessions, NR-250-

24 17). Based on input he received from the Service Chiefs and Secretaries, Secretary Mattis determined

25 that DoD and the services needed “additional time to evaluate more carefully the impact of such

26 accessions on readiness and lethality.” Parker Decl. Exh. 4 (Memorandum Regarding Accessions of

27

6 Of course, substantial deference also would be owed to the military’s forthcoming policy, and it would be clear error

for the Court to enter summary judgment before consideration of that policy and deference to the basis for that policy.

28

See Winter v. NRDC, Inc., 555 U.S. 7, 26–31 (2008).

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 14 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 18 of 29

1 Transgender Individuals into the Military Services (June 30, 2017)). Secretary Mattis stated that his

2 “intent [was] to ensure that [he] personally [has] the benefit of the views of military leadership and

3 of the civilian officials who are now arriving at the Department” before changing DoD’s

4 longstanding policy of prohibiting transgender individuals from accessing into the military. See id.

5 Thus, well before the President made statements on Twitter, Secretary Mattis received counsel from

6 the Service Chiefs and Secretaries and determined that additional time was needed to study whether

7 accessions of transgender individuals into the military would impact readiness and lethality. See id.

8 The Secretary’s decision to continue studying the issue after he received counsel from the Service

9 Chiefs and Secretaries was made with considered reason and deliberation and is thus entitled to

10 substantial deference.

11

The subsequent Presidential Memorandum extended the accessions deadline indefinitely

12 until there appears a sufficient basis to abandon the longstanding accessions policy. Presidential

13 Memorandum, 82 Fed. Reg. 41,319. Secretary Mattis then issued the Interim Guidance, which

14 maintains the status quo for military service by transgender individuals until a final policy is enacted.

15 That reasonable, non-disruptive decision to maintain a longstanding policy while DoD continues

16 studying the issue is also entitled to substantial deference.

17

B. The Applicable Policies Are Consistent With Constitutional Guarantees.

18

As set forth above, DoD is entitled to substantial deference for the applicable policies

19 concerning service by transgender individuals in the military. And as Defendants have previously

20 argued, the Government believes that heightened scrutiny does not apply in this context. Defs.’

21 Mot., ECF No. 69, at 28–30. Although this Court disagreed, we again reiterate our view that

22 heightened scrutiny is not the proper standard of review, for purposes of preserving the issue for

23 further review.7 In any event, the Interim Guidance maintains the status quo and does not violate the

24 Constitution. Indeed, Plaintiffs offer no argument to the contrary.

25

26

27

7 Although Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), and the other cases cited by Plaintiffs, see Pls.’ Mot. at 16–

18, could be interpreted as holding to the contrary, these cases are factually distinguishable and, in all events, Defendants

28

preserve the issue for further review.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 15 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 19 of 29

1

1. The Applicable Policies Do Not Violate Equal Protection.

2

a. Retention of Current Service Members

3

Plaintiffs’ arguments that the Interim Guidance subjects them to unequal treatment is

4 misplaced. The Interim Guidance explicitly directs that “transgender service members are subject

5 to the same standards as any other Service member of the same gender.” Interim Guidance, ECF

6 No. 149-3. Indeed, Defendants have maintained throughout this litigation that neither the August

7 25, 2017 Presidential Memorandum nor any implementing guidance permit the discharge of

8 currently serving transgender soldiers. See Defs.’ Mot. at 15–16; Defs.’ Reply, ECF No. 90, at 2–5.

9 “A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.”

10 Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 707 (9th Cir. 1997). Plaintiffs Schmid, Muller, Lewis,

11 Stephens, Winters, and Doe, who currently serve in the military, provide no evidence that they have

12 been treated unequally under the Interim Guidance. To the contrary, Defendants have submitted

13 declarations stating that, consistent with the Interim Guidance, these individuals will not be

14 discharged from the military based on their transgender status. See McCracken Decl. ¶ 2; Easley

15 Decl. (Oct. 16, 2017) ¶ 3; Good Decl. ¶ 5; Breyerjoyner Decl. ¶ 6; Huffman Decl. ¶ 3. Because the

16 applicable policy does not classify service members based on transgender status, and even prohibits

17 disparate treatment of existing service members based on transgender status, Plaintiffs have not met

18 their burden of showing that the applicable policy concerning service of transgender individuals in

19 the military violates their equal protection rights.

20

b. Surgery

21

Congress has provided the Secretary of Defense and the service secretaries the discretion to

22 set the level of care provided at military facilities. 10 U.S.C. § 1074(a)(1); see also 10 U.S.C.

23 § 1073(a)(b). Thus, DoD has broad discretion to shape the scope of services based on medical,

24 policy, and military readiness concerns. Similarly, the Secretary of Defense has broad discretion to

25 authorize a service member to obtain health care at a private health care facility. 10 U.S.C.

26 § 1074(c)(1). However, Congress has specifically limited the Secretary’s authority to pay for surgery

27 in non-DoD facilities for “sex gender changes,” but this is subject to “such exceptions as the

28 Secretary of Defense considers necessary,” as long as the waiver is based on a case-by-case medical

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 16 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 20 of 29

1 determination that it would be necessary and appropriate for the patient and not “elective private

2 treatment.” 10 U.S.C. §§ 1074(c)(2)(A), 1079(a)(11), 1074(c)(1). And even the Carter policy permits

3 sex-reassignment surgeries only on a “case-by-case basis.” Parker Decl. Exh. 1 § 4.

4

Similarly, the both Interim Guidance and the Presidential Memorandum provide that “no

5 new sex reassignment surgical procedures for military personnel will be permitted after March 22,

6 2018, except to the extent necessary to protect the health of the individual who has already begun a

7 course of treatment to reassign his or her sex.” Interim Guidance, ECF No. 149-3; accord Presidential

8 Memorandum § 2(b). Thus, the relevant policies restate the restrictions already existing in Title 10

9 but provides for the possibility of a waiver when the Secretary of Defense deems the procedure

10 necessary to protect the health of an individual who has already begun a course of treatment. And

11 any difference between the treatment of sex-reassignment surgery under the Carter policy and the

12 challenged policy—both of which authorize the procedure only on a case-by-case basis—is

13 ultimately a matter of line-drawing that should not be second-guessed by the Judiciary. Because

14 Plaintiffs may still receive waivers for medically necessary treatment like any other service member,

15 Plaintiffs have not met their burden of showing that the applicable policy concerning service of

16 transgender individuals in the military violates their equal protection rights.

17

c. Accessions

18

Given the considerable deference due to military personnel decisions, Plaintiffs and

19 Intervenor cannot show that they are entitled to summary judgment concerning their equal

20 protection challenge to the longstanding accessions policy. As both Secretary Mattis and the

21 President have explained, there were significant concerns that abandoning this policy could “hinder

22 military effectiveness and lethality, disrupt unit cohesion, or tax military resources.” Presidential

23 Memorandum § 1(a); see also Parker Decl. Exh. 4 (stating that “additional time [was needed] to

24 evaluate more carefully the impact of such accessions on readiness and lethality”). Although

25 Plaintiffs and Intervenor claim that these rationales are a pretext for animus, the limited record in

26 this case does not support that claim.

27

The military’s longstanding accessions policy—maintained by both the Presidential

28 Memorandum and Interim Guidance—rests on the reasonable concern that at least some

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 17 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 21 of 29

1 transgender individuals, including those who have undergone sex reassignment surgical procedures, 2 suffer from medical conditions or have undergone treatments that could impair the performance of 3 their military duties or risk such impairments in the future. See Parker Decl. Exh. 5 (DODI 6130.03).

4 Even the new accessions policy announced in 2016 acknowledged the legitimacy of this concern by 5 providing that a history of gender dysphoria, medical treatment associated with gender transition, 6 and sex reassignment surgery were disqualifying unless an applicant could prove that he had avoided 7 complications for an 18-month period—a more lax standard than for other similar conditions.

8 Parker Decl. Exh. 1; see e.g., Parker Decl. Exh. 5 (DoDI 6330.03 at Encl. 4, ¶ 9.g) (disqualifying

9 applicants with a history of depressive disorder unless applicant has been stable for the past 36

10 months). DoD’s expert panel was tasked with studying the relevant medical standards applicable to

11 transgender persons, and in the interim it was not irrational for the President to maintain the status

12 quo pending that panel’s review.

13

Also, the longstanding accessions policy rests on the reasonable conclusion that these

14 conditions may limit the ability of transgender individuals to deploy and thus limit the readiness and

15 lethality of the force. For decades, military professionals indicated that one basis for the policy was

16 that complications associated with hormone therapy and sex-change procedures could impair

17 soldiers from serving around the globe. See, e.g., DeGroat v. Townsend, 495 F. Supp. 2d 845, 850–52

18 (S.D. Ohio 2007) (discussing testimony of military doctor); Doe v. Alexander, 510 F. Supp. at 902, 905

19 (D. Minn. 1981) (discussing affidavit of Brigadier General). Although Plaintiffs rely on the RAND 20 Report, see Pls.’ Mot. at 17, that report acknowledges that medical treatment would limit deployment 21 capabilities, RAND Report 39–42, ECF No. 143-3. For example, the RAND report specifically 22 noted that hormone treatments are a common treatment option for gender dysphoria, id. at 6, and 23 that such treatments can leave service members ineligible for deployment, id. at xiv. Finally, in June 24 2017—before the President’s Twitter statement or the issuance of the Presidential Memorandum— 25 Secretary Mattis consulted with the Service Chiefs and Secretaries about the accessions policy and 26 determined that DoD needed additional time to study the impact of accession of transgender 27 individuals into the military on the overall readiness and lethality of the force. Parker Decl. Exh. 4.

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 18 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 22 of 29

1 Plaintiffs and Intervenor have provided no evidence to dispute Secretary Mattis’ determination that

2 more study was needed on these issues.

3

In addition, it is undisputed that changing the accessions policy would impose costs on the

4 military. Although Plaintiffs isolate one of those costs—“transition-related care”—and dismiss it as 5 “budget dust,” Pls.’ Mot. at 20, that ignores other costs associated with their desired policy change. 6 See, e.g., Decl. of Lernes Hebert, ECF No. 107, ¶ 10 (discussing costs associated with changing an 7 accessions policy). Also, the military has the freedom to choose “among alternatives,” Rostker, 453

8 U.S. at 71, which includes the ability to decide how best to spend its money. At a minimum, the

9 military is entitled to make the reasonable judgment that spending the millions of dollars necessary

10 to accommodate transgender individuals would more effectively accomplish its “primary

11 business”—in other words, “to fight or be ready to fight wars should the occasion arise.” Id. at 70

12 (citation omitted).

13

Moreover, the President could reasonably conclude that the longstanding accessions policy

14 furthers “unit cohesion.” Presidential Memorandum § 1(a). The RAND Report acknowledged that

15 “[a] key concern in allowing transgender personnel to serve openly is how this may affect unit

16 cohesion—a critical input for unit readiness,” but stated that it did “not have direct survey evidence

17 or other data to directly assess the impact on the U.S. military.” RAND Report at 44. Additionally,

18 although the RAND Report found that transgender service members were less deployable when

19 seeking treatment, it did not appear to consider whether an impact on deployability in itself would 20 affect unit cohesion. See id. at 40, 44–45. Given the limited information presently available, which 21 the RAND Report itself acknowledges, it is reasonable for the President to have concluded that 22 maintaining the accessions policy could rationally further unit cohesion, a matter that implicates 23 complex and significant privacy issues and that the matter warranted further study by military 24 officials. For example, a departure from that policy could complicate the operation of sex-based 25 standards in the areas of housing and physical training. Cf. United States v. Virginia, 518 U.S. 515, 550 26 n.19 (1996). In any event, it is not the role of the judiciary to second-guess a Commander in Chief’s 27 judgment in this regard. As “the Supreme Court has indicated,” “military decisions and assessments

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 19 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 23 of 29

1 of morale, discipline, and unit cohesion . . . are well beyond the competence of judges.” Bryant v.

2 Gates, 532 F.3d 888, 899 (D.C. Cir. 2008) (Kavanaugh, J., concurring).

3

In sum, Plaintiffs and Intervenor are not entitled to summary judgment on the accessions

4 policy because Secretary Mattis’ and the President’s decisions to maintain the status quo while the

5 military studies the policy on service by transgender individuals easily passes constitutional muster—

6 particularly in light of the limited evidence in the record and the deference owed the Executive in

7 this area.

8

2. The Applicable Policies Do Not Violate Due Process.

9

Plaintiffs’ and Intervenor’s substantive due process claim fails for essentially the same reasons

10 as their equal protection claim. Plaintiffs and Intervenor fail to show how Defendants have intruded

11 upon any fundamental liberty interest, even if such interest were cognizable in the military context.

12 See Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The Interim Guidance provides that the

13 currently serving Plaintiffs may not be discharged from the military based on their transgender status

14 and may re-enlist if their terms of service expire. See Interim Guidance, ECF No. 149-3. Moreover,

15 the President and DoD have provided reasons for maintaining the status quo while the military studies

16 the policy on service by transgender individuals that pass constitutional muster under any standard,

17 especially in light of the significant deference courts accord to military judgments regarding the

18 composition of the fighting force. Plaintiffs have therefore failed to show that they are entitled to

19 summary judgment on this claim.

20

3. The Applicable Policies Do Not Violate the First Amendment.

21

Plaintiffs claim that “the Ban constitutes a content-based regulation of speech because it

22 ‘penalizes transgender service members—but not others—for disclosing their gender identity.’” Pls.’

23 Mot. at 22 (quoting Order at 19–20). However, neither the Presidential Memorandum nor the

24 Interim Guidance regulates speech at all, much less on the basis of its content. The Presidential

25 Memorandum does not restrict expression; instead, it directs a further review of the military’s policy

26 concerning accessions and reserves for the military the ability to address the treatment of current

27 transgender service members. Nor have Plaintiffs explained how the Interim Guidance inhibits the

28 expression of their transgender status. Similarly, the accession policy is not directed at restricting the

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 20 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 24 of 29

1 content of expression, but instead merely requires disclosure of information related to medical

2 conditions, such as gender dysphoria, that may bar military service for failure to meet medical

3 standards. See id.

4

Even assuming arguendo that the First Amendment was implicated here, a deferential standard

5 of review applies to regulation of speech in the military context. See Weinberger, 475 U.S. at 507.

6 Regulation of speech in the military survives review if it “restrict[s] speech no more than is reasonably

7 necessary to protect the substantial government interest.” Brown v. Glines, 444 U.S. 348, 355 (1980).

8 Defendants’ current policy on service by transgender persons meets this highly deferential standard

9 because the Interim Guidance does not impede expression by current transgender service members

10 or those seeking accession into the military. Accordingly, Plaintiffs’ summary judgment motion

11 should be denied as a matter of law.

12

III. The Injunctive Relief Plaintiffs Seek Is Inappropriate.

13

The relief Plaintiffs seek—an injunction that would in theory apply to service members

14 worldwide—is inappropriate. See Pls.’ Mot. at 24. Both constitutional and equitable principles

15 require that injunctive relief be limited to redressing a plaintiff’s own cognizable injuries. “The

16 actual-injury requirement [of Article III standing] would hardly serve [its] purpose . . . of preventing

17 courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated

18 harm from one particular inadequacy in government administration, the court were authorized to

19 remedy all inadequacies in that administration.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Equitable

20 principles independently require that an injunction “be no more burdensome to the defendant than

21 necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S.

22 753, 765 (1994) (citation omitted). These constitutional and equitable limits apply with special force

23 to injunctions concerning military policies. See Meinhold v. U.S. Dep't of Def., 34 F.3d 1469, 1473 (9th

24 Cir. 1994) (after district court enjoined DoD “from discharging or denying enlistment to any person

25 based on sexual orientation,” staying injunction to the extent it conferred relief on anyone other than

26 the plaintiff).

27

Thus, any injunction here should be limited to Plaintiffs and not extend to other members

28 or applicants not before this Court. Any cognizable injuries to Plaintiffs would be fully addressed

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 21 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 25 of 29

1 through an injunction concerning their individual ability either to accede into or continue serving in

2 the military. And if other service members or applicants believe they are injured by the policies at

3 issue, they are free to bring their own challenges—and a few have done so. See, e.g., Doe v. Trump,

4 No. 1:17-cv-01587 (D.D.C., Filed Aug. 9, 2017). But to the extent Plaintiffs have a live case or

5 controversy with the government, it is the role of this Court to resolve that case or controversy, not

6 to resolve others that are pending or impending in others courts around the country.

7

Although the Court already has granted Plaintiffs’ motion for a worldwide preliminary

8 injunction, see Order, ECF No. 103, at 23, a worldwide permanent injunction would be even more

9 extraordinary, as it could indefinitely preclude the Executive Branch from taking certain actions

10 related to military policy. See World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., No. 03-CV-

11 8843 LAP RME, 2010 WL 3155176, at *10 (S.D.N.Y. July 30, 2010), aff’d, 694 F.3d 155 (2d Cir.

12 2012) (describing a permanent injunction as an “extraordinary remedy.”) (quotation omitted).

13

Worse, Plaintiffs seek that extraordinary remedy to prevent certain hypothetical adverse

14 personnel actions that have not been taken against them and may never occur. In doing so, they

15 subvert a carefully delineated administrative framework. The military personnel decisions that

16 Plaintiffs speculate they will one day face are ordinarily reviewed by a district court on an

17 administrative record under the Administrative Procedure Act after the military decision has been

18 made. Service members would have the opportunity to raise a constitutional challenge then or

19 through intra-military procedures such as the military corrections boards. See Chappell v. Wallace, 462

20 U.S. 296, 303 (1983). That ordinary administrative framework would provide a more appropriate

21 avenue of relief than the premature intrusion into military affairs they currently seek.

22

For all of these reasons, the injunctive relief Plaintiffs seek is inappropriate.

23

IV. The Court Should Grant Partial Summary Judgment for Defendants on All Claims Brought Against the President.

24

In their complaints, both Plaintiffs and Intervenor name the President as a defendant and

25 seek injunctive and declaratory relief against him for discretionary actions taken in his official

26 capacity. See Am. Compl., ECF No. 30, ¶ 19; Compl., ECF No. 104, ¶ 12. Because the Court has

27 no jurisdiction to impose injunctive or declaratory relief against the President for his official,

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 22 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 26 of 29

1 discretionary conduct, the Court should grant partial summary judgment to Defendants on all of

2 Plaintiffs’ and Intervenor’s claims against the President.

3

The Supreme Court has long held that it has “no jurisdiction of a bill to enjoin the President

4 in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. 475, 501 (1866); id. at 500

5 (“The Congress is the legislative department of the government; the President is the executive

6 department. Neither can be restrained in its action by the judicial department; though the acts of

7 both, when performed, are, in proper cases, subject to its cognizance.”). A “majority of the Justices”

8 reaffirmed this fundamental principle in Franklin v. Massachusetts, 505 U.S. 788 (1992). Swan v. Clinton,

9 100 F.3d 973, 977 (D.C. Cir. 1996). Writing for the plurality, Justice O’Connor stated that it was

10 “extraordinary” that the district court had issued an injunction against the President and two other

11 Government officials. Franklin, 505 U.S. at 802, 806. “At the threshold, the District Court should

12 have evaluated whether injunctive relief against the President was available, and if not, whether

13 appellees’ injuries were nonetheless redressable.” Id. at 803. Concurring in Franklin, Justice Scalia

14 explained that, under Mississippi, courts may impose neither injunctive nor declaratory relief against

15 the President in his official capacity. Id. at 827–28 (noting that such principle is “a functionally

16 mandated incident of the President’s unique office, rooted in the constitutional tradition of the

17 separation of powers and supported by our history”). Just as the President is absolutely immune

18 from official capacity damages suits, so is he immune from efforts to enjoin him in his official

19 capacity. Id. at 827 (“Many of the reasons [the Court] gave in Nixon v. Fitzgerald, [457 U.S. 731, 749

20 (1982)], for acknowledging an absolute Presidential immunity from civil damages for official acts

21 apply with equal, if not greater, force to requests for declaratory or injunctive relief in official-capacity

22 suits that challenge the President’s performance of executive functions”).

23

Consistent with Mississippi and Franklin, courts in this and other circuits have rejected

24 demands to enjoin the President in the performance of his official duties, regardless of the claim.8

25

8 See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 557, 605 (4th Cir.), vacated and remanded on other grounds sub. nom.

26

Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); Int’l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570, 632 (D. Md. 2017);

Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 539–40 (N.D. Cal. 2017), appeal docketed No. 17-16886 (9th Cir. Sept.

27

18, 2017); Settle v. Obama, No. 15-cv-365, 2015 WL 7283105, at *6 (E.D. Tenn. Nov. 17, 2015); Day v. Obama, No. 15-

cv-00671, 2015 WL 2122289, *1 (D.D.C. May 1, 2015); Willis v. Dep’t of Health & Human Servs., 38 F. Supp. 3d 1274,

28

1277 (W.D. Okla. 2014); McMeans v. Obama, No. 11-cv-891, 2011 WL 6046634, at *3 (D. Del. Dec. 1, 2011); Shreeve v.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 23 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 27 of 29

1 For example, in Hawaii v. Trump, Ninth Circuit held that the District Court of Hawaii had abused its

2 discretion in enjoining the President from implementing and enforcing his Executive Order entitled

3 “Protecting the Nation from Foreign Terrorist Entry Into the United States.” 859 F.3d 741, 757,

4 760 (9th Cir. 2017).9 Although the Ninth Circuit upheld the injunction as against other Executive

5 Branch officials, it agreed with the Government that the injunction should not have extended to the

6 President. As that court explained, “Plaintiffs’ injuries can be redressed fully by injunctive relief

7 against the remaining Defendants, and . . . the extraordinary remedy of enjoining the President is not

8 appropriate here.” Id. at 788 (citing Franklin, 505 U.S. at 803).

9

The Mississippi v. Johnson line of cases underscores that the President is not a proper defendant

10 in this case. It is undisputed that Plaintiffs and Intervenor brought suit against the President in his

11 official capacity, challenging discretionary actions he took concerning military policy in his role as

12 Commander in Chief. See Am. Compl., ECF No. 30, ¶ 19; Compl., ECF No. 104, ¶ 12. It is also

13 undisputed that Plaintiffs and Intervenor seek declaratory and injunctive relief against the President.

14 See Am. Compl. at 39; Compl. ¶¶ 39–43. It is further undisputed that Plaintiffs could obtain full

15 relief for their alleged injuries through injunctive relief against the other Defendants in this case.

16 Accordingly, because this Court cannot issue a declaratory judgment or an order enjoining the

17 President for his official, discretionary action, the Court should grant partial summary judgment to

18 Defendants on all of Plaintiffs’ and Intervenor’s claims against the President.10

19

CONCLUSION

20

For the foregoing reasons, the Court should deny Plaintiffs’ and Intervenor’s summary

21 judgment motions and grant Defendants’ cross-motion for partial summary judgment.

22

23

24

Obama, No. 10-cv-71, 2010 WL 4628177, at *5 (E.D. Tenn. Nov. 4, 2010); Anderson v. Obama, No. CIV. PJM 10-17, 2010 WL 3000765, at *2 (D. Md. July 28, 2010); Carlson v. Bush, No. 6:07CV1129ORL19UAM, 2007 WL 3047138, at *3 (M.D.

25

Fla. Oct. 18, 2007); Comm. to Establish the Gold Standard v. United States, 392 F. Supp. 504, 506 (S.D.N.Y. 1975); Nat’l Ass’n of Internal Revenue Emps. v. Nixon, 349 F. Supp. 18, 21–22 (D.D.C. 1972); Reese v. Nixon, 347 F. Supp. 314, 316–17 (C.D.

26

Cal. 1972); S.F. Redevelopment Agency v. Nixon, 329 F. Supp. 672, 672 (N.D. Cal. 1971); Suskin v. Nixon, 304 F. Supp. 71, 72 (N.D. Ill. 1969).

9 Based on subsequent events, the Supreme Court vacated the judgment and remanded the case to the Ninth Circuit

27

with instructions to dismiss the case as moot. Trump v. Hawaii, 138 S. Ct. 377 (2017).

10 For these same reasons, the Court should also dissolve the preliminary injunction “to the extent that the order runs

28

against the President.” Hawaii, 859 F.3d at 788.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 24 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 28 of 29

1

Dated: February 28, 2018

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
BRETT A. SHUMATE Deputy Assistant Attorney General
JOHN R. GRIFFITHS Branch Director
ANTHONY J. COPPOLINO Deputy Director
/s/ Ryan B. Parker RYAN B. PARKER Senior Trial Counsel ANDREW E. CARMICHAEL Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Telephone: (202) 514-4336 Email: ryan.parker@usdoj.gov
Counsel for Defendants

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 25 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

Case 2:17-cv-01297-MJP Document 194 Filed 02/28/18 Page 29 of 29

1

CERTIFICATE OF SERVICE

2

I hereby certify that on February 28, 2018, I electronically filed the foregoing Opposition to

3 Plaintiffs’ and Intervenor’s Motions for Summary Judgment and Defendants’ Cross-motion for

4 Partial Summary Judgment using the Court’s CM/ECF system, causing a notice of filing to be served

5 upon all counsel of record. 6

7 Dated: February 28, 2018

/s/ Ryan Parker

8

RYAN B. PARKER

9

Senior Trial Counsel United States Department of Justice

10

Civil Division, Federal Programs Branch Telephone: (202) 514-4336

11

Email: ryan.parker@usdoj.gov

12

Counsel for Defendants

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ AND INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT - 26 Karnoski, et al. v. Trump, et al., No. 2:17-cv-1297 (MJP)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-4336

 
 Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 1 of 31

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

RYAN KARNOSKI, et al.,

CASE NO. C17-1297-MJP

11

Plaintiffs,

12

v.

13

DONALD J. TRUMP, et al.,

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT;

14

Defendants.

GRANTING IN PART AND

DENYING IN PART

15

DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT

16

17

THIS MATTER comes before the Court on Plaintiffs’ Motion for Summary Judgment

18 (Dkt. No. 129); the State of Washington’s Motion for Summary Judgment (Dkt. No. 150); and

19 Defendants’ Cross-Motion for Partial Summary Judgment (Dkt. No. 194.) Having reviewed the

20 Motions, the Responses (Dkt. Nos. 194, 207, 209), the Replies (Dkt. Nos. 201, 202, 212) and all

21 related papers, and having considered arguments made in proceedings before the Court, the

22 Court rules as follows: The Court GRANTS IN PART and DENIES IN PART Plaintiffs’ and

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 2 of 31

1 Washington’s Motions and GRANTS IN PART and DENIES IN PART Defendants’ Cross-

2 Motion.

3

ORDER SUMMARY

4

In July 2017, President Donald J. Trump announced on Twitter a ban on military service

5 by openly transgender people (the “Ban”). Plaintiffs and the State of Washington

6 (“Washington”) challenged the constitutionality of the Ban, and moved for a preliminary

7 injunction to prevent it from being carried out.

8

In December 2017, the Court—along with three other federal judges—entered a

9 nationwide preliminary injunction preventing the military from implementing the Ban. The

10 effect of the order was to maintain the status quo, allowing transgender people to join and serve

11 in the military and receive transition-related medical care. For the past few months, they have

12 done just that.

13

In March 2018, President Trump announced a plan to implement the Ban. With few

14 exceptions, the plan excludes from military service people “with a history or diagnosis of gender

15 dysphoria” and people who “require or have undergone gender transition.” The plan provides

16 that transgender people may serve in the military only if they serve in their “biological sex.”

17 Defendants claim that this plan resolves the constitutional issues raised by Plaintiffs and

18 Washington.

19

In the following order, the Court concludes otherwise, and rules that the preliminary

20 injunction will remain in effect. Each of the claims raised by Plaintiffs and Washington remains

21 viable. The Court also rules that, because transgender people have long been subjected to

22 systemic oppression and forced to live in silence, they are a protected class. Therefore, any

23 attempt to exclude them from military service will be looked at with the highest level of care,

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 2

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 3 of 31

1 and will be subject to the Court’s “strict scrutiny.” This means that before Defendants can

2 implement the Ban, they must show that it was sincerely motivated by compelling interests,

3 rather than by prejudice or stereotype, and that it is narrowly tailored to achieve those interests.

4

The case continues forward on the issue of whether the Ban is well-supported by

5 evidence and entitled to deference, or whether it fails as an impermissible violation of

6 constitutional rights. The Court declines to dismiss President Trump from the case and allows

7 Plaintiffs’ and Washington’s claims for declaratory relief to go forward against him.

8

BACKGROUND

9 I. The Ban on Military Service by Openly Transgender People1

10

President Trump’s Announcement on Twitter: On July 26, 2017, President Donald J.

11 Trump (@realDonaldTrump) announced over Twitter that the United States would no longer

12 “accept or allow” transgender people “to serve in any capacity in the U.S. military” (the “Twitter

13 Announcement”):

14

15

16

17

18

19

20 (Dkt. No. 149, Ex. 1.)
21

22

1 As used throughout this Order, and as explained in greater detail in this section, the

23

“Ban” refers to Defendants’ policy generally prohibiting military service by openly transgender people, as announced in President Trump’s Twitter Announcement and 2017 Memorandum and

24 as further detailed in the Implementation Plan and 2018 Memorandum.

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 3

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 4 of 31

1

The 2017 Memorandum: On August 25, 2017, President Trump issued a Presidential

2 Memorandum (the “2017 Memorandum”) formalizing his Twitter Announcement, and directing

3 the Secretaries of Defense and Homeland Security to “return” to an earlier policy excluding

4 transgender service members. (Dkt. No. 149, Ex. 2.) The 2017 Memorandum authorized the

5 discharge of openly transgender service members (the “Retention Directive”); prohibited the

6 accession of openly transgender service members (the “Accession Directive”); and prohibited the

7 use of Department of Defense (“DoD”) and Department of Homeland Security (“DHS”)

8 resources to fund “sex reassignment” surgical procedures (the “Medical Care Directive”). (Id. at

9 §§ 1-3.) The Accession Directive was to take effect on January 1, 2018; the Retention and

10 Medical Care Directives on March 23, 2018. (Id. at § 3.) The 2017 Memorandum also ordered

11 the Secretary of Defense to “submit to [President Trump] a plan for implementing both [its]

12 general policy . . . and [its] specific directives . . .” no later than February 21, 2018. (Id.)

13

Secretary Mattis’ Press Release and Interim Guidance: On August 29, 2017, Secretary

14 of Defense James N. Mattis issued a press release confirming that the DoD had received the

15 2017 Memorandum and, as directed, would “carry out” its policy direction. (Dkt. No. 197, Ex.

16 2.) The press release explained that Secretary Mattis would “develop a study and

17 implementation plan” and “establish a panel of experts . . . to provide advice and

18 recommendation on the implementation of the [P]resident’s direction.” (Id.)

19

On September 14, 2017, Secretary Mattis issued interim guidance regarding President

20 Trump’s Twitter Announcement and 2017 Memorandum to the military (the “Interim

21 Guidance”). (Dkt. No. 149, Ex. 3.) The Interim Guidance again identified the DoD’s intent to

22 “carry out the President’s policy and directives” and “present the President with a plan to

23 implement the policy and directives in the [2017] Memorandum.” (Id. at 2.) The Interim

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 4

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 5 of 31

1 Guidance provided (1) that transgender people would be prohibited from accession effective

2 immediately; (2) that service members diagnosed with gender dysphoria would be provided

3 “treatment,” however, “no new sex reassignment surgical procedures for military personnel

4 [would] be permitted after March 22, 2018”; and (3) that no action would be taken “to

5 involuntarily separate or discharge an otherwise qualified Service member solely on the basis of

6 a gender dysphoria diagnosis or transgender status.” (Id. at 3.)

7

The Implementation Plan: On February 22, 2018, as directed, Secretary Mattis

8 delivered to President Trump a plan for carrying out the policies set forth in his Twitter

9 Announcement and 2017 Memorandum (Dkt. No. 224, Ex. 1) along with a “Report and

10 Recommendations on Military Service by Transgender Persons” (Dkt. No. 224, Ex. 2)

11 (collectively, the “Implementation Plan”). The Implementation Plan recommended the following

12 policies:

13

• Transgender persons with a history or diagnosis of gender dysphoria are

disqualified from military service, except under the following limited

14

circumstances: (1) if they have been stable for 36 consecutive months in their

biological sex prior to accession; (2) Service members diagnosed with gender

15

dysphoria after entering into service may be retained if they do not require a

change of gender and remain deployable within applicable retention

16

standards; and (3) currently serving Service members who have been

diagnosed with gender dysphoria since the previous administration’s policy

17

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

18

gender dysphoria.

19

• Transgender persons who require or have undergone gender transition are

disqualified from military service.

20

• Transgender persons without a history or diagnosis of gender dysphoria, who

21

are otherwise qualified for service, may serve, like all other Service members,

in their biological sex. 22

(Dkt. No. 224, Ex. 1 at 3-4.) 23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 5

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 6 of 31

1

The 2018 Memorandum: On March 23, 2018, President Trump issued another

2 Presidential Memorandum (the “2018 Memorandum”). (Dkt. No. 224, Ex. 3.) The 2018

3 Memorandum confirms his receipt of the Implementation Plan, purports to “revoke” the 2017

4 Memorandum and “any other directive [he] may have made with respect to military service by

5 transgender individuals,” and directs the Secretaries of Defense and Homeland Security to

6 “exercise their authority to implement any appropriate policies concerning military service by

7 transgender individuals.” (Id. at 2-3.)

8 II. The Carter Policy

9

In 2010, Congress repealed the “Don’t Ask, Don’t Tell” policy that had previously

10 prevented gay, lesbian, and bisexual people from serving openly in the military. (Dkt. No. 145 at

11 ¶ 10.) The repeal of “Don’t Ask, Don’t Tell” raised questions about the military’s policy on

12 transgender service members, as commanders became increasingly aware that there were capable

13 and experienced transgender service members in every branch of the military. (Id. at ¶ 11; Dkt.

14 No. 146 at ¶ 7.) In August 2014, the DoD eliminated its categorical ban on retention of

15 transgender service members, enabling each branch of military service to reassess its own

16 policies. (Dkt. No. 145 at ¶ 12; Dkt. No. 146 at ¶ 8.) In July 2015, then-Secretary of Defense

17 Ashton Carter convened a group to evaluate policy options regarding openly transgender service

18 members (the “Working Group”). (Dkt. No. 142 at ¶ 8.) The Working Group included senior

19 uniformed officials from each branch, a senior civilian official, and various staff members. (Id.

20 at ¶ 9.) It sought to “identify and address all relevant issues relating to service by openly

21 transgender persons.” (Id. at ¶ 22.) To do so, it consulted with medical experts, personnel

22 experts, readiness experts, and commanders whose units included transgender service members,

23 and commissioned an independent study by the RAND Corporation to assess the implications of

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 6

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 7 of 31

1 allowing transgender people to serve openly (the “RAND Study”). (Id. at ¶¶ 10-11, 22-27.) In

2 particular, the RAND Study focused on: (1) the health care needs of transgender service

3 members and the likely costs of providing coverage for transition-related care; (2) the readiness

4 implications of allowing transgender service members to serve openly; and (3) the experiences of

5 foreign militaries that allow for open service. (Dkt. No. 144, Ex. B at 4.) The RAND Study

6 found “no evidence” that allowing transgender people to serve openly would adversely impact

7 military effectiveness, readiness, or unit cohesion. (Dkt. No. 144 at ¶ 14.) Instead, the RAND

8 Study found that discharging transgender service members would reduce productivity and result

9 in “significant costs” associated with replacing skilled and qualified personnel. (Dkt. No. 142 at

10 ¶ 21.) The results of the RAND Study were published in a 113-page report titled “Assessing the

11 Implications of Allowing Transgender Personnel to Serve Openly.” (See Dkt. No. 144, Ex. B.)

12

After reviewing the results of the RAND Study and other evidence, the Working Group

13 unanimously agreed that (1) transgender people should be allowed to serve openly and (2)

14 excluding them from service based on a characteristic unrelated to their fitness to serve would

15 undermine military efficacy. (Dkt. No. 142 at ¶¶ 26-27.) On June 30, 2016, Secretary Carter

16 accepted the recommendations of the Working Group and issued Directive-type Memorandum

17 16-005 (the “Carter Policy”), which affirmed that “service in the United States military should be

18 open to all who can meet the rigorous standards for military service and readiness.” (Dkt. No.

19 144, Ex. C.) The Carter Policy provided that “[e]ffective immediately, no otherwise qualified

20 service member may be involuntarily separated, discharged or denied reenlistment or

21 continuation of service, solely on the basis of their gender identity,” and further provided that

22

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 7

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 8 of 31

1 transgender people would be allowed to accede into the military not later than July 1, 2017.2 (Id.

2 at 5.) Consistent with the Carter Policy, each branch of military service issued detailed

3 instructions, policies, and regulations regarding separation and retention, accession, in-service

4 transition, and medical care. (Dkt. No. 144 at ¶¶ 24-36, Exs. D, E, F; Dkt. No. 145 at ¶¶ 41-50,

5 Exs. A, B; Dkt. No. 146 at ¶¶ 27-34, Ex. A.)

6

In reliance upon the Carter Policy and the DoD’s assurances that it would not discharge

7 them for being transgender, many service members came out to the military and had been

8 serving openly for more than a year when President Trump issued his Twitter Announcement

9 and 2017 Memorandum. (Dkt. No. 144, ¶ 37; Dkt. No. 145 at ¶ 51; Dkt. No. 146 at ¶ 35.)

10 III. Procedural History

11

On August 28, 2017, Plaintiffs filed this lawsuit challenging the constitutionality of the

12 Ban, as set forth in the Twitter Announcement and the 2017 Memorandum. (See Dkt. No. 1.)

13 Plaintiffs include nine transgender individuals (the “Individual Plaintiffs”) and three

14 organizations (the “Organizational Plaintiffs”). (Dkt. No. 30 at ¶¶ 7-18.) Individual Plaintiffs

15 Ryan Karnoski, D.L., and Connor Callahan aspire to enlist in the military; Staff Sergeant

16 Cathrine Schmid, Chief Warrant Officer Lindsey Muller, Petty Officer First Class Terece Lewis,

17 Petty Officer Second Class Phillip Stephens, and Petty Officer Second Class Megan Winters

18 currently serve openly in the military. (Id. at ¶¶ 7-13.) Individual Plaintiff Jane Doe currently

19 serves in the military, but does not serve openly. (Id. at ¶ 14.) Organizational Plaintiffs include

20 the Human Rights Campaign (“HRC”), the Gender Justice League (“GJL”), and the American

21

22

23

2 On June 30, 2017, Secretary Mattis extended the effective date for accepting

24 transgender recruits to January 1, 2018. (Dkt. No. 197, Ex. 3.)

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 8

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 9 of 31

1 Military Partner Association (“AMPA”). (Id. at ¶¶ 16-18.) Defendants include President Trump,

2 Secretary Mattis, the United States, and the DoD. (Id. at ¶¶ 19-22.)

3

On November 27, 2017, the Court granted intervention to Washington, which joined to

4 protect its sovereign and quasi-sovereign interests in its natural resources and in the health and

5 physical and economic well-being of its residents. (See Dkt. No. 101.)

6

On December 11, 2017, the Court issued a nationwide preliminary injunction barring

7 Defendants from “taking any action relative to transgender individuals that is inconsistent with

8 the status quo that existed prior to President Trump’s July 26, 2017 announcement.”3 (Dkt. No.

9 103 at 23.) The Court found that Plaintiffs and Washington had standing to challenge the Ban

10 and were likely to succeed on the merits of their claims for violation of equal protection,

11 substantive due process, and the First Amendment. (Id. at 6-12, 15-20.)

12

On January 25, 2018, Plaintiffs and Washington filed separate motions for summary

13 judgment.4 (Dkt. Nos. 129, 150.) Both seek an order declaring the Ban unconstitutional and

14 permanently enjoining its implementation. (Dkt. No. 129 at 28-29; Dkt. No. 150-1.)

15

On February 28, 2018, Defendants filed an opposition and cross-motion for partial

16 summary judgment seeking dismissal of all claims brought against President Trump. (Dkt. No.

17 194.)

18

19

3 Three other district courts also entered preliminary injunctions against the Ban. See

Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017); Stone v. Trump, 280 F. Supp. 3d 747 (D.

20 Md. 2017); Stockman v. Trump, No. 17-cv-1799-JGB-KK, Dkt. No. 79 (C.D. Cal. Dec. 22,

2017).

21

4 Plaintiffs are joined by amici the Constitutional Accountability Center (Dkt. No. 163,

22

Ex. 1); Legal Voice (Dkt. No. 169); Retired Military Officers and Former National Security Officials (Dkt. No. 152, Ex. A); and the Commonwealths of Massachusetts and Pennsylvania,

23

the States of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and the District of Columbia (Dkt.

24 No. 170, Ex. A.)

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 9

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 10 of 31

1

On March 23, 2018, as these motions were pending and only days before the Court was

2 set to hear oral argument, President Trump issued the 2018 Memorandum. (Dkt. No. 214, Ex.

3 1.) On March 27, the Court ordered the parties to present supplemental briefing on the effect of

4 the 2018 Memorandum and the Implementation Plan. (Dkt. No. 221.) That briefing has now

5 been completed and this matter is ready for ruling. (See Dkt. Nos. 226, 227, 228.)

6

DISCUSSION

7 I. Legal Standard

8

Summary judgment is proper if “the movant shows that there is no genuine dispute as to

9 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

10 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue

11 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat a motion for

12 summary judgment, the non-movant must point to facts supported by the record which

13 demonstrate a genuine issue of material fact. Lujan v. National Wildlife Federation, 497 U.S.

14 871, 888 (1990). Conclusory, non-specific statements are not sufficient. Id. Similarly, “a party

15 cannot manufacture a genuine issue of material fact merely by making assertions in its legal

16 memoranda.” S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690

17 F.2d 1235, 1238 (9th Cir. 1982).

18 II. Plaintiffs’ and Washington’s Motions for Summary Judgment

19

Plaintiffs and Washington contend that summary judgment is proper because the Ban is

20 unsupported by any constitutionally adequate government interest as a matter of law, and

21 therefore violates equal protection, substantive due process, and the First Amendment. (Dkt. No.

22 129 at 15-28; Dkt. No. 150 at 13-23.) Defendants respond that disputes of material fact preclude

23 summary judgment, including disputes as to (1) whether Plaintiffs’ and Washington’s challenges

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 10

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 11 of 31

1 are moot as a result of the 2018 Memorandum; (2) whether Plaintiffs and Washington have

2 standing; and (3) whether the Ban satisfies the applicable level of scrutiny. (Dkt. No. 194 at

3 5-24; Dkt. No. 226 at 3-11.) The Court addresses each of these issues in turn:

4

A. Mootness

5

Defendants claim that Plaintiffs’ and Washington’s challenges are now moot, as the

6 policy set forth in the 2017 Memorandum has been “revoked” and replaced by that in the 2018

7 Memorandum. (Dkt. No. 226 at 3-7.) Defendants claim the “new policy” has “changed

8 substantially,” such that it presents a “substantially different controversy.” (Id. at 6 (citations

9 omitted.)) Plaintiffs and Washington respond that there is no “new policy” at all, as the 2018

10 Memorandum and the Implementation Plan merely implement the directives of the 2017

11 Memorandum. (Dkt. No. 227 at 2; Dkt. No. 228 at 7-8.)

12

“The burden of demonstrating mootness ‘is a heavy one.’” Los Angeles County v. Davis,

13 440 U.S. 625, 631 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33

14 (1953)). The Ninth Circuit has explained that a case is not moot unless “subsequent events make

15 it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

16 recur,” McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015) (quoting Friends of the

17 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)), such that “the

18 litigant no longer ha[s] any need of the judicial protection that is sought.” Jacobus v. Alaska,

19 338 F.3d 1095, 1102-03 (9th Cir. 2003) (quoting Adarand Constructors, Inc. v. Slater, 528 U.S.

20 216, 224 (2000)). Accordingly, courts find cases moot only where the challenged policy has

21 been completely revoked or rescinded, not merely voluntarily ceased. See Davis, 440 U.S. at

22 631 (holding that a case is moot only where “there can be no reasonable expectation” that the

23 alleged violation will recur and “interim relief or events have completely and irrevocably

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 11

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 12 of 31

1 eradicated the effects of the alleged violation”); City of Mesquite v. Aladdin’s Castle, Inc., 455

2 U.S. 283, 289 (1982) (holding that “a defendant’s voluntary cessation of a challenged practice

3 does not deprive a federal court of its power to determine the legality of the practice”); see also

4 McCormack, 788 F.3d at 1025 (noting that a case is not moot where the government never

5 “repudiated . . . as unconstitutional” the challenged policy).

6

The Court finds that the 2018 Memorandum and the Implementation Plan do not

7 substantively rescind or revoke the Ban, but instead threaten the very same violations that caused

8 it and other courts to enjoin the Ban in the first place. The 2017 Memorandum prohibited the

9 accession and authorized the discharge of openly transgender service members (the Accession

10 and Retention Directives); prohibited the use of DoD and DHS resources to fund transition-

11 related surgical procedures (the Medical Care Directive); and directed Secretary Mattis to submit

12 “a plan for implementing” both its “general policy” and its “specific directives” no later than

13 February 21, 2018. (Dkt. No. 149, Ex. 2 at §§ 1-3.) The 2017 Memorandum did not direct

14 Secretary Mattis to determine whether or not the directives should be implemented, but instead

15 ordered the directives to be implemented by specific dates and requested a plan for how to do so.

16

The Implementation Plan adheres to the policy and directives set forth in the 2017

17 Memorandum with few exceptions: With regard to the Accession and Retention Directives, the

18 Implementation Plan excludes from military service and authorizes the discharge of transgender

19 people who “require or have undergone gender transition” and those “with a history or diagnosis

20 of gender dysphoria” unless they have been “stable for 36 consecutive months in their biological

21 sex prior to accession.” (Dkt. No. 224, Ex. 1 at 3-4.) With regard to the Medical Care Directive,

22 the Implementation Plan provides that the military will, with few exceptions, no longer provide

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 12

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 13 of 31

1 transition-related surgical care (as people who “require . . . gender transition” will no longer be

2 permitted to serve and those who are currently serving will be subject to discharge). (Id.)

3

Defendants claim that the 2018 Memorandum and the Implementation Plan differ from

4 the 2017 Memorandum in that they do not mandate a “categorical” prohibition on service by

5 openly transgender people and “contain[] several exceptions allowing some transgender

6 individuals to serve.” (Dkt. No. 226 at 6-7). The Court is not persuaded. The Implementation

7 Plan prohibits transgender people—including those who have neither transitioned nor been

8 diagnosed with gender dysphoria—from serving, unless they are “willing and able to adhere to

9 all standards associated with their biological sex.” (Dkt. No. 224, Ex. 1 at 4, Ex. 2 at 7.) 10 Requiring transgender people to serve in their “biological sex” 5 does not constitute “open”

11 service in any meaningful way, and cannot reasonably be considered an “exception” to the Ban.

12 Rather, it would force transgender service members to suppress the very characteristic that 13 defines them as transgender in the first place.6 (See Dkt. No. 143 at ¶ 19 (“The term

14 ‘transgender’ is used to describe someone who experiences any significant degree of

15

16

5 The Court notes that the Implementation Plan uses the term “biological sex,” apparently

17 to refer to the sex one is assigned at birth. This is somewhat misleading, as the record indicates that gender identity—“a person’s internalized, inherent sense of who they are as a particular

18 gender (i.e., male or female)”—is also widely understood to have a “biological component.” (See Dkt. No. 143 at ¶¶ 20-21.)

19

6 While the Implementation Plan contains an exception that allows current service

20 members to serve openly and in their preferred gender and receive “medically necessary” treatment for gender dysphoria, the exception is narrow, and applies only to those service

21 members who “were diagnosed with gender dysphoria by a military medical provider after the effective date of the Carter [P]olicy” (i.e., June 30, 2016) but “before the effective date” of the

22 policy set forth in the Implementation Plan. (Dkt. No. 224, Ex. 2 at 7-8.) Further, this exception is severable from the remainder of the Implementation Plan. (Id. at 7 (“[S]hould [the DoD]’s

23 decision to exempt these Service members be used by a court as a basis for invalidating the entire policy, this exemption is and should be deemed severable from the rest of the policy.”).)

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 13

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 14 of 31

1 misalignment between their gender identity and their assigned sex at birth.”); Dkt. No. 224, Ex. 2

2 at 9 n.10 (“[T]ransgender” is “an umbrella term used for individuals who have sexual identity or

3 gender expression that differs from their assigned sex at birth.”)

4

Therefore, the Court concludes that the 2018 Memorandum and the Implementation Plan

5 do not moot Plaintiffs’ and Washington’s existing challenges.

6

B. Standing

7

Defendants claim that Plaintiffs and Washington lack standing to challenge the Ban, and

8 that the 2018 Memorandum and Implementation Plan “have significantly changed the analysis.”

9 (Dkt. No. 194 at 6-12; Dkt. No. 226 at 7.)

10

Standing requires (1) an “injury in fact”; (2) a “causal connection between the injury and

11 the conduct complained of”; and (3) a likelihood “that the injury will be redressed by a favorable

12 decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation

13 marks and citations omitted). An “injury in fact” exists where there is an invasion of a legally

14 protected interest that is both “concrete and particularized” and “actual or imminent, not

15 conjectural or hypothetical.” Id. at 560 (internal quotation marks and citations omitted).

16

While the Court previously concluded that both Plaintiffs and Washington established

17 standing at the preliminary injunction stage (Dkt. No. 103 at 7-12), their burden for doing so on

18 summary judgment is more exacting and requires them to set forth “by affidavit or other

19 evidence ‘specific facts’” such that a “fair-minded jury” could find they have standing. Id. at

20 561; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

21

The Court considers standing for the Individual Plaintiffs, the Organizational Plaintiffs,

22 and Washington in turn:

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 14

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 15 of 31

1

1. Individual Plaintiffs

2

Each of the Individual Plaintiffs has submitted an affidavit detailing the ways in which

3 they have already been harmed by the Ban, and would be further harmed were it to be

4 implemented. (See Dkt. Nos. 130-138.) While Defendants claim that “Plaintiffs are obviously

5 not suffering any harm from the revoked 2017 Memorandum,” and “would neither sustain an

6 actual injury nor face an imminent threat of future injury” as a result of the 2018 Memorandum,

7 the Court disagrees and concludes that each of the Individual Plaintiffs has standing to challenge

8 the Ban.

9

Karnoski, D.L, and Callahan have “taken clinically appropriate steps to transition” and

10 would be excluded from acceding under the Implementation Plan. (Dkt. No. 130 at ¶ 10; Dkt.

11 No. 132 at ¶ 8; Dkt. No. 137 at ¶ 8.) Whether they could have acceded under the Carter Policy

12 and whether they might be able to obtain “waivers,” as Defendants suggest, are irrelevant. (See

13 Dkt. No. 226 at 8.) As the Court previously found, their injury “lies in the denial of an equal

14 opportunity to compete, not the denial of the job itself,” and the Court need not “inquire into the

15 plaintiff’s qualifications (or lack thereof) when assessing standing.” (Dkt. No. 103 at 10 n.3

16 (citing Shea v. Kerry, 796 F.3d 42, 50 (D.C. Cir. 2015)) (emphasis in original).)

17

Doe does not currently serve openly, but was intending to come out and to transition

18 surgically before President Trump’s Twitter Announcement. (Dkt. No. 138 at ¶¶ 8-11.) The Ban

19 unambiguously subjects her to discharge should she seek to do either. (See Dkt. No. 224, Ex. 1.)

20 Schmid, Muller, Lewis, Stephens, and Winters have been diagnosed with gender dysphoria, and

21 likewise would be subject to discharge under the Ban.7 (Dkt. No. 131 at ¶ 9; Dkt. No. 133 at

22

23

7 Defendants claim that the currently serving Plaintiffs were “diagnosed with gender

dysphoria within the relevant time period” and “therefore would be able to continue serving in

24 their preferred gender, change their gender marker, and receive all medically necessary

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 15

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 16 of 31

1 ¶ 15; Dkt. No. 134 at ¶ 10; Dkt. No. 135 at ¶ 10; Dkt. No. 136 at ¶ 10.) The threat of discharge

2 facing Doe, Schmid, Muller, Lewis, Stephens, and Winters is “actual or imminent, not

3 conjectural or hypothetical,” and clearly gives rise to standing. See Lujan, 504 U.S. at 560

4 (internal quotation marks and citation omitted).

5

Importantly, even if each of the Individual Plaintiffs were granted waivers or otherwise

6 not excluded, discharged, or denied medical care, there can be no dispute that they would

7 nevertheless have standing to challenge the Ban. This is because the Ban already has denied

8 them the opportunity to serve in the military on the same terms as others; has deprived them of

9 dignity; and has subjected them to stigmatization. (See Dkt. No. 103 at 8.) Policies that

10 “stigmatiz[e] members of [a] disfavored group as ‘innately inferior’ . . . can cause serious

11 non-economic injuries to those persons who are personally denied equal treatment solely because

12 of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 737-740 (1984)

13 (citation omitted). Such stigmatic injury, when identified in specific terms, is “one of the most

14 serious consequences of discriminatory government action and is sufficient in some

15 circumstances to support standing.” Allen v. Wright, 468 U.S. 737, 755 (1984), abrogated on

16 other grounds, 134 S. Ct. 1377 (2014).

17

18

treatment” under the Implementation Plan’s narrow exception. (Dkt. No. 226 at 8.) The record does not support this claim. As noted previously, the exception applies only to current service

19

members who “were diagnosed with gender dysphoria by a military medical provider after the effective date of the Carter [P]olicy” (i.e., June 30, 2016) but “before the effective date” of the

20

policy set forth in the Implementation Plan. (See supra, n.6; Dkt. No. 224, Ex. 2 at 7-8 (emphasis added).) The record suggests that many, if not all, of the currently serving Plaintiffs

21

were diagnosed before June 30, 2016. For example, Schmid was diagnosed “approximately four years ago.” (Dkt. No. 131 at ¶ 9.) Muller was diagnosed “approximately six years ago.” (Dkt.

22

No. 133 at ¶ 15.) Lewis, Stephens, and Winters were diagnosed “approximately three years ago,” “approximately two and a half years ago,” and “approximately two years ago”

23

respectively. (Dkt. No. 134 at ¶ 10; Dkt. No. 135 at ¶ 10; Dkt. No. 136 at ¶ 10.) There is also no indication that any of the currently serving Plaintiffs received their diagnosis from a “military

24 medical provider.”

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 16

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 17 of 31

1

Each of the Individual Plaintiffs has detailed the stigmatic injuries they have suffered

2 through affidavits. For example, Karnoski has explained that the Ban has caused him “great

3 distress, discomfort, and pain.” (Dkt. No. 130 at ¶ 21.) Schmid has explained that the Ban’s

4 “abrupt change in policy and implicit commentary on [her] value to the military and competency

5 to serve has caused [her] to feel tremendous anguish,” and that since it was announced, she has

6 lost sleep and suffered “an immense amount of anxiety.” (Dkt. No. 131 at ¶¶ 23-24, 26.) Muller

7 has explained that the Ban was “devastating” and “wounded [her] more than any combat injury

8 could.” (Dkt. No. 133 at ¶¶ 30-31.) Doe has explained that the Ban precludes her from

9 expressing her authentic gender identity, and that as a result, she has not come out. (Dkt. No.

10 138 at ¶¶ 10-11.) Doe’s self-censorship alone is a “constitutionally sufficient injury,” as it is

11 based on her “actual and well-founded fear” of discharge. See Cal. Pro-Life Council, Inc. v.

12 Getman, 328 F.3d 1088, 1095 (9th Cir. 2003) (holding that a person’s “actual and well-founded

13 fear that [a] law will be enforced against him or her” may give rise to standing to bring

14 pre-enforcement claims under the First Amendment and that “self-censorship is ‘a harm that can

15 be realized even without an actual prosecution’”) (quoting Virginia v. Am. Booksellers Ass’n,

16 484 U.S. 383, 393 (1988)).

17

Therefore, the Court concludes that each of the Individual Plaintiffs has standing.

18

2. Organizational Plaintiffs

19

As each of the Individual Plaintiffs has standing, so too do the organizations they

20 represent. An organization has standing where “(a) its members would otherwise have standing

21 to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s

22 purpose; and (c) neither the claim asserted nor the relief requested requires the participation of

23 individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333,

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 17

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 18 of 31

1 343 (1977). Each of the Organizational Plaintiffs satisfies these requirements. Karnoski and

2 Schmid are members of HRC, GJL, and AMPA, and Muller, Stephens, and Winters are also

3 members of AMPA. (Dkt. No. 130 at ¶ 3; Dkt. No. 131 at ¶ 5; Dkt. No. 133 at ¶ 5; Dkt. No. 135

4 at ¶ 4; Dkt. No. 136 at ¶ 4; Dkt. No. 140 at ¶ 3.) The interests each Organizational Plaintiff seeks

5 to protect are germane to their organizational purposes, which include ending discrimination

6 against lesbian, gay, bisexual, transgender and queer (“LGBTQ”) individuals (HRC and GJL)

7 and supporting families and allies of LGBT service members and veterans (AMPA). (Dkt. No.

8 139 at ¶ 2; Dkt. No. 140 at ¶ 2; Dkt. No. 141 at ¶ 2.)

9

Therefore, the Court concludes that each of the Organizational Plaintiffs has standing.

10

3. Washington

11

Defendants claim that “Washington has not even attempted to satisfy its burden to

12 demonstrate standing,” and that “in granting Washington’s motion to intervene, the Court

13 expressly declined to decide whether Washington possessed standing to sue.” (Dkt. No. 194 at

14 12.) To the contrary, the Court explicitly found that Washington had standing in its own right,

15 and not merely as an intervenor. (Dkt. No. 103 at 11-12.)

16

A state has standing to sue the federal government to vindicate its sovereign and quasi-

17 sovereign interests. See Massachusetts v. E.P.A., 549 U.S. 497, 518-520 (2007). Sovereign

18 interests include a state’s interest in protecting the natural resources within its boundaries. Id. at

19 518-19. Quasi-sovereign interests include its interest in “the health and well-being—both

20 physical and economic—of its residents,” and in “securing residents from the harmful effects of

21 discrimination.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607,

22 609 (1982).

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 18

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 19 of 31

1

Washington contends that the Ban will impede its ability to protect its residents and

2 natural resources and will undermine the efficacy of its National Guard. (Dkt. No. 150 at 9-10.)

3 Washington is home to approximately 60,000 active, reserve, and National Guard members, and

4 the military is the second largest public employer in the state. (Id. at 9.) Washington is also

5 home to approximately 32,850 transgender adults, and its laws protect these residents against

6 discrimination on the basis of sex, gender, and gender identity. (Id. at 9-10); RCW §§ 49.60.030;

7 49.60.040(25)-(26).

8

Washington relies on the National Guard to assist with emergency preparedness and

9 disaster recovery planning, and to protect the state’s residents and natural resources from

10 wildfires, landslides, flooding, and earthquakes. (Dkt. No. 150 at 9.) When the Governor

11 deploys the National Guard for state active duty, Washington pays its members’ wages and

12 provides disability and life insurance benefits for injuries they may sustain while serving the

13 state. (Id.); RCW § 38.24.050. The state also oversees recruitment efforts and exercises

14 day-to-day command over Guard members in training and most forms of active duty. (Dkt. No.

15 170, Ex. A at 20.) Further, the Governor must ensure that the Guard conforms to both federal

16 and state laws and regulations, including the state’s anti-discrimination laws and, were the Ban to

17 be implemented, conflicting DoD policies regarding accession and retention. (Dkt. No. 150 at

18 9-10; Dkt. No. 170, Ex. A at 21-22.) Thus, in addition to diminishing the number of eligible

19 members for the National Guard, the Ban threatens Washington’s ability to (1) protect its

20 residents and natural resources in times of emergency and (2) “assur[e] its residents that it will

21 act” to protect them from “the political, social, and moral damage of discrimination.” See

22 Snapp, 458 U.S. at 609. Defendants have not offered any contrary evidence with respect to

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 19

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 20 of 31

1 Washington’s sovereign and quasi-sovereign interests. Therefore, the Court concludes that

2 Washington has standing.

3

C. Constitutional Violations

4

Plaintiffs contend that the Ban violates equal protection, substantive due process, and the

5 First Amendment. (Dkt. No. 129 at 15-28.) Washington contends that the Ban violates equal

6 protection and substantive due process. (Dkt. No. 150 at 13-23.) Before it can reach the merits

7 of these constitutional claims, the Court must determine (1) the applicable level of scrutiny and

8 (2) the applicable level of deference owed to the Ban, if any. The Court addresses each of these

9 issues in turn:

10

1. Level of Scrutiny

11

At the preliminary injunction stage, the Court found that transgender people were, at

12 minimum, a quasi-suspect class. (Dkt. No. 103 at 15-16.) In light of additional evidence before

13 it at this stage, the Court today concludes that they are a suspect class, such that the Ban must

14 satisfy the most exacting level of scrutiny if it is to survive.

15

In determining whether a classification is suspect or quasi-suspect, the Supreme Court

16 has observed that relevant factors include: (1) whether the class has been “[a]s a historical

17 matter . . . subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); (2)

18 whether the class has a defining characteristic that “frequently bears [a] relation to ability to

19 perform or contribute to society,” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

20 440-41 (1985); (3) whether the class exhibits “obvious, immutable, or distinguishing

21 characteristics that define [it] as a discrete group,” Bowen, 483 U.S. at 602; and (4) whether the

22 class is “a minority or politically powerless.” Id.; see also Windsor v. U.S., 699 F.3d 169, 181

23 (2d Cir. 2012), aff’d on other grounds, 570 U.S. 744 (2013). While “[t]he presence of any of the

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 20

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 21 of 31

1 factors is a signal that the particular classification is ‘more likely than others to reflect

2 deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,’”

3 the first two factors alone may be dispositive. Golinski v. U.S. Office of Pers. Mgmt., 824 F.

4 Supp. 2d 968, 983 (N.D. Cal. 2012) (quoting Pyler v. Doe, 457 U.S. 202, 216 n.14 (1982)).

5

The Court considers each of these factors in turn:

6

i. History of Discrimination

7

The history of discrimination and systemic oppression of transgender people in this

8 country is long and well-recognized. Transgender people have suffered and continue to suffer

9 endemic levels of physical and sexual violence, harassment, and discrimination in employment,

10 education, housing, criminal justice, and access to health care. (See Dkt. No. 169, Ex. A at

11 9-12.) According to a nationwide survey conducted by the National Center for Transgender

12 Equality in 2015, 48 percent of transgender respondents reported being “denied equal treatment,

13 verbally harassed, and/or physically attacked in the past year because of being transgender” and

14 47 percent reported being “sexually assaulted at some point in their lifetime.” (Id. at 10.)

15 Seventy-seven (77) percent report being “verbally harassed, prohibited from dressing according

16 to their gender identity, or physically or sexually assaulted” in grades K-12. (Id. at 10-11.)

17 Thirty (30) percent reported being “fired, denied a promotion, or experiencing some other form

18 of mistreatment in the workplace related to their gender identity or expression, such as being

19 harassed or attacked.” (Id. at 11.) Finally, “it is generally estimated that transgender women

20 face 4.3 times the risk of becoming homicide victims than the general population.” (Id. at 10

21 (emphasis in original).)

22

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 21

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 22 of 31

1

ii. Contributions to Society

2

Discrimination against transgender people clearly is unrelated to their ability to perform

3 and contribute to society. See Doe 1, 275 F. Supp. 3d at 209 (noting the absence of any

4 “argument or evidence suggesting that being transgender in any way limits one’s ability to

5 contribute to society”); Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015)

6 (noting the absence of “any data or argument suggesting that a transgender person, simply by

7 virtue of transgender status, is any less productive than any other member of society”). Indeed,

8 the Individual Plaintiffs in this case contribute not only to society as a whole, but to the military

9 specifically. For years, they have risked their lives serving in combat and non-combat roles,

10 fighting terrorism around the world, and working to secure the safety and security of our forces

11 overseas. (See, e.g., Dkt. No. 133 at ¶¶ 7-9; Dkt. No. 134 at ¶¶ 5-6; Dkt. No. 135 at ¶¶ 6-7; Dkt.

12 No. 136 at ¶¶ 6-7.) Their exemplary service has been recognized by the military itself, with

13 many having received awards and distinctions. (See Dkt. No. 131 at ¶ 15; Dkt. No. 133 at ¶ 12;

14 Dkt. No. 134 at ¶ 7.)

15

iii. Immutability

16

Transgender people clearly have “immutable” and “distinguishing characteristics that

17 define them as a discrete group.” Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of

18 Educ., 208 F. Supp. 3d 850, 874 (S.D Ohio 2016) (quoting Lyng v. Castillo, 477 U.S. 635, 638

19 (1986)). Experts agree that gender identity has a “biological component,” and there is a

20 “medical consensus that gender identity is deep-seated, set early in life, and impervious to

21 external influences.” (Dkt. No. 143 at ¶¶ 21-22 (emphasis added).) In other contexts, the Ninth

22 Circuit has held that “[s]exual orientation and sexual identity” are “immutable” and are “so

23 fundamental to one’s identity that a person should not be required to abandon them.”

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 22

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 23 of 31

1 Hernandez-Montiel v. I.N.S., 225 F.3d 1087, 1093 (9th Cir. 2000), overruled on other grounds,

2 409 F.3d 1177 (9th Cir. 2005).

3

iv. Political Power

4

Despite increased visibility in recent years, transgender people as a group lack the

5 relative political power to protect themselves from wrongful discrimination. While the exact

6 number is unknown, transgender people make up less than 1 percent of the nation’s adult

7 population. (Dkt. No. 143, Ex. B at 3 (estimating 0.3 percent)); see also Doe 1, 275 F. Supp. 3d

8 at 209 (estimating 0.6 percent). Fewer than half of the states have laws that explicitly prohibit

9 discrimination against transgender people. (Dkt. No. 169, Ex. A at 12.) Further, recent actions

10 by President Trump’s administration have removed many of the limited protections afforded by

11 federal law. (Id. at 12-13.) Finally, openly transgender people are vastly underrepresented in

12 and have been “systematically excluded from the most important institutions of

13 self-governance.” SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir.

14 2014). There are no openly transgender members of the United States Congress or the federal

15 judiciary, and only one out of more than 7,000 state legislators is openly transgender. (Dkt. No.

16 169, Ex. A at 14); see also Adkins, 143 F. Supp. 3d at 140.

17

Recognizing these factors, courts have consistently found that transgender people

18 constitute, at minimum, a quasi-suspect class.8 See, e.g., Doe 1, 275 F. Supp. 3d at 208-10;

19

20 8 The Ninth Circuit applies heightened scrutiny to equal protection claims involving
21 discrimination based on sexual orientation. SmithKline, 740 F.3d at 484; Latta v. Otter, 771 F.3d 456, 468 (9th Cir. 2014). This reasoning further supports the Court’s conclusion as to the
22 applicable level of scrutiny, as discrimination based on transgender status burdens a group that has in many ways “experienced even greater levels of societal discrimination and
23 marginalization.” Norsworthy, 87 F. Supp. 3d at 1119 n.8; see also Adkins, 143 F. Supp. 3d at 140 (“Particularly in comparison to gay people . . . transgender people lack the political strength
24 to protect themselves. . . . [A]lthough there are and were gay members of the United States

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 23

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 24 of 31

1 Stone, 280 F. Supp. 3d at 768; Adkins, 143 F. Supp. 3d at 139-40; Highland, 208 F. Supp. 3d at

2 873-74; Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 (N.D. Cal. 2015). Today, the Court

3 concludes that transgender people constitute a suspect class. Transgender people have long been

4 forced to live in silence, or to come out and face the threat of overwhelming discrimination.

5

Therefore, the Court GRANTS summary judgment in Plaintiffs’ and Washington’s favor

6 as to the applicable level of scrutiny. The Ban specifically targets one of the most vulnerable

7 groups in our society, and must satisfy strict scrutiny if it is to survive.

8

2. Level of Deference

9

Defendants claim that “considerable deference is owed to the President and the DoD in

10 making military personnel decisions,” and that for this reason, Plaintiffs’ and Washington’s

11 constitutional claims necessarily fail. (Dkt. No. 194 at 16.)

12

The Court previously found that the Ban—as set forth in President Trump’s Twitter

13 Announcement and 2017 Memorandum—was not owed deference, as it was not supported by

14 “any evidence of considered reason or deliberation.” (Dkt. No. 103 at 17-18.) Indeed, at the

15 time he announced the Ban, “all of the reasons proffered by the President for excluding

16 transgender individuals from the military were not merely unsupported, but were actually

17 contradicted by the studies, conclusions, and judgment of the military itself.” Doe 1, 275 F.

18 Supp. 3d at 212 (emphasis in original); see also Rostker v. Goldberg, 453 U.S. 57, 67-72 (1981)

19 (concluding that deference is owed to well-reasoned policies that are not adopted “unthinkingly”

20 or “reflexively and not for any considered reason”); Goldman v. Weinberger, 475 U.S. 503,

21 507-08 (1986) (concluding that deference is owed where a policy results from the “professional

22

23 Congress . . . as well as gay federal judges, there is no indication that there have ever been any
24 transgender members of the United States Congress or federal judiciary.”)

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 24

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 25 of 31

1 judgment of military authorities concerning the relative importance of a particular military

2 interest”); compare Owens v. Brown, 455 F. Supp. 291, 305 (D.D.C. 1978) (concluding that

3 deference is not owed where a policy is adopted “casually, over the military’s objections and

4 without significant deliberation”).

5

Now that the specifics of the Ban have been further defined in the 2018 Memorandum

6 and the Implementation Plan, whether the Court owes deference to the Ban presents a more

7 complicated question. Any justification for the Ban must be “genuine, not hypothesized or

8 invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996).

9 However, the Court is mindful that “complex[,] subtle, and professional decisions as to the

10 composition . . . and control of a military force are essentially professional military judgments,”

11 reserved for the Legislative and Executive Branches. Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

12 The Court’s entry of a preliminary injunction was not intended to prevent the military from

13 continuing to review the implications of open service by transgender people, nor to preclude it

14 from ever modifying the Carter Policy.

15

Defendants claim that the military has done just that, and that the Ban—as set forth in the

16 2018 Memorandum and the Implementation Plan—is now the product of a deliberative review.

17 In particular, Defendants claim the Ban has been subjected to “an exhaustive study” and is

18 consistent with the recommendations of a “Panel of Experts” convened by Secretary Mattis to

19 study “military service by transgender individuals, focusing on military readiness, lethality, and

20 unit cohesion,” and tasked with “conduct[ing] an independent multi-disciplinary review and

21 study of relevant data and information pertaining to transgender Service members.” (See Dkt.

22 No. 226 at 9-10; Dkt. No. 224, Ex. 2 at 19.) Defendants claim that the Panel was comprised of

23 senior military leaders who received “support from medical and personnel experts from across

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 25

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 26 of 31

1 the [DoD] and [DHS],” and considered “input from transgender Service members, commanders

2 of transgender Service members, military medical professionals, and civilian medical

3 professionals with experience in the care and treatment of individuals with gender dysphoria.”

4 (Dkt. No. 224, Ex. 2 at 20.) “Unlike previous reviews on military service by transgender

5 individuals,” Defendants claim that the Panel’s analysis was “informed by the [DoD]’s own data

6 obtained since the new policy began to take effect last year.” (Dkt. No. 224, Ex. 1 at 3.) The

7 Panel’s findings are set forth in a 44-page “Report and Recommendations on Military Service by

8 Transgender Persons,” which concludes that “the realities associated with service by transgender

9 individuals are far more complicated than the prior administration or RAND had assumed,” and

10 that because gender transition “would impede readiness, limit deployability, and burden the

11 military with additional costs . . . the risks associated with maintaining the Carter [P]olicy . . .

12 counsel in favor of” the Ban. (Dkt. No. 224, Ex. 2 at 46.)

13

Having carefully considered the Implementation Plan—including the content of the

14 DoD’s “Report and Recommendations on Military Service by Transgender Persons”—the Court

15 concludes that whether the Ban is entitled to deference raises an unresolved question of fact.

16 The Implementation Plan was not disclosed until March 29, 2018. (See Dkt. No. 224, Exs. 1, 2.)

17 As Defendants’ claims and evidence regarding their justifications for the Ban were presented to

18 the Court only recently, Plaintiffs and Washington have not yet had an opportunity to test or

19 respond to these claims. On the present record, the Court cannot determine whether the DoD’s

20 deliberative process—including the timing and thoroughness of its study and the soundness of

21 the medical and other evidence it relied upon—is of the type to which Courts typically should

22 defer. See Fed. R. Civ. P. 56(e)(1).

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 26

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 27 of 31

1

Accordingly, the Court DENIES summary judgment as to the level of deference due.

2 The Court notes that, even in the event it were to conclude that deference is owed, it would not

3 be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as

4 Defendants seem to suggest. “‘The military has not been exempted from constitutional

5 provisions that protect the rights of individuals’ and, indeed, ‘[i]t is precisely the role of the

6 courts to determine whether those rights have been violated.’” Doe 1, 275 F. Supp. 3d at 210

7 (quoting Emory v. Sec’y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987)); Chappell v. Wallace,

8 462 U.S. 296, 304 (1983) (“This Court has never held, nor do we now hold, that military

9 personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the

10 course of military service.”); Rostker, 453 U.S. at 70 (“[D]eference does not mean abdication.”).

11 Indeed, the Court notes that Defendants’ claimed justifications for the Ban—to promote

12 “military lethality and readiness” and avoid “disrupt[ing] unit cohesion, or tax[ing] military

13 resources”— are strikingly similar to justifications offered in the past to support the military’s

14 exclusion and segregation of African American service members, its “Don’t Ask, Don’t Tell”

15 policy, and its policy preventing women from serving in combat roles. (Dkt. No. 224, Ex. 1 at

16 2-4; see also Dkt. No. 163, Ex. 1 at 8-16.)

17

3. Equal Protection, Due Process, and First Amendment Claims

18

A policy will survive strict scrutiny only where it is motivated by a “compelling state

19 interest” and “the means chosen ‘fit’ the compelling goal so closely that there is little or no

20 possibility that the motive for the classification was illegitimate . . . prejudice or stereotype.”

21 Grutter v. Bollinger, 539 U.S. 306, 333 (2003) (citation omitted). In making this determination,

22 the Court must carefully evaluate “the importance and the sincerity of the reasons advanced” by

23 the government for the use of a particular classification in a particular context. Id. at 327.

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 27

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 28 of 31

1 Whether Defendants have satisfied their burden of showing that the Ban is constitutionally

2 adequate (i.e., that it was sincerely motivated by compelling state interests, rather than by

3 prejudice or stereotype) necessarily turns on facts related to Defendants’ deliberative process.

4 As discussed previously, these facts are not yet before the Court. (See supra, § II.C.2.) Further,

5 Defendants’ responsive briefing addresses only the constitutionality of the Interim Guidance, a

6 document that has never been, and is not now, the applicable policy before the Court. (See Dkt.

7 No. 194 at 19-24.)

8

For the same reasons it cannot grant summary judgment as to the level of deference due

9 at this stage, the Court cannot reach the merits of the alleged constitutional violations.

10 Accordingly, the Court DENIES summary judgment as to Plaintiffs’ and Washington’s equal

11 protection, due process, and First Amendment claims.

12 IV. Defendants’ Motion for Partial Summary Judgment

13

Defendants contend that the Court is without jurisdiction to impose injunctive or

14 declaratory relief against President Trump in his official capacity, and move for partial summary

15 judgment on all claims against him individually. (Dkt. No. 194 at 25-27.) Plaintiffs and

16 Washington do not oppose summary judgment as to injunctive relief, but respond that

17 declaratory relief against President Trump is proper. (Dkt. No. 207 at 8-10; Dkt. No. 209 at 6-8.)

18

The Court is aware of no case holding that the President is immune from declaratory

19 relief—Rather, the Supreme Court has explicitly affirmed the entry of such relief. See Clinton v.

20 City of New York, 524 U.S. 417, 425 n.9 (1998) (affirming entry of declaratory judgment

21 against President Clinton stating that Line Item Veto Act was unconstitutional); NTEU v. Nixon,

22 492 F.2d 587, 609 (1974) (“[N]o immunity established under any case known to this Court bars

23 every suit against the president for injunctive, declaratory or mandamus relief.”); see also Hawaii

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 28

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 29 of 31

1 v. Trump, 859 F.3d 741, 788 (9th Cir. 2017) (vacating injunctive relief against President Trump,

2 but not dismissing him in suit for declaratory relief), vacated as moot, 874 F.3d 1112 (9th Cir.

3 2017).

4

The Court concludes that, not only does it have jurisdiction to issue declaratory relief

5 against the President, but that this case presents a “most appropriate instance” for such relief.

6 See NTEU, 492 F.2d at 616. The Ban was announced by President Trump (@realDonaldTrump)

7 on Twitter, and was memorialized in the 2017 and 2018 Presidential Memorandums, which were

8 each signed by President Trump. (Dkt. No. 149, Exs. 1, 2; Dkt. No. 224, Ex. 3.) While

9 President Trump’s Twitter Announcement suggests he authorized the Ban “[a]fter consultation

10 with [his] Generals and military experts” (Dkt. No. 149, Ex. 1), Defendants to date have failed to

11 identify even one General or military expert he consulted, despite having been ordered to do so

12 repeatedly. (See Dkt. Nos. 204, 210, 211.) Indeed, the only evidence concerning the lead-up to

13 his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and

14 that the abrupt change in policy was “unexpected.” (See Dkt. No. 208, Ex. 1 at 9 (General

15 Joseph F. Dunford, Chairman of the Joint Chiefs of Staff stating on July 27, 2017 “Chiefs, I

16 know yesterday’s announcement was unexpected . . .”); Dkt. No. 152, Ex. A at 11-12 (“The Joint

17 Chiefs of Staff were not consulted at all on the decision . . . The decision was announced so

18 abruptly that White House and Pentagon officials were unable to explain the most basic of

19 details about how it would be carried out.”).) Even Secretary Mattis was given only one day’s

20 notice before President Trump’s Twitter Announcement. (Id.; Dkt. No. 163, Ex. 1 at 26.) As no

21 other persons have ever been identified by Defendants—despite repeated Court orders to do so—

22 the Court is led to conclude that the Ban was devised by the President, and the President alone.

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 29

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 30 of 31

1

Therefore, the Court GRANTS Defendants’ motion for partial summary judgment with

2 regard to injunctive relief and DENIES the motion with regard to declaratory relief.

3

CONCLUSION

4

The Court concludes that all Plaintiffs and Washington have standing; that the 2018

5 Memorandum and Implementation Plan do not moot their claims; and that transgender people

6 constitute a suspect class necessitating a strict scrutiny standard of review. The Court concludes

7 that questions of fact remain as to whether, and to what extent, deference is owed to the Ban, and

8 whether the Ban, when held to strict scrutiny, survives constitutional review.

9

Accordingly, the Court rules as follows:

10

1. The Court GRANTS Plaintiffs’ and Washington’s motions for summary judgment

11 with respect to the applicable level of scrutiny, which is strict scrutiny;

12

2. The Court DENIES Plaintiffs’ and Washington’s motions for summary judgment

13 with respect to the applicable level of deference;

14

3. The Court DENIES Plaintiffs’ and Washington’s motions for summary judgment

15 with respect to violations of equal protection, due process, and the First Amendment;

16

4. The Court GRANTS Defendants’ cross-motion for summary judgment with

17 respect to injunctive relief against President Trump and DENIES the cross-motion with respect

18 to declarative relief against President Trump.

19

5. The preliminary injunction previously entered otherwise remains in full force and

20 effect. Defendants (with the exception of President Trump), their officers, agents, servants,

21 employees, and attorneys, and any other person or entity subject to their control or acting directly

22 or indirectly in concert or participation with Defendants are enjoined from taking any action

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 30

Case 2:17-cv-01297-MJP Document 233 Filed 04/13/18 Page 31 of 31

1 relative to transgender people that is inconsistent with the status quo that existed prior to

2 President Trump’s July 26, 2017 announcement.

3

6. The Court’s ruling today eliminates the need for Plaintiffs and Washington to

4 respond to Defendants’ Motion to Dissolve the Preliminary Injunction (Dkt. No. 223), which is

5 hereby STRICKEN.

6

7. The parties are directed to proceed with discovery and prepare for trial on the

7 issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates

8 equal protection, substantive due process, and the First Amendment.

9

10

The clerk is ordered to provide copies of this order to all counsel.

11

Dated April 13, 2018.

12

13

A

14

Marsha J. Pechman

United States District Judge

15

16

17

18

19

20

21

22

23

24

ORDER ON PLAINTIFFS’ AND WASHINGTON’S MOTIONS FOR SUMMARY JUDGMENT; DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 31

 
 Case 2:17-cv-01297-MJP Document 283 Filed 06/15/18 Page 1 of 6

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

RYAN KARNOSKI,

CASE NO. C17-1297-MJP

11

Plaintiff,

ORDER DENYING MOTION TO

STAY PRELIMINARY

12

v.

INJUNCTION

13

DONALD J. TRUMP,

14

Defendant.

15 THIS MATTER comes before the Court on Defendants’ Motion to Stay the Preliminary
16 Injunction Pending Appeal. (Dkt. No. 238.) Having reviewed the Motion, the Responses (Dkt.
17 Nos. 250, 257), the Reply (Dkt. No. 261), the Jurisdictional Briefing (Dkt. Nos. 275, 276, 277)
18 and all related papers, the Court DENIES the Motion.
19 Background
20 On December 11, 2017, the Court issued a nationwide preliminary injunction barring
21 Defendants from “taking any action relative to transgender individuals that is inconsistent with
22 the status quo” that existed prior to President Trump’s July 26, 2017 announcement” of a policy
23

24

ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION - 1

Case 2:17-cv-01297-MJP Document 283 Filed 06/15/18 Page 2 of 6

1 excluding transgender people from serving openly in the military (the “Ban”). (Dkt. No. 103 at

2 23.)

3

On March 23, 2018, Defendants released an Implementation Plan and a 2018

4 Memorandum which purported to “revoke” the 2017 Memorandum and replace it with a “new

5 policy” that does not mandate a “categorical prohibition on transgender service members,” but

6 rather targets those who have been diagnosed with gender dysphoria. (Dkt. No. 226 at 3-7; see

7 also Dkt. No. 224, Exs. 1, 3.)

8

On April 13, 2018, the Court granted partial summary judgment for Plaintiffs and the

9 State of Washington, and ordered the preliminary injunction to remain in effect. (See Dkt. No.

10 233.) In so doing, the Court rejected Defendants’ claim that the subsequent Implementation Plan

11 and 2018 Memorandum represented a “new policy.” (Id. at 12.) Instead, the Court found that

12 the Implementation Plan and 2018 Memorandum “threaten the very same violations that caused

13 it and others to enjoin the Ban in the first place.” (Id.)

14

On April 30, 2018, Defendants filed a notice of appeal with the Ninth Circuit. (See Dkt.

15 No. 236.) On the same day, Defendants filed this motion requesting an expedited ruling no later

16 than May 4, 2018. (Dkt. No. 238.) After the Court declined to issue an expedited ruling (Dkt.

17 No. 240), Defendants filed a separate Motion for a Stay Pending Appeal in the Ninth Circuit.

18 See Karnoski v. Trump, No. 18-35347, Dkt. No. 3 (9th Cir. May 4, 2018). The Ninth Circuit has

19 yet to issue a ruling.

20

Discussion

21 I. Jurisdiction

22

While the filing of a notice of appeal generally divests a district court of jurisdiction,

23 Federal Rule of Civil Procedure 62(c) allows the Court “to issue further orders with respect to an

24

ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION - 2

Case 2:17-cv-01297-MJP Document 283 Filed 06/15/18 Page 3 of 6

1 injunction, even pending appeal, in order to preserve the status quo or ensure compliance with its

2 earlier orders.” Doe v. Trump, 284 F. Supp. 3d 1172 (W.D. Wash. 2018) (citing Nat. Res. Def.

3 Council, Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001)). The Court’s

4 exercise of jurisdiction may not “adjudicate anew the merits of the case” nor “materially alter the

5 status of the case on appeal.” Southwest Marine, 242 F.3d at 1166.

6 II. Motion to Stay

7

A stay pending appeal “is an intrusion into the ordinary processes of administration and

8 judicial review.” Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotation marks and

9 citation omitted). In determining whether to grant a stay, the Court considers: (1) whether

10 Defendants have made a strong showing that they are likely to succeed on the merits; (2) whether

11 Defendants will be irreparably injured absent a stay; (3) whether a stay will substantially injure

12 Plaintiffs and Washington; and (4) whether the public interest supports a stay. Id. at 434.

13

A. Likelihood of Success on the Merits

14

The Court finds that Defendants have not made a “strong showing” that they are likely to

15 succeed on the merits of their appeal.

16

First, each of the arguments raised by Defendants already has been considered and

17 rejected by the Court, and Defendants have done nothing to remedy the constitutional violations

18 that supported entry of a preliminary injunction in the first instance. Instead, Defendants

19 attempt, once again, to characterize the Implementation Plan and 2018 Memorandum as a “new

20 and different” policy, distinct from the one this Court and others enjoined. (See Dkt. No. 261 at

21 3.) The Court was not persuaded by this argument before, and it is not persuaded now.

22

Second, while Defendants claim—without explanation—that “the Ninth Circuit and/or

23 this Court ultimately . . . are highly likely to conclude that significant deference is appropriate”

24

ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION - 3

Case 2:17-cv-01297-MJP Document 283 Filed 06/15/18 Page 4 of 6

1 (Dkt. No. 238 at 5), whether any deference is due remains unresolved. (See Dkt. No. 233 at

2 24-27.) Defendants bear the burden of providing a “genuine” justification for the Ban. To

3 withstand judicial scrutiny, that justification must “describe actual state purposes, not

4 rationalizations” and must not be “hypothesized or invented post hoc in response to litigation.”

5 United States v. Virginia, 518 U.S. 515, 533, 535-36 (1996); see also Sessions v.

6 Morales-Santana, 137 S.Ct. 1678, 1696-97 (2012). To date, Defendants have steadfastly refused

7 to put before the Court evidence of any justification that predates this litigation. (See Dkt. No.

8 211.)

9

Finally, the Court notes that the Ban currently is enjoined by four separate courts. See

10 Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017); Stone v. Trump, 280 F. Supp. 3d 747 (D.

11 Md. 2017); Stockman v. Trump, No. 17-cv-1799-JGB-KK, Dkt. No. 79 (C.D. Cal. Dec. 22,

12 2017). As a practical matter, Defendants face the challenge of convincing each of these courts to

13 lift their injunctions before they may implement the Ban.

14

B. Likelihood of Irreparable Harm

15

The Court finds that Defendants have not shown that they will be irreparably harmed

16 without a stay. Defendants contend that unless stayed, the injunction “will irreparably harm the

17 government (and the public) by compelling the military to adhere to a policy it has concluded

18 poses substantial risks.” (Dkt. No. 238 at 2.) In particular, Defendants contend that allowing

19 transgender people to serve openly—as they have for nearly two years—threatens to “undermine

20 readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not

21 conducive to military effectiveness and lethality.” (Id. at 3.)

22

Since the preliminary injunction has been in effect, the Senate Committee on Armed

23 Services has heard testimony from high-ranking military officials on the effect of open service

24

ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION - 4

Case 2:17-cv-01297-MJP Document 283 Filed 06/15/18 Page 5 of 6

1 by transgender people. Army Chief of Staff General Mark Milley testified that he “monitor[s]

2 very closely” the situation and had received “precisely zero” reports of problems related to unit

3 cohesion, discipline, and morale. (Dkt. No. 255, Ex. 14 at 6.) Chief of Naval Operations

4 Admiral John Richardson testified that he, too, had received no negative reports, and that in his

5 experience, “[i]t’s steady as she goes.” (Dkt. No. 255, Ex. 15.) As this testimony makes clear,

6 Defendants’ hypothetical and conclusory claims are unsupported by evidence and do not

7 establish a likelihood of irreparable harm.

8

C. Injury to Plaintiffs and Washington and Impact on Public Interest

9

Having found that Defendants have not established either a likelihood of success on the

10 merits or a likelihood of irreparable harm absent a stay, the Court need not reach these remaining

11 factors. See Washington v. Trump, 847 F.3d at 1164. However, the Court also finds that these

12 factors do not support entry of a stay.

13

The Court already found that Plaintiffs and Washington are likely to suffer irreparable

14 injury absent a preliminary injunction, and for the same reasons, will be injured by a stay. (See

15 Dkt. No. 103 at 20-21.) Further, maintaining the injunction pending appeal advances the

16 public’s interest in a strong national defense, as it allows skilled and qualified service members

17 to continue to serve their country.

18

D. Scope of the Preliminary Injunction

19

The Court declines to stay the preliminary injunction insofar as it grants nationwide

20 relief. While Defendants contend that the injunction should be limited to the nine Individual

21 Plaintiffs (Dkt. No. 238 at 2), the Court disagrees. The scope of injunctive relief is to be

22 “dictated by the extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702

23

24

ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION - 5

Case 2:17-cv-01297-MJP Document 283 Filed 06/15/18 Page 6 of 6

1 (1979). The Ban, like the Constitution, would apply nationwide. Accordingly, a nationwide

2 injunction is appropriate.

3

Conclusion

4

Because Defendants have not established that a stay of the preliminary injunction is

5 appropriate, the Court DENIES Defendants’ Motion. The status quo shall remain “steady as she

6 goes,” and the preliminary injunction shall remain in full force and effect nationwide.

7

The clerk is ordered to provide copies of this order to all counsel.

8

Dated June 15, 2018.

9

10

11

A
The Honorable Marsha J. Pechman United States Senior District Court Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

ORDER DENYING MOTION TO STAY PRELIMINARY INJUNCTION - 6

 
 Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 1 of 58

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 2 of 58

2

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 3 of 58

KARNOSKI V. TRUMP

3

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 4 of 58

4

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 5 of 58

KARNOSKI V. TRUMP

5

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 6 of 58

6

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 7 of 58

KARNOSKI V. TRUMP

7

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 8 of 58

8

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 9 of 58

KARNOSKI V. TRUMP

9

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 10 of 58

10

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 11 of 58

KARNOSKI V. TRUMP

11

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 12 of 58

12

KARNOSKI V. TRUMP

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 13 of 58

KARNOSKI V. TRUMP

13

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 14 of 58

14

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 15 of 58

KARNOSKI V. TRUMP

15

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 16 of 58

16

KARNOSKI V. TRUMP

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”).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 17 of 58

KARNOSKI V. TRUMP

17

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.”

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 18 of 58

18

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 19 of 58

KARNOSKI V. TRUMP

19

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 20 of 58

20

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 21 of 58

KARNOSKI V. TRUMP

21

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 22 of 58

22

KARNOSKI V. TRUMP

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 23 of 58

KARNOSKI V. TRUMP

23

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 24 of 58

24

KARNOSKI V. TRUMP

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 25 of 58

KARNOSKI V. TRUMP

25

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 26 of 58

26

KARNOSKI V. TRUMP

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”).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 27 of 58

KARNOSKI V. TRUMP

27

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 28 of 58

28

KARNOSKI V. TRUMP

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 29 of 58

KARNOSKI V. TRUMP

29

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 30 of 58

30

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 31 of 58

KARNOSKI V. TRUMP

31

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 32 of 58

32

KARNOSKI V. TRUMP

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.”

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 33 of 58

KARNOSKI V. TRUMP

33

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 34 of 58

34

KARNOSKI V. TRUMP

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:

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 35 of 58

KARNOSKI V. TRUMP

35

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,

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 36 of 58

36

KARNOSKI V. TRUMP

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 37 of 58

KARNOSKI V. TRUMP

37

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 38 of 58

38

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 39 of 58

KARNOSKI V. TRUMP

39

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 40 of 58

40

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 41 of 58

KARNOSKI V. TRUMP

41

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 42 of 58

42

KARNOSKI V. TRUMP

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 43 of 58

KARNOSKI V. TRUMP

43

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).

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 44 of 58

44

KARNOSKI V. TRUMP

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:

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 45 of 58

KARNOSKI V. TRUMP

45

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?

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 46 of 58

46

KARNOSKI V. TRUMP

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 47 of 58

KARNOSKI V. TRUMP

47

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 48 of 58

48

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 49 of 58

KARNOSKI V. TRUMP

49

[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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 50 of 58

50

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 51 of 58

KARNOSKI V. TRUMP

51

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 52 of 58

52

KARNOSKI V. TRUMP

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 53 of 58

KARNOSKI V. TRUMP

53

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 54 of 58

54

KARNOSKI V. TRUMP

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 55 of 58

KARNOSKI V. TRUMP

55

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 56 of 58

56

KARNOSKI V. TRUMP

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

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 57 of 58

KARNOSKI V. TRUMP

57

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.

Case 2:17-cv-01297-MJP Document 338 Filed 06/14/19 Page 58 of 58

58

KARNOSKI V. TRUMP

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.

 
 Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 1 of 44

1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

RYAN KARNOSKI; STAFF SERGEANT 11 CATHRINE SCHMID; DREW LAYNE,

Case No. 2:17-cv-01297-MJP

formerly known as K.G.; CHIEF WARRANT 12 OFFICER LINDSEY MULLER; PETTY
OFFICER FIRST CLASS TERECE LEWIS; 13 PETTY OFFICER SECOND CLASS
PHILLIP STEPHENS; PETTY OFFICER 14 SECOND CLASS MEGAN WINTERS;

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

JANE DOE; HUMAN RIGHTS CAMPAIGN; 15 GENDER JUSTICE LEAGUE; AND

AMERICAN MILITARY PARTNER 16 ASSOCIATION N/K/A MODERN

MILITARY ASSOCIATION OF AMERICA, 17

18

Plaintiffs,

v.

19

DONALD J. TRUMP, in his official capacity

20 as President of the United States; the UNITED

21

STATES OF AMERICA; MARK ESPER, in his official capacity as Secretary of Defense;

22 and the UNITED STATES DEPARTMENT OF DEFENSE,

23

Defendants. 24

25

26

27

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

NEWMAN DU WORS LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 2 of 44

1

NATURE OF ACTION

2

1. This action challenges the constitutionality of an official federal policy of

3 discrimination against transgender people regarding military service. There are currently

4 thousands of transgender individuals who are bravely serving in our nation’s military across

5 myriad roles, and there are many transgender individuals who seek to follow the same noble

6 path. Like other service members, these transgender individuals are willing to place themselves

7 in harm’s way—and potentially pay the ultimate price—in service of our country. But their

8 President deprives them of an opportunity to serve on equal terms as others simply because they

9 are transgender.

10

2. The U.S. military previously excluded open service by transgender individuals but it

11 reversed that policy in 2016. Following extensive study and deliberation, the U.S. Department of

12 Defense (“DoD”) concluded that a ban on open service by transgender individuals was

13 inconsistent with the military’s goal of maintaining an all-volunteer force in which any

14 individual who is qualified to serve has the opportunity to do so. On June 30, 2016, DoD lifted

15 its previous categorical ban. For more than a year after that change, transgender individuals in

16 the military were able to serve openly and authentically alongside their fellow service members.

17 This change strengthened our nation’s military readiness.

18

3. On July 26, 2017, President Donald J. Trump unexpectedly and abruptly reversed

19 course on the military’s policy. He took to social media to announce, through three tweets, that

20 “the United States Government will not accept or allow . . . [t]ransgender individuals to serve in

21 any capacity in the U.S. Military. Our military must be focused on decisive and

22 overwhelming . . . victory and cannot be burdened with the tremendous medical costs and

23 disruption that transgender [sic] in the military would entail. Thank you[.]”

24

4. This unilateral decision to exclude transgender people from the military was made

25 without any meaningful deliberative process and was directly contrary to the considered

26 judgment of the military. For example, President Trump failed to engage in any meaningful

27 consultation with then-Secretary of Defense James N. Mattis (“Secretary Mattis”) or the other

28 range of military officials who would ordinarily be consulted about a policy change of this nature

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 3 of 44

1 and magnitude.

2

5. In the evening of Friday, August 25, 2017, President Trump followed up on his

3 tweets and implemented an official federal policy of discrimination against transgender

4 individuals in military service (“the Ban”). Among other things, President Trump mandated that

5 the U.S. military return to its earlier policy and practice of discrimination against transgender

6 people, including by discharging them. He also maintained and extended the current bar on

7 accession into the military of individuals known to be transgender. Last, he singled out for

8 adverse treatment the health care needs of transgender service members. President Trump

9 ordered that his directives “shall take effect on March 23, 2018,” and further ordered Secretary

10 Mattis to develop a “plan for implementing” them by February 21, 2018.

11

6. On February 22, 2018, Secretary Mattis submitted to President Trump the

12 Implementation Plan President Trump had ordered. The Implementation Plan states that

13 “transgender persons should not be disqualified from service solely on account of their

14 transgender status,”—but then proceeds to list a series of restrictions targeted solely at

15 “Transgender persons.” In particular, the Implementation Plan provides that:

16

a. “Transgender persons with a history or diagnosis of gender dysphoria are

17

disqualified from military service, except under . . . limited circumstances,”

18

including “(1) if they have been stable for 36 consecutive months in their

19

biological sex prior to accession”; “(2) Service members diagnosed with

20

gender dysphoria after entering into service may be retained if they do not

21

require a change of gender . . .”; and (3) if they are “currently serving” and

22

“have been diagnosed with gender dysphoria since the previous

23

administration’s policy took effect and prior to the effective date of this new

24

policy.”

25

b. “Transgender persons who require or have undergone gender transition are

26

disqualified from military service.”

27

c. “Transgender persons without a history or diagnosis of gender dysphoria,” and

28

who may thus escape one or both of the previous restrictions, may serve only

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 4 of 44

1

“in their biological sex.”

2 See Ex. A, Mattis Memorandum to the President, February 22, 2018 (together with

3 accompanying report described below, “the Implementation Plan”) (all emphases added).

4

7. Collectively, these bars, like the tweets and Presidential Memorandum that ordered

5 their development, implement the policy that transgender persons are not allowed to serve in

6 conformance with their gender identity. The few transgender service members who currently

7 remain by virtue of a so-called reliance exception or grandfather clause—for those “diagnosed

8 with gender dysphoria since the previous administration’s policy took effect”—are branded as

9 inherently unfit for service by the President and Department of Defense, and subject to unequal

10 terms and conditions for retention in service, simply because they are transgender.

11

8. In a March 23, 2018 memorandum, President Trump acknowledged receipt of the

12 Implementation Plan developed “[p]ursuant to [the President’s] memorandum of August 25,

13 2017.” He purported to “revoke” his earlier policies that had required the Implementation Plan,

14 and authorized the Secretary of Defense to carry out that same Implementation Plan.

15

9. Both the Ban and the Implementation Plan violate the equal protection and due

16 process guarantees of the Fifth Amendment and the free speech guarantee of the First

17 Amendment. They are unsupported by any compelling, important, or even rational justification.

18

PARTIES

19 A. Plaintiffs

20

10. Plaintiff Ryan Karnoski is a 24-year-old man who resides in Seattle, Washington. He

21 wishes to serve in the military. Mr. Karnoski is transgender.

22

11. Plaintiff Staff Sergeant Cathrine Schmid (“Staff Sergeant Schmid”) is a 35-year-old

23 woman who resides in Lakewood, Washington. She has served in the U.S. Army for

24 approximately fourteen-and-a-half years. Staff Sergeant Schmid is transgender.

25

12. Plaintiff Drew Layne, formerly known as K.G., is an 18-year-old man who resides in

26 Corpus Christi, Texas. He wishes to serve in the military. Mr. Layne is transgender.

27

13. Plaintiff Chief Warrant Officer Lindsey Muller (“Chief Warrant Officer Muller”) is a

28 37-year-old woman who resides in Poplar Bluff, Missouri. She has served in the U.S. Army for

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 5 of 44

1 more than nineteen years. Chief Warrant Officer Muller is transgender.

2

14. Plaintiff Petty Officer First Class Terece Lewis (“Petty Officer Lewis”) is a 35-year-

3 old woman who resides in Bremerton, Washington. She has served in the U.S. Navy for

4 approximately sixteen years. Petty Officer Lewis is transgender.

5

15. Plaintiff Petty Officer Second Class Phillip Stephens (“Petty Officer Stephens”) is a

6 31-year-old man who resides in Crestview, Florida. He has served in the U.S. Navy for roughly

7 seven years. Petty Officer Stephens is transgender.

8

16. Plaintiff Petty Officer Second Class Megan Winters (“Petty Officer Winters”) is a

9 31-year-old woman who resides in Alexandria, Virginia. She has served in the U.S. Navy for

10 approximately seven years. Petty Officer Winters is transgender.

11

17. Plaintiff Jane Doe is a 30-year-old woman. She currently serves in the U.S. military.

12 She is transgender. In order to protect her, she has sought leave to proceed as a Doe plaintiff and

13 does not allege her further details about where she resides or her military service.

14

18. Plaintiff Human Rights Campaign (“HRC”) is the largest national lesbian, gay,

15 bisexual, transgender, and queer (“LGBTQ”) civil rights organization in America. HRC’s

16 principal place of business is in Washington, D.C.

17

19. Plaintiff Gender Justice League (“GJL”) is a Washington state gender and sexuality

18 civil and human rights organization. GJL’s principal place of business is in Seattle, Washington.

19

20. Plaintiff American Military Partner Association n/k/a Modern Military Association

20 of America (“MMAA”) is the nation’s largest organization of LGBTQ military families and their

21 allies. MMAA’s principal place of business is in Washington, D.C. (HRC, GJL, and MMAA are

22 referred to collectively as the “organizational plaintiffs.”)

23 B. Defendants

24

21. President Donald J. Trump is the President of the United States of America and

25 Commander in Chief of the U.S. military. President Trump instituted the Ban and

26 Implementation Plan.

27

22. The United States of America encompasses all federal agencies and departments

28 responsible for implementing the Ban and the Implementation Plan, including the U.S.

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 4 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 6 of 44

1 Department of Defense and the Department of Homeland Security.

2

23. Secretary Mark Esper is the Secretary of the U.S. Department of Defense. He is

3 responsible for the implementation of the Ban and for the administration and enforcement of the

4 Implementation Plan.

5

24. The U.S. Department of Defense is an executive branch department of the U.S.

6 federal government composed of the office of the Secretary of Defense; the Joint Chiefs of Staff;

7 the Joint Staff; America’s Defense Agencies; the Department of Defense Field Activities; the

8 Departments of the Army, Navy, and Air Force; the unified and specified combatant commands;

9 such other offices, agencies, activities, and commands as may be established or designated by

10 law or by the President; and all offices, agencies, activities, and commands under any of their

11 control or supervision. Under the direction of Secretary Esper, DoD is also responsible for

12 administration and enforcement of the Ban and Implementation Plan.

13

JURISDICTION AND VENUE

14

25. Subject matter jurisdiction exists under 28 U.S.C. §§ 1331 and 1346 because this

15 action arises under, is founded upon, and seeks to redress the deprivation of rights secured by,

16 the United States Constitution.

17

26. Venue is proper in the Western District of Washington under 28 U.S.C. § 1391(e).

18 Mr. Karnoski, Staff Sergeant Schmid, and GJL all reside within this district. In addition, the Ban

19 and Implementation Plan are enforced, and their impact felt, in this district. A substantial part of

20 the events or omissions that gave rise to Plaintiffs’ claims, including particularly those of Mr.

21 Karnoski, HRC, and GJL, occurred in King County, Washington.

22

27. This Court has the authority to enter a declaratory judgment and to provide

23 preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of

24 Civil Procedure and 28 U.S.C. §§ 2201 and 2202.

25

28. This Court has personal jurisdiction over Defendants because their enforcement of

26 the Ban and the Implementation Plan occurs within Washington.

27

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 5 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 7 of 44

1

FACTUAL ALLEGATIONS

2 A. Background Information Regarding Transgender Individuals

3

29. Gender identity is a person’s fundamental, internal sense of belonging to a particular

4 gender. It is a core characteristic of human identity that everyone possesses. Gender identity is

5 innate, biologically rooted, and fixed at an early age.

6

30. Although most people have a gender identity that matches their sex assigned at birth,

7 this is not the case for transgender people, who are defined as transgender because their gender

8 identity does not match the sex they were assigned at birth. Transgender people have existed

9 throughout human history, although understanding of transgender people has grown in modern

10 times.

11

31. An individual’s sex is generally assigned at birth based on external genitalia. But

12 other sex-related characteristics can include chromosomes, hormone levels, internal reproductive

13 organs, and gender identity.

14

32. When someone’s sex-related characteristics are not in typical alignment with each

15 other, gender identity is the critical determinant of sex. Attempts to change an individual’s

16 gender identity to bring it into alignment with the sex that the individual was assigned at birth are

17 ineffective and potentially harmful.

18

33. The discordance between one’s gender identity and the sex one was assigned at birth

19 can be associated with clinically significant distress, which is known as gender dysphoria.

20 Gender dysphoria can be treated in accordance with internationally recognized standards of care.

21

34. Living in a manner consistent with one’s gender identity is critical to the health and

22 well-being of transgender people and is a key aspect of treatment for gender dysphoria. The

23 process by which transgender individuals come to live in a manner consistent with their gender

24 identity, rather than the sex they were assigned at birth, is known as transition.

25

35. The steps that transgender people take to transition are not identical, but they

26 generally include social, legal, and medical transition.

27

36. Social transition entails the adoption of a gender role matching one’s gender identity.

28 For example, for a man who is transgender, social transition can include wearing typical male

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 6 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 8 of 44

1 attire, using male pronouns, and otherwise living as a man in all aspects of everyday life.

2

37. Legal transition involves steps to conform one’s legal identity to one’s gender

3 identity, such as legally changing one’s name and updating the name and gender marker on one’s

4 driver’s license and birth certificate.

5

38. Medical transition includes treatment that brings one’s body into alignment with

6 one’s gender identity, such as hormone therapy. Whether any particular treatment is medically

7 necessary or even appropriate, however, depends on the needs of the individual.

8

39. These various components associated with transition—social, legal, and medical

9 transition—do not change an individual’s gender, which is already determined by gender

10 identity, but instead bring the individual’s social presentation, legal identity, and physical

11 appearance into greater typical alignment with their gender.

12 B. Plaintiff Ryan Karnoski

13

40. Plaintiff Ryan Karnoski comes from a family with a legacy of military service. His

14 grandfather and step-grandfather served in the Army during the Korean War, and other of his

15 relatives have served in the Army and Navy.

16

41. Mr. Karnoski’s desire to join the military came into sharper focus following the

17 death of his cousin, who was killed in action in Afghanistan in 2009. His cousin’s death—and

18 the toll that it took on surviving family members—further impressed upon Mr. Karnoski the

19 tremendous sacrifice that service members make for their country. Mr. Karnoski also realized

20 that his own desire to serve in the military was motivated by more than simply a family legacy: it

21 was a personal calling in life for him, and it is something that he has long dreamt of being able to

22 fulfill.

23

42. Mr. Karnoski has worked as a mental health clinician in Seattle, Washington.

24

43. Mr. Karnoski holds a Masters in Social Work from the University of Washington

25 School of Social Work’s Child Welfare Training Advancement Program. He also holds a

26 Bachelor of Arts degree in both Social Welfare and Gender, Women, and Sexuality Studies from

27 the University of Washington. Mr. Karnoski is currently registered with the Selective Service.

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 7 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 9 of 44

1

44. But for the Ban and the Implementation Plan, and Defendants’ enforcement of them

2 both, Mr. Karnoski would seek to join the military, and he is ready and able to pursue a military

3 career. In fact, he contacted military recruiters in or around September 2016, but he was open

4 about his transgender status and discussed with a recruiter having to wait until the accessions bar

5 was lifted. Mr. Karnoski was referred to recruiting offices in King County, Washington, his point

6 of contact for further communications regarding his accession.

7

45. Mr. Karnoski would like to put his social work skills to use for the military. Social

8 work is an area for which there can be significant need in the military, including in the Army and

9 Navy. Given that Mr. Karnoski holds a master’s degree in social work, he aspires to serve as an

10 officer in the military.

11

46. Mr. Karnoski is transgender. He was assigned the sex of female at birth but his

12 gender identity is male.

13

47. Mr. Karnoski began to come to terms with his gender identity approximately seven

14 years ago.

15

48. Mr. Karnoski began living openly as male in 2014.

16

49. In consultation with health care professionals, Mr. Karnoski has taken clinically

17 appropriate steps to transition.

18

50. Mr. Karnoski has taken legal steps to transition. He legally changed his first name to

19 Ryan. He also changed his name and gender marker to male on his driver’s license, birth

20 certificate, social security card and records, and passport.

21

51. Mr. Karnoski has engaged in speech and conduct disclosing his transgender status

22 and expressing his gender identity and wants to continue to be able to do so.

23 C. Plaintiff Staff Sergeant Cathrine Schmid

24

52. Plaintiff Staff Sergeant Cathrine (“Katie”) Schmid was born at K.I. Sawyer Air

25 Force Base, Michigan, and was raised in Portland, Oregon. She has always been a patriotic

26 American with a desire to serve others and was drawn to opportunities presented by serving in

27 the Army. She is proud to put on her uniform each day and serve her country.

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 8 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 10 of 44

1

53. Staff Sergeant Schmid holds the military occupational specialty of Signals

2 Intelligence Analyst within the Army, currently performing duties as Brigade Land and

3 Ammunition Manager. Before her current role, she performed duties as a Signals Intelligence

4 Analyst, All-Source Analysis System Master Analyst, Human Intelligence Collector, and

5 Counterintelligence Agent. She joined the Army in 2005.

6

54. Staff Sergeant Schmid is transgender. She was assigned the sex of male at birth but

7 has a female gender identity. She knew from a young age in life that she was female.

8

55. Staff Sergeant Schmid began to come to terms with her gender identity

9 approximately six years ago. At that time, she started to see a mental health professional who

10 diagnosed her with gender dysphoria.

11

56. Staff Sergeant Schmid began living openly as a woman around 2014.

12

57. In consultation with health care professionals, Staff Sergeant has taken clinically

13 appropriate steps to transition, and she has further transition-related health care needs.

14

58. Staff Sergeant Schmid has taken legal steps to transition. She legally changed her

15 first name to Cathrine. She also changed her name and changed her gender marker to female on

16 her driver’s license, passport, and social security records.

17

59. Staff Sergeant Schmid has worked with her chain of command throughout her

18 transition, and both they and other enlisted personnel have been supportive of her throughout that

19 process. Her gender marker in the military’s personnel management systems (including the

20 Defense Enrollment Eligibility Reporting System (“DEERS”)) reflects that she is female.

21

60. She is recognized and treated as female in all aspects of military life, including in

22 social interactions and in her compliance with women’s grooming and physical training

23 requirements.

24

61. The fact that Staff Sergeant Schmid is transgender has not prevented her from doing

25 her job in the military nor has it prevented others from doing their jobs in the military. Staff

26 Sergeant Schmid performs valuable services for the Army, and her performance of those duties

27 strengthen our nation’s military readiness.

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 9 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 11 of 44

1

62. Being able to serve openly as a transgender woman has made Staff Sergeant Schmid

2 a stronger asset for the military. She is able to function as a productive, healthy member of the

3 military, and she is able to forge stronger relationships with others in her unit.

4

63. In June 2017, Staff Sergeant Schmid submitted an application to become an Army

5 warrant officer, a position that her superiors encouraged her to pursue. A warrant officer is a

6 highly specialized expert and trainer in a technical area such as aviation, military police, or, in

7 Staff Sergeant Schmid’s case, intelligence. Her application was approved at the initial stages.

8

64. But Staff Sergeant Schmid was informed in writing in July 2017 that her application

9 was placed on hold, and thus was not being considered further at the time, because of the

10 accessions bar, which not only excluded transgender individuals from enlistment but also from

11 appointment as officers. In February 2018, her application received a form rejection, despite the

12 fact that numerous warrant officers had encouraged her to apply, her application was strong, and

13 the military has need for qualified warrant officers. The DoD’s perception that people who have

14 transitioned are unfit for military service—as expressed in the Ban and Implementation Plan—

15 had an adverse impact on her application, even though she was otherwise qualified and a good fit

16 for the job.

17

65. Staff Sergeant Schmid is presently subject to different terms and conditions for

18 retention in service than those who are not transgender, because she is subject to discharge under

19 the circumstances specified in the so-called grandfather clause to the Implementation Plan. That

20 policy brands her job performance as inferior based solely on her transgender status.

21

66. Staff Sergeant Schmid has engaged in speech and conduct disclosing her transgender

22 status and expressing her gender identity, including by coming out to her chain of command and

23 her fellow service members, taking steps to transition, and living openly as a woman in military

24 life. She wants to continue to be able to engage in speech and conduct disclosing her transgender

25 status and expressing her gender identity.

26 D. Plaintiff Drew Layne

27

67. Plaintiff Drew Layne was born in Alice, Texas and currently resides in Corpus

28 Christi, Texas. Mr. Layne’s great grandfather and great uncle both served in the Army, and the

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 10 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 12 of 44

1 former earned a Purple Heart for his service. Mr. Layne is proud of his family’s history of

2 service and has a strong desire to serve his country by joining the military as well.

3

68. After years of consideration, research, and speaking to veterans of different services,

4 Mr. Layne decided to pursue a career in the military. Specifically, Mr. Layne wants to serve as a

5 Survival, Evasion, Resistance and Escape Specialist in the Air Force. This position entails

6 training other Airmen on survival-related techniques needed, for various terrains and climates, in

7 the event that their aircraft goes down.

8

69. Existing regulations permit individuals to join the military at age 17 with parental

9 consent. Based on his age, Mr. Layne has been eligible to join the military since August 2017.

10 Mr. Layne’s mother and next friend, Laura Garza, supports Mr. Layne in his desire to join the

11 military.

12

70. Mr. Layne received his high school diploma in the summer of 2017. Mr. Layne had

13 long planned and hoped to join the Air Force upon completion of high school.

14

71. In preparation for enlistment, Mr. Layne communicated with an Air Force recruiter

15 in early July 2017. When Mr. Layne disclosed to the recruiter that he is transgender, the recruiter

16 stopped communicating with Mr. Layne.

17

72. But for the Ban and the Implementation Plan, and Defendants’ enforcement of them

18 both, Mr. Layne would seek to join the military, and he is ready and able to pursue a military

19 career.

20

73. Mr. Layne is transgender. He was assigned the sex of female at birth but his gender

21 identity is male.

22

74. Mr. Layne came out about his gender identity in the summer of 2015. He has lived

23 openly as male since that time.

24

75. In consultation with health care professionals, Mr. Layne has taken clinically

25 appropriate steps to transition.

26

76. Mr. Layne has engaged in speech and conduct disclosing his transgender status and

27 expressing his gender identity, including by coming out to the Air Force recruiter, taking steps to

28 transition, and living openly as male in his everyday life. He wants to be able to continue to

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 11 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 13 of 44

1 engage in speech and conduct disclosing his transgender status and expressing his gender

2 identity.

3 E. Plaintiff Chief Warrant Officer Muller

4

77. Plaintiff Chief Warrant Officer Muller is a Chief Warrant Officer 3 in the U.S.

5 Army. She enlisted in the Army in 2000 and has been serving for more than nineteen years.

6

78. Chief Warrant Officer Muller chose the military as a career path because of the

7 abundant job opportunities and her strong sense of patriotism. She has proudly served in combat

8 and takes great pride in wearing the uniform to serve her country. Chief Warrant Officer Muller

9 has served in Operation Iraqi Freedom, Operation Enduring Freedom, and multiple assignments

10 in the Republic of Korea.

11

79. Chief Warrant Officer Muller’s military occupation specialty is Attack Helicopter

12 Pilot/Aviator within the Army. She has experience flying Apache attack helicopters in combat

13 missions, and recently served as an Aviation Safety Officer. Her duties have involved providing

14 combat support and combat service support to various echelons of commands. She has served as

15 advisor to Commanders on all aviation and ground related safety matters. She managed the

16 Battalion Commander’s Safety Program, where she developed and integrated safety policies,

17 safety goals, mission objectives, and priorities into daily operations.

18

80. The military has invested significant resources in training Chief Warrant Officer

19 Muller. Her well-honed skills and leadership position make her a highly valued member of the

20 military. Chief Warrant Officer Muller’s performance has been consistently recognized

21 throughout her career in military service.

22

81. Chief Warrant Officer Muller wants to continue serving in the Army until she retires.

23

82. Chief Warrant Officer Muller is transgender. She was assigned the sex of male at

24 birth. She has known for more than fourteen years that she is female, and began to come to terms

25 with her gender identity approximately seven years ago. At that time, Chief Warrant Officer

26 Muller started to see a mental health professional who diagnosed her with gender dysphoria.

27

83. Chief Warrant Officer Muller began living openly as a woman in 2014.

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 12 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 14 of 44

1

84. In consultation with health care professionals, Chief Warrant Officer Muller has

2 taken clinically appropriate steps to transition.

3

85. Chief Warrant Officer Muller has taken legal steps to transition. She has legally

4 changed her first name to Lindsey. She has also changed her name and changed her gender

5 marker to female on her driver’s license, passport, and social security records.

6

86. The fact that Chief Warrant Officer Muller is transgender has never prevented her

7 from doing her job as Aviation Safety Officer nor has her gender identity prevented others from

8 doing their jobs in the military. Chief Warrant Officer Muller performs valuable services for the

9 Army, and her performance of those duties strengthens our nation’s military readiness.

10

87. After the DoD announced the Implementation Plan, the military permanently

11 relegated Chief Warrant Officer Muller to a desk job in a non-combat ground unit. That decision

12 was influenced by the Implementation Plan’s official affirmation of the President’s view, first

13 expressed by tweet in 2017, that people who transition are not fit to serve.

14

88. The Ban and Implementation Plan have concretely weakened military readiness by

15 forcing Chief Warrant Officer Muller out of the highly specialized role she has performed with

16 excellence for nearly two decades. In addition, Chief Warrant Officer Muller has lost concrete

17 economic benefits and cannot compete with her peers for promotions because her specialized

18 training in attack helicopters is irrelevant in the ground unit.

19

89. Chief Warrant Officer Muller is presently subject to different terms and conditions

20 for retention in service than those who are not transgender, because she is subject to discharge

21 under the circumstances specified in the so-called grandfather clause to the Implementation Plan.

22 The Implementation Plan, like the Presidential Memorandum that demanded it, also brands her

23 job performance as inferior based solely on her transgender status.

24

90. Chief Warrant Officer Muller has engaged in speech and conduct disclosing her

25 transgender status and expressing her gender identity, including by coming out to her chain of

26 command and fellow service members, taking steps to transition, and living openly as a woman

27 in military life. She wants to continue to be able to engage in speech and conduct disclosing her

28 transgender status and expressing her gender identity.

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 13 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 15 of 44

1 F. Plaintiff Petty Officer Lewis

2

91. Plaintiff Petty Officer Lewis is steadfastly dedicated to the mission of the U.S.

3 Navy—to maintain, train and equip combat-ready Naval forces capable of winning wars,

4 deterring aggression and maintaining freedom of the seas. During her sixteen years of service,

5 Petty Officer Lewis has defended oil platforms in the Arabian Gulf, boarded vessels and seized

6 tons of cocaine en route to the U.S. from South America, protected the shipping lanes from

7 Somali pirates, and defended freedom of navigation in the South China Sea.

8

92. Petty Officer Lewis has served in a variety of roles within the Navy, including as an

9 Engineman and Machinists Mate, as a public affairs officer for a major shore command, and as a

10 career counselor advising Sailors of their career options.

11

93. Petty Officer Lewis is transgender. She was assigned the sex of male at birth.

12 However, she has known since approximately early 2013 that she is female and began to come to

13 terms with her gender identity shortly thereafter. Petty Officer Lewis then began seeing a mental

14 health professional who diagnosed her with gender dysphoria.

15

94. Petty Officer Lewis began living openly as a woman in late 2016.

16

95. Petty Officer Lewis is taking medical steps to bring her body into conformity with

17 her female gender identity. In consultation with her physician, Petty Officer Lewis began

18 hormone therapy on July 25, 2017, one day before President Trump released the transgender

19 military ban on Twitter.

20

96. Petty Officer Lewis has taken legal steps to transition. She legally changed her first

21 name to Terece and changed her driver’s license and social security documentation.

22

97. Petty Officer Lewis worked with her chain of command throughout her transition,

23 and both they and other enlisted personnel have been supportive.

24

98. The fact that Petty Officer Lewis is transgender has not prevented her from doing her

25 job in the military. Petty Officer Lewis performs a valuable service for the Navy that strengthens

26 military readiness; excluding her from the military based on her transgender status would

27 weaken military readiness.

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 14 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 16 of 44

1

99. Being able to serve openly as a transgender woman makes Petty Officer Lewis a

2 stronger asset for the military. Because she has been able to serve openly, she has been able to

3 function as a productive, healthy member of the military, without the distress that would

4 otherwise accompany untreated gender dysphoria, and she has been able to forge stronger

5 relationships with others in her unit, without having to pretend to live as someone she is not.

6

100. If permitted to do so, Petty Officer Lewis will re-enlist in the military following the

7 expiration of her current term of service. Indeed, she intends to serve honorably in the military

8 until the age of retirement.

9

101. Petty Officer Lewis is presently subject to different terms and conditions for

10 retention in service than those who are not transgender, because she is subject to discharge under

11 the circumstances specified in the so-called grandfather clause to the Implementation Plan. The

12 Implementation Plan brands her job performance as inferior based solely on her transgender

13 status.

14

102. Petty Officer Lewis has engaged in speech and conduct disclosing her transgender

15 status and expressing her gender identity, including by coming out to her chain of command and

16 fellow service members, taking steps to transition, and living openly as a woman in military life.

17 She wants to continue to be able to engage in speech and conduct disclosing her transgender

18 status and expressing her gender identity.

19 G. Plaintiff Petty Officer Second Class Stephens

20

103. Over the past seven years, Plaintiff Petty Officer Stephens has primarily served as an

21 Aviation Structural Mechanic within the Navy. Petty Officer Stephens has worked on the flight

22 deck of an aircraft carrier, ensuring that Navy aircraft pilots are able to safely eject from their

23 aircraft in the event of an emergency. He has performed this duty with honor and precision both

24 during simulated and active duty scenarios, including a deployment to the Persian Gulf.

25

104. Petty Officer Stephens proudly joined the Navy to serve his country and for the

26 security and stability that a military career provides.

27

105. Petty Officer Stephens is transgender. He was assigned the sex of female at birth, but

28 has known since he was a young child that he is male.

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 15 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 17 of 44

1

106. Petty Officer Stephens began to come to terms with his gender identity

2 approximately four years ago and thereafter started to see a mental health professional who

3 diagnosed him with gender dysphoria.

4

107. On June 30, 2016, Petty Officer Stephens was deployed in the Persian Gulf. When he

5 read that the ban on military service by transgender individuals was being lifted, he was filled

6 with incredible relief and joy. Following this change in policy, Petty Officer Stephens decided to

7 remain in the Navy and transition. He began living openly as a man in August 2016, as soon as

8 he returned home from deployment.

9

108. Petty Officer Stephens began scheduling the necessary medical appointments and

10 phone interviews to acquire the required transition-related paperwork to submit to his

11 Commanding Officer. He began taking medical steps to bring his body into conformity with his

12 male gender identity. In consultation with his physician, Petty Officer Stephens began hormone

13 therapy in November 2016. This approved treatment plan included surgical treatment, which he

14 completed in April 2018. He plans on pursuing other gender-affirming care in the future.

15

109. Petty Officer Stephens is taking legal steps to transition. He will be legally changing

16 his first name to Phillip and will be changing his name and gender marker on his driver’s license

17 and social security records.

18

110. Petty Officer Stephens has worked with his chain of command throughout his

19 transition, and both they and other enlisted personnel have been supportive. Since coming out to

20 his chain of command, other service members have addressed Petty Officer Stephens by male

21 pronouns, which match his gender identity. He has been known, accepted, and treated as the man

22 that he is.

23

111. The fact that Petty Officer Stephens is transgender has not prevented him from doing

24 his job in the military. He performs a valuable service for the Navy that strengthens military

25 readiness—keeping our nation’s aircraft systems safe and operational. Conversely, his exclusion

26 from the military on the basis of his transgender status would weaken military readiness.

27

112. Petty Officer Stephens is presently subject to different terms and conditions for

28 retention in service than those who are not transgender, because he is subject to discharge under

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 16 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 18 of 44

1 the circumstances specified in the so-called grandfather clause to the Implementation Plan. The

2 Implementation Plan brands his job performance as inferior based solely on his transgender

3 status.

4

113. Petty Officer Stephens has engaged in speech and conduct disclosing his transgender

5 status and expressing his gender identity, including by coming out to his chain of command and

6 fellow service members, taking steps to transition, and living openly as a man in military life. He

7 wants to continue to be able to engage in speech and conduct disclosing his transgender status

8 and expressing his gender identity.

9 H. Plaintiff Petty Officer Second Class Winters

10

114. Plaintiff Petty Officer Winters is an Information Systems Technician in the U.S.

11 Navy. During her seven years serving in the military, Petty Officer Winters has received

12 specialized training and provided mission-related information technology and services to the

13 Office of Naval Intelligence, its subordinate commands, the Fleet, and Joint Forces commands.

14 Petty Officer Winters has performed her job duties in support of the Global War on Terrorism.

15

115. Petty Officer Winters provides a valuable service for the Navy intelligence

16 community that strengthens military readiness—providing information technology and services

17 that, in turn, allows other service members to do their jobs.

18

116. Growing up as the child of a veteran, the military’s core values and creeds have been

19 ingrained into every aspect of her life from a young age. The only career path that Petty Officer

20 Winters has ever envisioned for herself has been the military.

21

117. Petty Officer Winters is transgender. She was assigned the sex of male at birth, but

22 she has known since approximately 2001 that she is female.

23

118. After struggling for many years to receive family acceptance, Petty Officer Winters

24 began to come to terms with accepting and living openly in her gender identity approximately

25 three-and-a-half years ago. She then started to see a mental health professional who diagnosed

26 her with gender dysphoria.

27

119. When Petty Officer Winters found out, in June 2016, that the ban on open

28 transgender military service had been lifted, she was absolutely ecstatic. She had informed her

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 17 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 19 of 44

1 family that she was transgender immediately prior to the announcement because she realized that

2 she needed to finally live her true, authentic life. Petty Officer Winters hoped to do that while

3 continuing to proudly serve the country in the Navy.

4

120. Following the lift on the ban, Petty Officer Winters began living openly as a woman.

5 She disclosed her transgender status and expressed her gender identity openly in the military in

6 reliance on the open service ban having been lifted.

7

121. Petty Officer Winters has started taking medical steps to bring her body into

8 conformity with her female gender identity. In June 2016, Navy medical officers created an

9 individualized treatment plan for her gender transition. In consultation with her physician, Petty

10 Officer Winters began hormone therapy in July 2016.

11

122. Petty Officer Winters’s treatment plan also includes medically necessary surgical

12 treatment, but the military has repeatedly delayed or denied her that treatment. Although Petty

13 Officer Winters has requested a consultation with an appropriate surgeon, for example, her

14 requests have been dismissed on account of purported confusion about the Implementation Plan,

15 delays caused by a purported need to research processes required under the policy, and delays

16 without any explanation. Petty Officer Winters has been told by various medical officials that the

17 delays are justified because she might not be in the military soon because of the Implementation

18 Plan, despite its so-called grandfather clause. She continues to check on the status of her

19 consultation at least every month, to no avail.

20

123. Petty Officer Winters has taken legal steps to transition. She has legally changed her

21 first and middle names to Megan Dawn. She has also changed her name on her driver’s license

22 and her social security card and records.

23

124. Petty Officer Winters has also changed her gender marker in DEERS. She has

24 worked with her chain of command throughout her transition. Since coming out, others have

25 mostly addressed Petty Officer Winters by female pronouns, which match her gender identity.

26

125. The fact that Petty Officer Winters is transgender has not prevented her from doing

27 her job in the military. She performs a valuable service for the Navy that strengthens military

28 readiness. Excluding Petty Officer Winters from the military on the basis of her transgender

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 18 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 20 of 44

1 status would weaken military readiness.

2

126. Petty Officer Winters intends to serve honorably in the military until retirement.

3

127. Petty Officer Winters is presently subject to different terms and conditions for

4 retention in service than those who are not transgender, because she is subject to discharge under

5 the circumstances specified in the so-called grandfather clause to the Implementation Plan. The

6 Implementation Plan brands her job performance as inferior based solely on her transgender

7 status.

8

128. Petty Officer Winters has engaged in speech and conduct disclosing her transgender

9 status and expressing her gender identity, including by coming out to her chain of command and

10 fellow service members, taking steps to transition, and living openly as a woman in military life.

11 She wants to continue to be able to engage in speech and conduct disclosing her transgender

12 status and expressing her gender identity.

13 I. Plaintiff Jane Doe

14

129. Plaintiff Jane Doe currently serves in the U.S. Military.

15

130. Jane Doe joined the military to serve her country and for the security and stability

16 that a military career provides. She takes pride in her role in protecting our country and helping

17 others save innocent lives.

18

131. Jane Doe is transgender, although she has not yet transitioned to living openly as a

19 woman. She was assigned the sex of male at birth, but she has known since she was twenty years

20 old that she is female. Jane Doe has long hoped to be able to transition to living openly as a

21 woman, but the prospect of doing so felt unattainable in the past, without a supportive

22 environment in which to transition.

23

132. On or around June 30, 2016, Jane Doe became aware that the ban on open military

24 service by transgender individuals had been lifted. She was very excited and nervous about the

25 possibility of serving openly as a woman. In October 2016, she began extensively reviewing the

26 materials the military was releasing to implement the lifting of the ban. In December 2016, she

27 attended her command-level training on the new policy. Around that time, she decided to come

28 out as transgender to select colleagues whom she felt she could trust. She also researched what

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 19 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 21 of 44

1 was required to formally change her gender marker in DEERS.

2

133. Jane Doe decided to begin her legal and medical transition once she was posted at

3 her next assigned location. She planned to time and structure her transition so that it was as

4 smooth as possible for her colleagues and herself. Jane Doe wanted to give her Commanding

5 Officer plenty of time to prepare her unit and for other service members at her next assigned

6 location to get to know her as a valuable individual member of the team. She also wanted to give

7 herself some time to come out. She transferred to this assigned location in July 2017.

8

134. On July 26, 2017, President Trump posted three tweets that said that transgender

9 people would not be able to serve in the military “in any capacity.” After Jane Doe saw the

10 President’s tweets, she decided to put her plans—to transition, come out as transgender, live

11 openly as a woman, and change her gender marker—on hold, fearing negative consequences.

12

135. Because of both the Ban and the Implementation Plan, Jane Does has not come out

13 to anyone in her chain of command. She is open to a few select individuals with whom she

14 serves, as well as a group of veterans with whom she communicates about her gender identity for

15 support.

16

136. As a result of the Ban and the Implementation Plan, Jane Doe has been forced to

17 postpone the steps required for her to transition and she questions whether she will be able to

18 continue serving in the military, a career that she loves and wants to continue.

19

137. Jane Doe is terrified that her career will be brought to an early end because of the

20 President’s decision to ban transgender individuals from military service. If she transitions, she

21 will lose her career and everything that comes with it. If she does not transition, then she gives

22 up the expression of herself on the most fundamental level and, instead, must continue living as

23 someone that she is not.

24 J. Plaintiff Human Rights Campaign

25

138. HRC is a private, non-profit membership organization with approximately 508,000

26 members throughout the United States, including transgender members serving in the United

27 States military and transgender members who wish to serve in the United States military. The

28 mission of HRC is to end discrimination against LGBTQ people and realize a world that

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 20 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 22 of 44

1 achieves fundamental fairness and equality for all, including ending discrimination against

2 LGBTQ people who wish to serve their country.

3

139. HRC sues on behalf of its members, including Mr. Karnoski, Staff Sergeant Schmid,

4 and other prospective and current transgender service members who are currently adversely

5 affected by the Ban and the Implementation Plan.

6 K. Plaintiff Gender Justice League

7

140. GJL is a civil and human rights membership organization that, as relevant here,

8 advocates on behalf of transgender individuals in Washington state. It seeks to create a

9 community for transgender people and to empower them to combat the structural oppression,

10 discrimination, and violence they face in their daily lives.

11

141. GJL sues on behalf of its members, including Mr. Karnoski, Staff Sergeant Schmid,

12 and other prospective and current transgender service members who are currently adversely

13 affected by the Ban and the Implementation Plan.

14 L. Plaintiff American Military Partner Association n/k/a Modern Military Association of

15

America

16

142. With more than 50,000 members and supporters across the country and around the

17 world, MMAA’s mission is to connect, support, honor, and serve the partners, spouses, families,

18 and allies of America’s LGBTQ service members and veterans.

19

143. MMAA’s members include transgender individuals currently serving in the military,

20 including for example, Chief Warrant Officer Muller, Staff Sergeant Schmid, Petty Officer

21 Stephens, and Petty Officer Megan Winters. MMAA’s members also include transgender

22 individuals who wish to access into the military, including, for example, Mr. Karnoski. MMAA

23 sues on behalf of its individual transgender members who are directly affected by the Ban and

24 the Implementation Plan.

25 M. Prior Military Ban Against Transgender Individuals

26

144. There has never been a federal statute excluding transgender people from military

27 service. Instead, the military previously had a policy of excluding transgender people from

28 service based on DoD and service-specific rules and regulations.

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 21 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 23 of 44

1

145. This earlier military policy was based on an inaccurate, historical, pathological view

2 that regarded transgender people as deviants. This view was discredited long ago following

3 psychological and medical advances in the understanding of gender identity and of transgender

4 people.

5

146. Despite this earlier policy of exclusion, transgender people have always served in the

6 military but, as noted by former Secretary of Defense Ash Carter (“Secretary Carter”), “they

7 often had to serve in silence alongside their fellow comrades in arms.”

8

147. Transgender people have played essential, mission-critical roles in the military, even

9 when they have not had the ability to serve openly. For example, a transgender woman served on

10 Navy SEAL Team 6 and earned a Purple Heart and a Bronze Star, among many other honors and

11 medals.

12

148. According to a 2014 study conducted by the Williams Institute at the University of

13 California, Los Angeles, there are an estimated 134,300 transgender people who are veterans or

14 are retired from guard or reserve service.

15

149. It is a statistical certainty that there have been transgender people who have

16 sacrificed their lives in the course of military service to the United States.

17 N. Rescission of Prior Military Ban Against Transgender Individuals

18

150. The military’s prior ban against transgender people was the subject of extensive

19 research and study, which concluded that it lacked any valid justification.

20

151. For example, in March 2014, the Transgender Military Service Commission (the

21 “Commission”) issued a report analyzing the military’s former ban. The Commission, which was

22 co-chaired by a former U.S. Surgeon General, was convened to determine whether the ban was

23 based on medically sound reasons. The Commission found that there was “no compelling

24 medical rationale” for banning military service by transgender people.

25

152. In May 2014, then-Secretary of Defense Chuck Hagel publicly stated that he was

26 receptive to reviewing and reassessing the rules that govern service by transgender people. He

27 explained that “[e]very qualified American who wants to serve our country should have an

28 opportunity if they fit the qualifications and can do it.”

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 22 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 24 of 44

1

153. In July 2015, Secretary Carter admitted that DoD’s regulations regarding transgender

2 service members “[were] outdated and [were] causing uncertainty that distracted commanders

3 from our core missions.” He also recognized the many transgender people who were already

4 serving in the military: “We have transgender soldiers, sailors, airmen and Marine—real,

5 patriotic Americans—who I know are being hurt by an outdated, confusing, inconsistent

6 approach that’s contrary to our value of service and individual merit.”

7

154. Accordingly, Secretary Carter announced the creation of a working group to study

8 for six months the policy and readiness implications of permitting transgender individuals to

9 serve openly. This working group was chaired by the Under Secretary of Defense for Personnel

10 and Readiness and comprised senior representatives from each of the military services, the Joint

11 Staff, and relevant components from the Office of the Secretary of Defense.

12

155. In addition to creating a working group, Secretary Carter also directed that, effective

13 July 13, 2015, no service member could be involuntarily separated or denied reenlistment or

14 continuation of active or reserve service on the basis of their gender identity without the approval

15 of the Under Secretary of Defense for Personnel and Readiness.

16

156. On information and belief, separations of service members on the basis of their

17 gender identity fell sharply after July 2015, and there were very few, if any, service members

18 who were separated on that basis from July 2015 to June 2016. In effect, transgender people

19 served openly in the military from July 2015 to June 2016, as well as likely before that period,

20 albeit under the threat of separation.

21

157. In or around July 2015, Secretary Carter also directed the commencement of a study

22 to evaluate the implications of allowing transgender personnel to serve openly in the military.

23 DoD commissioned the RAND Corporation, a non-profit, non-partisan research organization, to

24 conduct the study. DoD asked RAND to (1) identify the health care needs of the transgender

25 population and the costs associated with providing transition-related care to transgender service

26 members, (2) assess the readiness implications of allowing transgender service members to serve

27 openly, and (3) review the experiences of foreign militaries that permit transgender individuals to

28 serve openly. The findings from the study, which reflected the culmination of months of research

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 23 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 25 of 44

1 and spanned 91 pages, were publicly released in May 2016.

2

158. As detailed further below, the RAND study demonstrated that the cost of providing

3 transition-related care is exceedingly small relative to DoD’s overall health care expenditures,

4 that there are no readiness implications that prevent transgender members from serving openly,

5 and that foreign militaries have successfully permitted open service without a negative effect on

6 effectiveness, readiness, or unit cohesion.

7

159. The leadership of the Armed Services—including the Joint Chiefs of Staff, the

8 Service Secretaries, and Secretary Carter—together with personnel, training, readiness, and

9 medical specialists from across DoD, studied the available data, including the findings and

10 analysis from RAND. They also received input from transgender service members, from outside

11 expert groups, and from medical professionals outside DoD. They looked carefully at what

12 lessons could be learned from outside the U.S. military, including from allied militaries that

13 permit transgender people to serve openly, as well as from the private sector.

14

160. As a result of this deliberative process and year-long study, on June 30, 2016,

15 Secretary Carter announced that the military was ending the ban on open service by transgender

16 people. The conclusion was supported by, among other things, the need to recruit and retain the

17 individuals most highly qualified to serve. Effective immediately, transgender service members

18 were permitted to serve openly and could no longer be discharged or otherwise separated from

19 the military solely for being transgender. DoD materials explained that “[t]his policy change was

20 crafted through a comprehensive and inclusive process that included the leadership of the Armed

21 Services, medical and personnel experts across the Department, transgender Service members,

22 outside medical experts, advocacy groups, and the RAND Corporation.”

23

161. In the accompanying directive-type memorandum regarding the policy change,

24 Secretary Carter explained that the policies and procedures permitting open service were

25 premised on the conclusion that “open service by transgender Service members . . . is consistent

26 with military readiness and with strength through diversity.”

27

162. The policy change was announced through a press conference held by Secretary

28 Carter as well as through a section of the DoD website titled “Department of Defense

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 24 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 26 of 44

1 Transgender Policy,” which was still active in the days following President Trump’s July 26,

2 2017 tweets. That website lists the highlights of the policy change, links to various DoD

3 resources related to the policy change, and includes a video that assures transgender individuals:

4 “Transgender Members Can Now Serve Openly.”

5

163. DoD planned a 12-month implementation process that would proceed in stages,

6 beginning with the needs of current service members and their commanders, followed by training

7 for the entire force, and concluding with the accession of transgender recruits.

8

164. On September 30, 2016, within 90 days after the lifting of the ban, DoD issued a

9 training handbook for commanders, transgender service members, and the force, titled

10 “Transgender Service in the U.S. Military: An Implementation Handbook.” The 71-page

11 handbook was designed to help transgender service members in their transition, help

12 commanders with their duties and responsibilities, and help all service members understand the

13 new policies allowing open service by transgender service members. The handbook illustrates

14 that open service has been workable and practicable.

15

165. Also within 90 days of the lifting of the prior ban, DoD issued medical guidance for

16 providing transition-related care to transgender service members, who were also able to begin the

17 process to officially change their gender marker in the military’s personnel management systems.

18

166. Over the next nine months following the lifting of the prior ban (i.e., from October

19 2016 to June 2017), the services conducted training of the force based on detailed guidance and

20 training materials regarding the policy change.

21

167. Finally, it was envisioned that by July 1, 2017, the military would begin accessing

22 transgender people who meet all relevant standards—holding them to the same physical and

23 mental fitness standards as everyone else who wishes to serve in the military.

24

168. On or around June 30, 2017, Secretary Mattis deferred the accession of transgender

25 individuals until January 1, 2018. There was no change in the decision about whether

26 transgender individuals would be able to join the military but instead merely a change in when

27 they could begin to do so.

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 25 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 27 of 44

1

169. But for President Trump’s implementation of the Ban, the military would have begun

2 the accession of transgender individuals on January 1, 2018.

3 O. Announcement of Policy of Discrimination Against Transgender Individuals in

4

Military Service

5

170. Through a series of three tweets on July 26, 2017, President Trump unilaterally

6 reversed the U.S. military’s policy of permitting open service by transgender individuals and

7 dismantled the years of work that led to the development and implementation of that policy.

8

171. At 8:55 a.m. Eastern time, President Trump tweeted: “After consultation with my

9 Generals and military experts, please be advised that the United States Government will not

10 accept or allow....”

11

172. At 9:04 a.m. Eastern time, President Trump tweeted: “....Transgender individuals to

12 serve in any capacity in the U.S. Military. Our military must be focused on decisive and

13 overwhelming....”

14

173. At 9:08 a.m. Eastern time, President Trump tweeted: “....victory and cannot be

15 burdened with the tremendous medical costs and disruption that transgender [sic] in the military

16 would entail. Thank you[.]”

17

174. The “process” that led to the Ban—to the extent there was any meaningful process at

18 all—was the antithesis of the deliberative, comprehensive, and inclusive process that led to the

19 rescission of the prior ban.

20

175. President Trump failed to engage in any meaningful study, deliberation, or

21 consultation with key military officials, including Secretary Mattis, before making the decision

22 to exclude transgender individuals from the military. Indeed, President Trump tweeted about his

23 decision when Secretary Mattis was on vacation and reportedly provided Secretary Mattis with

24 only one day’s notice of the decision.

25

176. Before the President’s Twitter announcement, other top Pentagon officials were

26 similarly unaware of his decision to ban transgender individuals from the military. In fact, in the

27 nine minutes between the President’s tweet at 8:55 a.m. Eastern Time (which stated, “After

28 consultation with my Generals and military experts, please be advised that the United States

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 26 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 28 of 44

1 Government will not accept or allow....”) and his next tweet at 9:04 a.m. Eastern Time, there

2 were concerns that President Trump was declaring war on North Korea.

3

177. The Joint Chiefs of Staff, including Chairman General Joseph Dunford, were not

4 aware that President Trump planned to tweet about a renewed ban on transgender service

5 members. Military service chiefs from the U.S. Army, Marine Corps, Navy, Air Force, and, upon

6 information and belief, the U.S. Coast Guard were all blindsided by the President’s Twitter

7 announcement.

8

178. Indeed, on June 19, 2017, Chairman General Dunford stated: “Transgender

9 personnel are serving right now, and there is no ongoing review that would affect the ability of

10 those currently serving to continue serving, provided they can meet the physical and mental

11 qualifications of service, be worldwide deployable, and [meet] the same standards that every

12 other soldier, sailor, airmen, [and] marine meets.”

13

179. Before the President’s Twitter announcement, the Pentagon press office was also

14 unaware of the President’s decision to ban transgender people from the military. Immediately

15 after the President’s tweets, a Pentagon spokesperson, Navy Captain Jeff Davis, declined to

16 answer media questions about them, instead telling media: “call the White House.”

17

180. On July 26, 2017, White House Press Secretary Sarah Huckabee Sanders also could

18 not answer a basic question about the proposed new ban: whether transgender individuals

19 currently serving in the military would be discharged. Instead, she responded that DoD and the

20 White House “[would] have to work together” to figure that out. She also could not say for

21 certain who would even take the lead on implementation but “imagine[d]” that it would be DoD.

22

181. Even White House lawyers and aides, who had advised President Trump against

23 banning transgender individuals from the military, were blindsided by the President’s tweets

24 announcing the intended ban. Indeed, one White House official admitted that President Trump

25 took to Twitter to announce the change because the President was frustrated that others wanted

26 to engage in further discussion and analysis of the issues involved. According to a White House

27 official, President Trump stated that the announcement “would stop the lawyers from arguing

28 with him anymore” and trying to dissuade him from reinstituting a ban on transgender military

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 27 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 29 of 44

1 service.

2

182. On information and belief, President Trump also never spoke to a single transgender

3 person regarding the potential impact of his proposed ban before deciding to institute it.

4

183. Several congressional and White House sources reported that part of the President’s

5 motivation for the policy change was to shore up support for a spending bill that would have

6 funded his desired border wall with Mexico and other campaign promises. There was concern

7 that the spending bill would not pass the House of Representatives because some Republican

8 members wanted a ban on military funding for transition-related care, which Republican

9 leadership would not permit, and thus these members might cause the defeat of the entire

10 spending bill. Indeed, on July 13, 2017—almost two weeks before the tweets—the House had

11 previously rejected a proposed amendment that would have banned coverage for transition-

12 related care for transgender service members. These Republican members turned to President

13 Trump, who quickly went much further than banning coverage for transition-related care and

14 instead announced his intention to ban transgender members from military service altogether,

15 presumably as a last-ditch attempt to save the spending bill at issue.

16

184. A Trump administration official also suggested that the President’s policy change

17 was motivated by a desire to gain political advantage over Democrats, stating: “This forces

18 Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin, to take complete ownership

19 of this issue. How will the blue collar voters in these states respond when senators up for re-

20 election in 2018 like Debbie Stabenow are forced to make their opposition to this a key plank of

21 the campaigns?”

22

185. Additional reports indicate that the President’s policy change was undertaken at the

23 behest of Tony Perkins, president of the Family Research Council, a religious lobbying

24 organization that has been labeled an anti-LGBT hate group. That request reportedly was made

25 at a meeting held in the White House Oval Office on July 11, 2017, in which invited,

26 conservative religious leaders laid hands on President Trump and prayed.

27

186. Then-Deputy Assistant to President Trump Sebastian Gorka stated on July 28, 2017,

28 that the military is “not there to reflect America” but instead “to kill people and blow stuff up.”

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 28 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 30 of 44

1 He derided the inclusion of transgender service members in the military as “Obama-era social

2 engineering.” He also cited reports that 40 percent of transgender people have attempted suicide

3 at some point in their lives as a justification for excluding them from military service—failing to

4 recognize or acknowledge the role that discrimination plays in that statistic—and asserted that

5 “we don’t need to try and force them into the hierarchical military environment where they are

6 under the utmost pressure to kill or be killed.” Mr. Gorka continued, “that is why the President is

7 doing this—out of warmth of his consideration for this population.” That statement is false.

8

187. President Trump’s unilateral decision to bar transgender individuals from the

9 military has been met with widespread opposition and condemnation, including by elected

10 representatives from both main political parties. For example, the late Republican Senator John

11 McCain, former Chair of the Senate Armed Services Committee, stated “We should all be guided

12 by the principle that any American who wants to serve our country and is able to meet the

13 standards should have the opportunity to do so—and should be treated as the patriots they are.”

14 Similarly, Republican Senator Richard Shelby stated, “You ought to treat everybody fairly and

15 you ought to give everybody a chance to serve.” Republican Senator Lindsey Graham added,

16 “This is something we should . . . not make a decision [about] based off a tweet.” Furthermore,

17 more than 50 House members, including those on the House Judiciary Committee and Armed

18 Services Committee, joined a letter stating that the President’s decision to ban transgender

19 individuals from the military was unconstitutional on its face.

20

188. Attorneys general from 19 states and the District of Columbia joined a letter

21 denouncing the President’s exclusion of transgender individuals from the military as “blatant

22 discrimination” that violates “fundamental constitutional and American values.” The states

23 include California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts,

24 Minnesota, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia

25 and Washington.

26

189. Fifty-six retired generals and admirals issued a public statement on August 1, 2017,

27 warning that the proposed ban on transgender service members would downgrade military

28 readiness. The statement notes that two four-star generals and former chairmen of the Joint

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 29 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 31 of 44

1 Chiefs of Staff—Army General Martin Dempsey and Navy Admiral Michael Mullen—have

2 publicly supported open service by transgender individuals.

3 P. Implementation of Discrimination Against Transgender Individuals in Military

4

Service

5

190. On or around July 31, 2017, Navy Captain Jeff Davis stated that, upon receiving any

6 “formal direction” from the President, DoD officials “would provide implementing guidance and

7 implement accordingly.” He added that the military was ready “to make [it] happen” once the

8 formal direction was received.

9

191. On or around August 14, 2017, Secretary Mattis informed reporters: “I’ve got my

10 people over there in the room to give [the White House] any military background that they might

11 need to inform them.” But he added, “[t]hey write their own policy of course, so we’re in a

12 supporting role right now.”

13

192. On August 25, 2017, President Trump issued a memorandum entitled “Military

14 Service by Transgender Individuals” (the “2017 Memorandum”) to the Secretary of Defense and

15 the Secretary of Homeland Security (“DHS”). The 2017 Memorandum institutes and implements

16 the Ban.

17

193. President Trump has admitted that, until June 2016, DoD and DHS “generally

18 prohibited openly transgender individuals from accession in the United States military and

19 authorized the discharge of such individuals.” President Trump’s avowed purpose in issuing the

20 2017 Memorandum and the Ban is to “return” the United States to that “longstanding” policy

21 and practice of discrimination.

22

194. To that end, the 2017 Memorandum commanded Secretary Mattis to submit to the

23 President, by February 21, 2018, a “plan for implementing both the general policy . . . and

24 specific directives” that the 2017 Memorandum contained. It also directed Secretary Mattis to

25 determine “how to address transgender individuals currently serving.”

26

195. Secretary Mattis acknowledged and implemented the President’s orders. Four days

27 after the 2017 Memorandum, he issued a statement on “Military Service by Transgender

28 Individuals,” in which he stated that he had “received the Presidential Memorandum” and would

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 30 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 32 of 44

1 “carry out the president’s policy direction.”

2

196. Secretary Mattis subsequently issued two more memoranda, one providing “Interim

3 Guidance,” and the other directing the development of an Implementation Plan. He stated in the

4 “Interim Guidance” that he would “comply with the Presidential Memorandum” and “present the

5 president with a plan to implement the [2017 Memorandum’s] policy and directives on the

6 required timeline.” In the second document, a “Terms of Reference,” Secretary Mattis stated that

7 he would convene “a panel of experts” to “develop[] an Implementation Plan on military service

8 by transgender individuals, to effect the policy and directives in [the] Presidential

9 Memorandum.”

10

197. On August 28, 2017, Plaintiffs filed suit challenging the Ban’s constitutionality. The

11 State of Washington then intervened on behalf of Plaintiffs. This Court and three others granted a

12 preliminary injunction maintaining the status quo of open service under the Carter Policy. The

13 Armed Forces began permitting openly transgender people to access into service beginning on

14 January 1, 2018.

15

198. On or about February 22, 2018, Secretary Mattis delivered to the President the

16 ordered Implementation Plan, on the ordered timeline. It consists of a memorandum from

17 Secretary Mattis to the President entitled “Military Service by Transgender Individuals,” and a

18 document entitled “Department of Defense Report and Recommendations on Military Service by

19 Transgender Persons” totaling 44 pages.

20

199. The Implementation Plan is longer than a tweet, but it still facially and in fact

21 prohibits transgender military service—just as was ordered in the 2017 Memorandum. First, it

22 generally bans from service anyone with a history of gender dysphoria, a condition associated

23 with transgender persons. Second, it bans anyone who undergoes or requires gender transition.

24 Third, to the extent that there are any individuals who identify as transgender but do not fall

25 under the first two categories, the Implementation Plan allows them to serve only in their

26 “biological sex.” In other words, they may not serve unless they suppress the very characteristic

27 that defines them as transgender in the first place. Collectively, these bans thus effect the policy

28 that openly transgender persons are generally not allowed to serve in conformity with their

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 31 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 33 of 44

1 gender identity or receive medically necessary transition-related care.

2

200. The Implementation Plan also contains a limited grandfather exception for those

3 service members who came out in reliance on the Carter Policy. The 2017 Memorandum

4 explicitly contemplated this exception, when it ordered Secretary Mattis to “determine how to

5 address transgender individuals currently serving in the United States military” as part of the

6 Implementation Plan. The Implementation Plan states that the grandfather clause “is and should

7 be deemed severable from” the remainder of the policy “should [DoD’s] decision to exempt

8 these Service members be used by a court as a basis for invalidating the entire policy.” Those

9 who have come out in reliance on the Carter Policy are thus forced to serve at the sufferance of

10 an exception that applies only to them, under a policy that brands them as inferior, unfit, and a

11 danger to their colleagues.

12

201. President Trump approved the Implementation Plan in a March 23, 2018

13 memorandum entitled “Military Service by Transgender Individuals,” which acknowledges

14 receipt of the Implementation Plan developed “[p]ursuant to [the President’s] memorandum of

15 August 25, 2017,” and authorizes the Secretary of Defense to carry out the Implementation Plan.

16

202. The March 23, 2018 Memorandum purports to revoke the memorandum of August

17 25, 2017. In fact, however, President Trump’s March 23 Memorandum is the next step in

18 enforcing and implementing the Ban. And, even if the Implementation Plan were new, it too

19 would be unconstitutional for facially targeting transgender persons and banning them from

20 joining the military and serving openly.

21

203. The Implementation Plan was quickly condemned by all three leading American

22 medical, psychological, and psychiatric associations. The American Medical Association

23 responded to the February 22, 2018 Memorandum and its attachment, saying that “there is no

24 medically valid reason—including a diagnosis of gender dysphoria—to exclude transgender

25 individuals from military service” and denouncing the February 22, 2018 Memorandum because

26 it “mischaracterized and rejected the wide body of peer-reviewed research on the effectiveness of

27 transgender medical care.” The American Psychological Association responded that it was

28 “alarmed by the administration’s misuse of psychological science to stigmatize transgender

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 32 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 34 of 44

1 Americans and justify limiting their ability to serve in uniform and access medically necessary

2 health care.” And the American Psychiatric Association released a statement confirming that

3 transgender people “suffer no impairment whatsoever in their judgment or ability to work.”

4

204. All Defendants—President Trump, the U.S., Secretary Esper, and DoD—are

5 responsible for implementing and enforcing the Ban and the Implementation Plan.

6 Q. Purported Justifications for Policy of Discrimination Against Transgender

7

Individuals

8

205. The Ban and the Implementation Plan are not supported by any compelling,

9 important, or even rational government interest.

10

206. The Ban and the Implementation Plan lack any narrowly-tailored, substantially-

11 related, or even rational relationship to any legitimate government interest, and they are not the

12 least restrictive means of achieving any valid government interest.

13

207. Neither of the purported justifications cited by President Trump for the reinstatement

14 of the prior ban in his tweets—medical costs and disruption—nor any of the after-the-fact

15 justifications drafted by others in defense of his tweets and policies implementing his tweets has

16 any basis in reality. Indeed, they are rebutted by, among other things, the fact that transgender

17 individuals have already served openly for over three years (thirteen months before the

18 President’s tweets announcing the Ban, and for two years since then under the preliminary

19 injunctions and the Implementation Plan’s grandfather clause) without any of these concerns

20 materializing.

21

1. Medical Costs

22

208. With respect to the issue of medical cost, DoD’s own commissioned study by RAND

23 estimated that providing transition-related care to active-duty service members would cost

24 between $2.4 million and $8.4 million annually—which is “an amount that will have little impact

25 on and represents exceedingly small proportion of [active component] health care expenditures

26 (approximately $6 billion in FY 2014) and overall DoD health care expenditures ($49.3 billion

27 actual expenditures [in FY 2014] . . .).”

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 33 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 35 of 44

1

209. The RAND study mirrored earlier research findings. A 2015 article published in the

2 New England Journal of Medicine estimated that the cost of providing transition-related care to

3 service members would be approximately $5.6 million annually or 22 cents per member per

4 month. The article concluded that any plausible estimate of the cost involved is equivalent to a

5 “rounding error” in the military’s nearly $50 billion annual health care budget.

6

210. The surgeon general of the Navy also noted in December 2016 that most of the types

7 of medical care for transgender service members was already provided to others in relation to

8 similar medical needs.

9

211. Providing transition-related care also mitigates other costs that the military would

10 otherwise be required to bear. The RAND study noted that the adverse consequences of not

11 providing transition-related care to transgender personnel could include causing these individuals

12 to avoid other necessary health care altogether, such as important preventive services, as well as

13 increased rates of mental and substance abuse disorders, and suicide, and reduced productivity.

14

212. Implementing a ban against transgender individuals in the military will cost the

15 federal government many times more in taxpayer dollars than any cost associated with allowing

16 transgender individuals to continue serving and to join the military. Implementation costs include

17 the high expense of separating or dismissing people subject to the policy and the cost of finding

18 replacements for and training non-transgender individuals to replace them. A recent study

19 estimated that it would cost $960 million dollars to recruit and train the replacements for all the

20 transgender individuals who are currently serving in the military—more than one hundred times

21 the upper estimate of the cost of providing transition-related care for one year.

22

2. Military Readiness

23

213. There is also no military readiness justification for the policy of excluding

24 transgender individuals from the military.

25

214. The RAND study found that less than 0.0015 percent of total available labor-years,

26 defined as the amount of work done by an individual in a year, would be affected by permitting

27 transgender individuals to openly serve. This is because, even on the high end of estimates, less

28 than 0.1 percent of the total force would seek transition-related care that could temporarily affect

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 34 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 36 of 44

1 their ability to deploy.

2

215. Existing data also show that there is no impact on unit cohesion that would prevent

3 transgender individuals from serving openly.

4

216. The military has previously adapted to the eradication of other forms of

5 discrimination including racial desegregation, the end of the anti-lesbian, gay, and bisexual

6 “Don’t Ask, Don’t Tell” policy, and the integration of women into direct combat positions. The

7 military was able to adapt to the inclusion of transgender troops serving openly as well,

8 particularly with the benefit of force-wide training and clear guidance implemented by the

9 military.

10

217. Eighteen countries allow transgender people to serve openly in the military:

11 Australia, Austria, Belgium, Bolivia, Canada, Czech Republic, Denmark, Estonia, Finland,

12 France, Germany, Israel, Netherlands, New Zealand, Norway, Spain, Sweden, and the United

13 Kingdom. The RAND study focused on the policies of four countries with the most well-

14 developed and publicly available policies on transgender military service members—Australia,

15 Canada, Israel, and the United Kingdom. In no case did the study find any evidence of an

16 adverse effect on operational effectiveness, operational readiness, or cohesion of the force.

17 CAUSES OF ACTION
18

19

FIRST CAUSE OF ACTION EQUAL PROTECTION VIOLATION

20

(By All Plaintiffs Against All Defendants)

21

218. Plaintiffs incorporate paragraphs 1 through 217 as though fully set forth herein.

22

219. All Plaintiffs state this cause of action against all Defendants (including President

23 Trump and Secretary Esper, in exclusively their official capacities) for purposes of seeking

24 declaratory and injunctive relief, and challenge the Ban and the Implementation Plan both

25 facially and as applied to them or, as to the organizational plaintiffs, as applied to their members.

26

220. The Fifth Amendment to the United States Constitution provides that no person shall

27 be deprived of life, liberty, or property without due process of law. The Due Process Clause

28 includes within it a prohibition against the denial of equal protection by the federal government,

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 35 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 37 of 44

1 its agencies, or its officials or employees.

2

221. Defendants’ disparate treatment of transgender individuals facially and intentionally

3 discriminates against transgender individuals based on sex-related considerations.

4

222. Discrimination based on sex-related considerations includes, but is not limited to,

5 discrimination based on gender nonconformity, gender identity, transgender status, and gender

6 transition.

7

223. The Department of Defense’s Transgender Service Member Policy Implementation

8 Fact Sheet, posted on the Department of Defense’s official website, admits that “[a]ny

9 discrimination against a Service member based on their gender identity is sex discrimination.”

10

224. Discrimination because an individual is transgender is both discrimination based on a

11 sex-related consideration, which at a minimum requires courts to apply intermediate scrutiny in

12 evaluating the constitutionality of the government’s discrimination, and discrimination based on

13 transgender status, which requires courts to apply strict scrutiny to such discrimination.

14

225. Government discrimination against transgender individuals bears all the indicia of a

15 suspect classification requiring strict scrutiny by the courts.

16

a. Transgender people have suffered a long history of extreme discrimination and

17

continue to suffer such discrimination to this day.

18

b. Transgender people are a discrete and insular group and lack the political

19

power to protect their rights through the legislative process. Transgender

20

people have largely been unable to secure express federal, state, and local

21

protections specifically protecting them against discrimination, and have been

22

and continue to be regularly targeted by anti-transgender legislation,

23

regulations, bills, and other government action.

24

c. A person’s gender identity or transgender status bears no relation to that

25

person’s ability to contribute to society.

26

d. Transgender people constitute a small minority of the population. In addition,

27

gender identity is a core, defining trait and is so fundamental to one’s identity

28

and conscience that a person cannot be required to abandon it as a condition of

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 36 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 38 of 44

1

equal treatment. Gender identity is also generally fixed at an early age and

2

highly resistant to voluntary change. Efforts to change gender identity have

3

been condemned by leading medical and psychological authorities as harmful,

4

and have been barred by numerous states, the District of Columbia, and

5

numerous local governments.

6

226. Defendants’ disparate treatment of transgender individuals like the individual

7 plaintiffs and the transgender members of the organizational plaintiffs deprives them of their

8 right to equal dignity and stigmatizes them as second-class citizens in violation of equal

9 protection guarantees.

10

227. There is not even a legitimate justification for such disparate treatment, let alone the

11 important or compelling one that is constitutionally required.

12

228. The Ban and Implementation Plan are motivated by impermissible animus towards

13 transgender people and are thus invalid as a whole.

14

15

SECOND CAUSE OF ACTION DUE PROCESS VIOLATION

16

(By All Plaintiffs Against All Defendants)

17

229. Plaintiffs incorporate paragraphs 1 through 217 as though fully set forth herein.

18

230. All Plaintiffs state this cause of action against all Defendants (including President

19 Trump and Secretary Esper, in exclusively their official capacities) for purposes of seeking

20 declaratory and injunctive relief, and challenge the Ban and Implementation Plan both facially

21 and as applied to them or, as to the organizational plaintiffs, as applied to their members.

22

231. Defendants’ conduct, including their enforcement of the Ban and Implementation

23 Plan, violates the rights of the individual plaintiffs and of the transgender members of the

24 organizational plaintiffs under the Fifth Amendment’s Due Process Clause. The Due Process

25 Clause protects each person’s fundamental liberty to individual dignity, autonomy, and privacy.

26 That includes the right to define and express one’s own identity, to define one’s own concept of

27 existence, and to make intimate decisions concerning marriage, procreation, and family life, all

28 without undue government interference.
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 37 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 39 of 44

1

232. A person’s gender identity constitutes a core aspect of individual self-definition. The

2 Ban and Implementation Plan diminish the personhood, dignity, and autonomy of the individual

3 plaintiffs and of the transgender members of the organizational plaintiffs, and impermissibly

4 interfere with the most intimate choices a person may make in a lifetime, including the right to

5 self-expression and to live openly and authentically.

6

233. Where the government impermissibly burdens a fundamental liberty interest, such

7 government action may be sustained only upon a showing that it is, at the very least,

8 substantially related to an important government interest, if not narrowly tailored to serve a

9 compelling government interest. Here, the Ban and the Implementation Plan lack adequate

10 tailoring and fail to serve even a legitimate governmental interest. Indeed, they epitomize the

11 very kind of arbitrary and capricious government action that the Due Process Clause forbids.

12

234. Defendants have also violated the due process rights of the individual plaintiffs and

13 of the transgender members of the organizational plaintiffs to the extent that they detrimentally

14 relied on the military’s policy, extant during the period of June 2016 to August 2017, of

15 permitting open service by transgender individuals. In addition, Defendants’ conduct violates

16 basic principles of equity.

17

18

THIRD CAUSE OF ACTION FREE SPEECH VIOLATION

19

(By All Plaintiffs Against All Defendants)

20

235. Plaintiffs incorporate paragraphs 1 through 217 as though fully set forth herein.

21

236. All Plaintiffs state this cause of action against all Defendants (including President

22 Trump and Secretary Esper, in exclusively their official capacities) for purposes of seeking

23 declaratory and injunctive relief, and challenge the Ban and Implementation Plan both facially

24 and as applied to them or, as to the organizational plaintiffs, as applied to their members.

25

237. The Ban and Implementation Plan violate the Free Speech Clause of the First

26 Amendment because they impermissibly burden and chill the exercise of the individual

27 plaintiffs’ and of the organizational plaintiffs’ transgender members’ constitutionally protected

28 speech, expression, expressive conduct, and expressive association, based on the content and

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 38 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 40 of 44

1 viewpoint of their speech.

2

238. All the individual plaintiffs and transgender members of the organizational plaintiffs

3 have been open about their status as transgender either in the context of seeking to join the

4 military or in the course of their military service. All individual plaintiffs and transgender

5 members of organizational plaintiffs want to continue being open about their status as

6 transgender, and to continue expressing and conducting themselves consistently with their

7 gender.

8

239. The gender expression of the individual plaintiffs and of transgender members of the

9 organizational plaintiffs, the conduct of those individuals that is consistent with their gender, and

10 those individuals’ disclosure of their transgender status, all constitute protected First Amendment

11 activity. Similarly, the advocacy of those individuals for fairness for transgender service

12 members and an end to discrimination against transgender individuals in military service, and

13 those individuals’ association with other transgender people and their allies for expressive

14 purposes, constitute protected First Amendment activity.

15

240. The purpose and effect of the Ban and Implementation Plan are to chill

16 constitutionally protected First Amendment activity. Indeed, the 2017 Memorandum on its face

17 demonstrates that it is directed at suppressing the gender expression and related expressive

18 conduct of transgender individuals, including that of the individual plaintiffs and transgender

19 members of the organizational plaintiffs, and those individuals’ disclosure of their transgender

20 status: specifically, the 2017 Memorandum states that policy is changing by returning to one that

21 prohibits “openly transgender individuals” from accession, authorizes the discharge of such

22 individuals, and prevents transgender individuals from serving “openly in the military”

23 (emphases added).

24

241. The Ban and Implementation Plan penalize the individual plaintiffs, transgender

25 members of the organizational plaintiffs, other transgender service members, and other

26 transgender individuals who would like to join the military or be appointed as officers, for their

27 gender expression. The Ban and Implementation Plan chill the protected First Amendment

28 activity of a person of ordinary firmness who is transgender by requiring such persons either to

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 39 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 41 of 44

1 attempt to deny who they are and suppress expression of their gender or be denied military

2 service on the same terms as others. The Ban and Implementation Plan also chill these

3 individuals’ right to advocate for fair treatment for transgender service members for fear that this

4 advocacy will identify them as transgender. For the same reason, the exclusion chills exercise of

5 their right to associate with other transgender service members and their allies and form or

6 participate in expressive associations for the purpose of advocating for an end to the exclusion.

7

242. The individual plaintiffs and transgender members of the organizational plaintiffs are

8 harmed by being denied the opportunity to serve in the military on the same terms as other

9 service members. All of the individual plaintiffs and transgender members of the organizational

10 plaintiffs face a realistic danger of sustaining a direct injury as a result of implementation,

11 operation, or enforcement of the terms of the Ban as well as the Implementation Plan. For

12 example, Mr. Karnoski and Mr. Layne are harmed by being denied the opportunity to serve in

13 the military. Staff Sergeant Schmid was refused appointment as a warrant officer, and she also

14 faces a realistic danger that she will sustain a direct injury from implementation of the Ban,

15 which requires a return to the exclusion of transgender service members from the military. Chief

16 Warrant Officer Muller, Petty Officer Lewis, Petty Officer Stephens, Petty Officer Winters, and

17 Jane Doe also face the realistic danger that they will sustain direct injuries from implementation

18 of the Ban and Implementation Plan.

19

PRAYER FOR RELIEF

20

WHEREFORE, Plaintiffs respectfully request that this Court:

21

1. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-02, declaring the Ban and the

22 Implementation Plan unconstitutional on their face and as applied to the individual plaintiffs and

23 transgender members of the organizational plaintiffs for the reasons set forth above;

24

2. Preliminarily and permanently enjoin Defendants, their agents, employees,

25 representatives, successors, and any other person or entity subject to their control or acting

26 directly or indirectly in concert with them from enforcing the Ban and the Implementation Plan,

27 including by enjoining any separation, discharge, adverse action, or denial of promotion,

28 reenlistment, continuation of service, accession, or appointment because an individual is

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 40 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 42 of 44

1 transgender.

2

3. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees pursuant to 28

3 U.S.C. § 2412 and any other applicable laws; and

4

4. Grant any injunctive or other relief that this Court deems just, equitable, and proper.

5

6 Respectfully submitted July 31, 2019.

7

8

NEWMAN DU WORS LLP

9

10

11

Derek A. Newman, WSBA No. 26967

dn@newmanlaw.com

12

Jason B. Sykes, WSBA No. 44369

13

jason@newmanlaw.com Rachel Horvitz, WSBA No. 52987

14

rachel@newmanlaw.com 2101 Fourth Ave., Ste. 1500

15

Seattle, WA 98121

(206) 274-2800

16

LAMDBA LEGAL DEFENSE AND

17

EDUCATION FUND, INC.

18

Tara Borelli, WSBA No. 36759 tborelli@lambdalegal.org

19

Camilla B. Taylor (admitted pro hac vice)

Peter C. Renn (admitted pro hac vice)

20

Sasha J. Buchert (admitted pro hac vice)

Kara N.Ingelhart (admitted pro hac vice)

21

Carl Charles (admitted pro hac vice)

22

Paul D. Castillo (admitted pro hac vice) 730 Peachtree Street NE, Ste. 640

23

Atlanta, GA 30308

(404) 897-1880

24

OUTSERVE-SLDN, INC. N/K/A MODERN

25

MILITARY ASSOCIATION OF AMERICA

26

Peter E. Perkowski (admitted pro hac vice)

27

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 41 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 43 of 44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 42 [Case No.: 2:17-cv-01297-MJP]

KIRKLAND & ELLIS LLP James F. Hurst, P.C. (admitted pro hac vice) Stephen R. Patton (admitted pro hac vice) Jordan M. Heinz (admitted pro hac vice) Vanessa Barsanti (admitted pro hac vice) Daniel I. Siegfried (admitted pro hac vice) Joseph B. Tyson (admitted pro hac vice)
Counsel for Plaintiffs

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347 Filed 07/31/19 Page 44 of 44

1

CERTIFICATE OF SERVICE

2

The undersigned certifies under penalty of perjury under the laws of the United States of

3 America and the laws of the State of Washington that all participants in the case are registered

4 CM/ECF users and that service of the foregoing documents will be accomplished by the

5 CM/ECF system on July 31, 2019.

6

7

8

Rachel Horvitz, WSBA No. 52987

rachel@newmanlaw.com

9

2101 Fourth Ave., Ste. 1500

Seattle, WA 98121

10

(206) 274-2800

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 43 [Case No.: 2:17-cv-01297-MJP]

NEWMAN DU WORS LLP

2101 Fourth Avenue, Suite 1500 Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 347-1 Filed 07/31/19 Page 1 of 4
Exhibit A

Case 2:17-cv-01297-MJP Document 347-1 Filed 07/31/19 Page 2 of 4

Case 2:17-cv-01297-MJP Document 347-1 Filed 07/31/19 Page 3 of 4

Case 2:17-cv-01297-MJP Document 347-1 Filed 07/31/19 Page 4 of 4

 
 Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 1 of 7

1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11 RYAN KARNOSKI, et al.,

Case No. 2:17-cv-01297-MJP

12

Plaintiffs, and

13 STATE OF WASHINGTON,

14

Plaintiff-Intervenor,

15

v.

16 DONALD J. TRUMP, in his official capacity 17 as President of the United States, et al.,

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297MJP AND 2:19-cv-01206-MJP FOR ALL PURPOSES
NOTE ON MOTION CALENDAR: August 16, 2019

18

Defendants.

19

20

21

22

23

24

25

26

27

28

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

NEWMAN DU WORS LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 2 of 7

1

Plaintiffs Ryan Karnoski, Cathrine Schmid, D.L., formerly known as K.G., by his next

2 friend and mother, Laura Garza, Lindsey Muller, Terece Lewis, Phillip Stephens, Megan

3 Winters, Jane Doe, Human Rights Campaign, Gender Justice League, and American Military

4 Partner Association n/k/a Modern Military Association of America (collectively, “Plaintiffs”);

5 Plaintiff-Intervenor State of Washington; Defendants Donald J. Trump, the United States of

6 America, Mark Esper, and the United States Department of Defense (collectively,

7 “Defendants”), and third party Dr. Paul McHugh hereby stipulate and move the Court as follows:

8

WHEREAS, Plaintiffs filed their Complaint against Defendants on August 28, 2017 in this

9 Court. (Dkt. # 1);

10

WHEREAS, on November 27, 2017 this Court granted Plaintiff-Intervenor’s request to

11 join the matter (Dkt. # 101), and on December 14, 2017 Plaintiff-Intervenor filed their Complaint

12 in this matter. (Dkt. # 104);

13

WHEREAS, on August 22, 2018 Plaintiffs served a subpoena on Dr. Paul McHugh (the

14 “Subpoena”);

15

WHEREAS on October 3, 2018 Plaintiffs filed a motion to compel with respect to the

16 Subpoena in the United States District Court for the District of Maryland, Case No.: 1:18-CV-

17 3164 (the “Subpoena Dispute”) (1:18-CV-3164; Dkt. # 1);

18

WHEREAS, on July 31, 2019 the Parties in the Subpoena Dispute matter consented to

19 transfer to this Court pursuant to Fed. R. Civ. P. 45(f) (1:18-CV-3164; Dkt. No. 21);

20

WHEREAS, on August 1, 2019 the Clerk of Court notified counsel that the Subpoena

21 Dispute had been transferred to this Court and was assigned to the Honorable Ricardo S.

22 Martinez, Case No.: 2:19-cv-01206-RSM. (19-CV-1206; Dkt. # 24);

23

WHEREAS, on August 2, 2019, the Subpoena Dispute was reassigned to the Honorable

24 Marsha J. Pechman, as related to 17-CV-1297;

25

WHEREAS, on August 9, 2019, the Parties to the Subpoena Dispute, in accordance with

26 LCR 42(b), met and agreed to consolidate matters 17-CV-1297 and 19-CV-1206, and further

27 agreed that no changes to the current Case Schedule (Dkt. # 344) be revised;

28

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES - 1 [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

Newman Du Wors LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 3 of 7

1

WHEREAS, Plaintiff-Intervenor is not a party to the Subpoena Dispute, but does not

2 object to its consolidation with this matter;

3

NOW THEREFORE, pursuant to Fed R. Civ. P. 42(a) and LCR 42, Plaintiffs, Plaintiff-

4 Intervenor, and Defendants, through their respective counsel of record, do hereby stipulate and

5 agree, and respectfully request, that the Court enter an order that Karnoski, et al. v. Trump, et al.,

6 Case No. 2:19-cv-01206-MJP be consolidated with Karnoski, et al. v. Trump, et al., Case No.

7 2:17-cv-01297-MJP for all purposes pursuant to LCR 42(a).

8

9 SO STIPULATED

10 Respectfully submitted August 16, 2019.

11 12 NEWMAN DU WORS LLP 13

UNITED STATES DEPARTMENT OF JUSTICE

14 s/ Rachel Horvitz

15 Derek A. Newman, WSBA No. 26967 dn@newmanlaw.com
16 Jason B. Sykes, WSBA No. 44369 jason@newmanlaw.com
17 Rachel Horvitz, WSBA No. 52987

18

rachel@newmanlaw.com 2101 Fourth Ave., Ste. 1500

19

Seattle, WA 98121 (206) 274-2800

20 LAMDBA LEGAL DEFENSE AND

21 EDUCATION FUND, INC.

Tara Borelli, WSBA No. 36759 22 tborelli@lambdalegal.org

23

Camilla B. Taylor (admitted pro hac vice) Peter C. Renn (admitted pro hac vice)

24 Sasha Buchert (admitted pro hac vice) Kara Ingelhart (admitted pro hac vice)

25 Carl Charles (admitted pro hac vice)

Paul D. Castillo (admitted pro hac vice) 26

s/ Andrew E. Carmichael JOSEPH H. HUNT Assistant Attorney General Civil Division ALEXANDER K. HAAS Branch Director ANTHONY J. COPPOLINO Deputy Director ANDREW E. CARMICHAEL, VA Bar # 76578 Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch andrew.e.carmichael@usdoj.gov 1100 L Street NW, Suite 12108 Washington, DC 20530 (202) 514-3346
Counsel for Defendants

27

28

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES - 2 [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

Newman Du Wors LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 4 of 7

1

OUTSERVE-SLDN, INC. N/K/A MODERN MILITARY ASSOCIATION

2 OF AMERICA Peter Perkowski (admitted pro hac vice)

3

4

KIRKLAND & ELLIS LLP 5 James F. Hurst, P.C. (admitted pro hac vice)

6

Steve Patton (admitted pro hac vice) Jordan M. Heinz (admitted pro hac vice)

7 Vanessa Barsanti (admitted pro hac vice)

Daniel I. Siegfried (admitted pro hac vice)

8 Joseph B. Tyson (admitted pro hac vice)

9 Counsel for Plaintiffs 10

OFFICE OF THE WASHINGTON STATE ATTORNEY GENERAL
s/ Chalia I. Stallings-Ala’ilima Chalia I. Stallings-Ala’ilima, WSBA No. 40694 chalias@atg.wa.gov Colleen M. Melody, WSBA No. 42275 colleenm1@atg.wa.gov Assistant Attorney General Wing Luke Civil Rights Division Office of the WA Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744

11

Counsel for Intervenor-Plaintiff State of

12

Washington

13 s/ Gerard Bradley

14 Gerard Bradley

15

Gerard.V.Bradley.16@nd.edu Professor of Law

16

University of Notre Dame 3156 Eck Hall of Law

17 Notre Dame, IN 46556 USA

18 Counsel for Dr. Paul McHugh

19

20

21

22

23

24

25

26

27

28

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES - 3 [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

Newman Du Wors LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 5 of 7

1

[PROPOSED] ORDER

2

This matter comes before the Court on the Parties’ Joint Stipulation to Consolidate Cases

3 2:17-cv-01297-MJP and 2:19-cv-01206-MJP For All Purposes, and the Court having considered

4 the Stipulation and the records and files of the case, the Court does hereby find good cause to

5 order that the two above-captioned matters will be consolidated for all purposes before the

6 Honorable Marsha J. Pechman, with a trial date of June 22, 2020.

7

8

IT IS SO ORDERED.

9

10

Dated this ________ day of ____________, 2019.

11

12 13 14 PRESENTED BY:

Marsha J. Pechman United States District Judge

15 NEWMAN DU WORS LLP 16

UNITED STATES DEPARTMENT OF JUSTICE

17 s/ Rachel Horvitz 18 Derek A. Newman, WSBA No. 26967

19

dn@newmanlaw.com Jason B. Sykes, WSBA No. 44369

20

jason@newmanlaw.com Rachel Horvitz, WSBA No. 52987

21 rachel@newmanlaw.com 2101 Fourth Ave., Ste. 1500
22 Seattle, WA 98121

23 (206) 274-2800

24

LAMDBA LEGAL DEFENSE AND EDUCATION FUND, INC.

25 Tara Borelli, WSBA No. 36759

tborelli@lambdalegal.org 26 Camilla B. Taylor (admitted pro hac vice)

27

Peter C. Renn (admitted pro hac vice) Sasha Buchert (admitted pro hac vice)

28 Kara Ingelhart (admitted pro hac vice)

s/ Andrew E. Carmichael JOSEPH H. HUNT Assistant Attorney General Civil Division ALEXANDER K. HAAS Branch Director ANTHONY J. COPPOLINO Deputy Director ANDREW E. CARMICHAEL, VA Bar # 76578 Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch andrew.e.carmichael@usdoj.gov 1100 L Street NW, Suite 12108 Washington, DC 20530 (202) 514-3346
Counsel for Defendants

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES - 4 [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

Newman Du Wors LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 6 of 7

1

Carl Charles (admitted pro hac vice) Paul D. Castillo (admitted pro hac vice)

2

OFFICE OF THE WASHINGTON STATE ATTORNEY GENERAL

3 OUTSERVE-SLDN, INC. N/K/A MODERN MILITARY ASSOCIATION
4 OF AMERICA 5 Peter Perkowski (admitted pro hac vice)

6

7 KIRKLAND & ELLIS LLP James F. Hurst, P.C. (admitted pro hac vice)

8 Steve Patton (admitted pro hac vice)

9

Jordan M. Heinz (admitted pro hac vice) Vanessa Barsanti (admitted pro hac vice)

10

Daniel I. Siegfried (admitted pro hac vice) Joseph B. Tyson (admitted pro hac vice)

11

Counsel for Plaintiffs 12

s/ Chalia I. Stallings-Ala’ilima Chalia I. Stallings-Ala’ilima, WSBA No. 40694
chalias@atg.wa.gov Colleen M. Melody, WSBA No. 42275
colleenm1@atg.wa.gov Assistant Attorney General Wing Luke Civil Rights Division Office of the WA Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744
Counsel for Intervenor-Plaintiff State of Washington

13

14

15 s/ Gerard Bradley

16 Gerard Bradley

Gerard.V.Bradley.16@nd.edu 17 Professor of Law

18

University of Notre Dame 3156 Eck Hall of Law

19 Notre Dame, IN 46556 USA

20 Counsel for Dr. Paul McHugh

21

22

23

24

25

26

27

28

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES - 5 [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

Newman Du Wors LLP

Seattle, Washington 98121 (206) 274-2800

Case 2:17-cv-01297-MJP Document 360 Filed 08/16/19 Page 7 of 7

1

CERTIFICATE OF SERVICE

2

The undersigned certifies under penalty of perjury under the laws of the United States of

3 America and the laws of the State of Washington that all participants in the case are registered

4 CM/ECF users and that service of the foregoing documents will be accomplished by the

5 CM/ECF system on August 16, 2019.

6

7

s/ Rachel Horvitz

8

Rachel Horvitz, WSBA No. 52987

rachel@newmanlaw.com

9

2101 Fourth Ave., Ste. 1500

Seattle, WA 98121

10

(206) 274-2800

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

JOINT STIPULATION TO CONSOLIDATE CASES 2:17-cv-01297-MJP AND 2:19-cv-01206RSM FOR ALL PURPOSES - 6 [Case No.: 2:17-cv-01297-MJP]

2101 Fourth Avenue, Suite 1500

Newman Du Wors LLP

Seattle, Washington 98121 (206) 274-2800

 
 Case 2:17-cv-01297-MJP Document 479 Filed 04/09/20 Page 1 of 5

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

RYAN KARNOSKI, et al.,

CASE NO. C17-1297

11

Plaintiffs,

ORDER APPOINTING SPECIAL

MASTER

12

v.

13

DONALD J TRUMP, et al.,

14

Defendants.

15

16

This Order follows the Court’s Notice of the Appointment of a Special Master. (Dkt. No.

17 466.) Finding that the Parties’ two-year discovery dispute cannot be effectively and timely

18 addressed by the Court or by any available district judge or magistrate judge of the district, and

19 having heard from the Parties (Dkt. Nos. 470, 472, 474, 476, 478), the Court appoints retired

20 United States Magistrate Judge, the Honorable James P. Donohue to serve as Special Master.

21

In its Notice of Appointment, the Court requested that the Parties propose names of

22 special master candidates (Dkt. No. 466). During the April 2, 2020 Status Conference, the Court

23 discussed Plaintiffs’ proposed candidates—Defendants did not submit proposals by the

24

ORDER APPOINTING SPECIAL MASTER - 1

Case 2:17-cv-01297-MJP Document 479 Filed 04/09/20 Page 2 of 5

1 deadline—and asked for feedback on three candidates proposed by the Court. (Dkt. No. 476 at

2 34:10-36:17.) During this discussion, Defendants requested a master “who has substantial

3 experience adjudicating claims of government privilege” and “somebody who has prior federal

4 judicial experience.” (Dkt. No. 35:25-36:5.) Of the candidates proposed by the Parties and the

5 Court, only Judge Donohue holds those qualifications.

6

Judge Donohue was appointed United States Magistrate Judge for the Western District of

7 Washington in 2005, serving for 14 years before his retirement in March 2019. In 2015, he was

8 appointed Chief Magistrate Judge for the District. Prior to his appointment to the bench, Judge

9 Donohue was a shareholder in the Seattle office of Heller Ehrman White & McAuliffe, LLP

10 where his practice was focused on commercial and intellectual property litigation. Judge

11 Donohue also served as the Articles Editor for the Federal Courts Law Review.

12

He received his A.B. from the University of Illinois in 1973, and his J.D. from the

13 University of California, Los Angeles, in 1976, where he was a member of the UCLA Law

14 Review. After his graduation, he served as a VISTA volunteer before going into private practice.

15 Judge Donohue served on the Ninth Circuit Pro Se Committee, a committee he chaired from

16 2009-13. He was also on the Ninth Circuit Magistrate Judge Education Committee and was

17 elected to serve on the Board of Directors of the Federal Magistrate Judges Association,

18 representing the Ninth Circuit. He was one of the founding members and first president of the

19 Seattle Intellectual Property Inns of Court. Judge Donohue also served on the Board of Directors

20 of the Special Olympics of Washington.

21

Defendants have objected to the appointment of Judge Donohue, arguing that an article

22 he recently authored demonstrates “at a minimum, an appearance of bias against Defendants.”

23 (Dkt. No. 478 at 2.) The Court has reviewed the article and finds no bias; to the contrary, the

24

ORDER APPOINTING SPECIAL MASTER - 2

Case 2:17-cv-01297-MJP Document 479 Filed 04/09/20 Page 3 of 5

1 central argument of the article is that judges must remain apolitical and impartial. See James P.

2 Donohue, I was a Federal Judge. My Former Colleagues Must Stop Attending Federalist Society

3 Events, Slate.com, https://slate.com/news-and-politics/2019/11/federalist-society-federal-judges-

4 unethical.html (last visited April 8, 2020 (“Judges are supposed to be apolitical. The rule of law

5 requires that decisions be based on the laws and Constitution of the United States, and not a

6 judge’s personal views or political preference.”) Further, the article neither mentions the subject

7 matter of this lawsuit nor the named parties. (See id.) And based on his extensive experience

8 and conduct for fourteen years as a federal magistrate judge, the Court has every confidence that

9 Judge Donohue will carry out his duties as Special Master with impartiality.

10

Defendants also expressed concerns about whether the special master’s fees could be split

11 equitably between the Parties and whether such fees would be in line with the Government’s

12 sovereign immunity. (Dkt. No. 476 at 10:18-11:2.) Because Judge Donohue has agreed to act

13 as Special Master, pro bono, those concerns are no longer relevant.

14

The Court therefore appoints Judge Donahue Special Master, with the following duties

15 and limitations pursuant to Rule 53 of the Federal Rules of Civil Procedure.

16

1. Appointment and Scope. Pursuant to Rule 53(a)(1)(C), the Court appoints

17 Judge Donohue as Special Master to assist the Court in reviewing Defendants’ privilege

18 assertions over documents the Defendants have submitted for in camera review.

19

2. No Grounds for Disqualification. Pursuant to Rules 53(a)(2) and 53(b)(3), the

20 Court attaches to this Order the Special Master’s declaration identifying any relationship to the

21 Parties, counsel, action, or Court that would require disqualification of a judge under 28 U.S.C.

22 § 455.

23

24

ORDER APPOINTING SPECIAL MASTER - 3

Case 2:17-cv-01297-MJP Document 479 Filed 04/09/20 Page 4 of 5

1

3. Fairness Considerations. Pursuant to Rule 53(a)(3), the Court will protect

2 against unreasonable delay through communication with the Special Master and the Parties as

3 appropriate.

4

4. Notice. Pursuant to Rule 53(b)(1), the Court provided notice to the Parties of its

5 intent to appoint a Special Master and provided an opportunity to be heard on the appointment.

6 (See Dkt. Nos. 466, 470, 472, 474, 476, 478.)

7

5. Diligence. Pursuant to Rule 53(b)(2), the Court directs the Special Master to

8 proceed with all reasonable diligence.

9

6. Special Master’s Duties and Scope of Authority. Pursuant to Rule 53(b)(2)(A),

10 the Special Master shall assist with certain matters, as the Court may determine after notice to

11 the Parties. At this point, the Court limits the scope of the Special Master’s authority to the

12 evaluation of Defendants’ privilege assertions over documents the Defendants submitted for in

13 camera review. The Special Master shall identify to the Court those documents over which he

14 believes the Defendants erroneously made privilege assertions. The Court will then review those

15 documents de novo. The Special Master may recommend but not issue sanctions, Fed. R. Civ. P.

16 53(c)(2), and may not issue orders, Fed. R. Civ. P. 53(c)-(d), but shall report his findings directly

17 to the Court.

18

7. Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the Special Master

19 may communicate ex parte with the Court without restriction. The Special Master shall not

20 communicate ex parte with any party.

21

8. Preservation of Materials. Pursuant to Rule 53(b)(2)(C), the Special Master

22 shall maintain orderly files consisting of all documents submitted to him by the Parties.

23

24

ORDER APPOINTING SPECIAL MASTER - 4

Case 2:17-cv-01297-MJP Document 479 Filed 04/09/20 Page 5 of 5

1

9. Compensation. Judge Donohue has agreed to serve as the Special Master, pro

2 bono.

3

10. Amendments. Pursuant to Rule 53(b)(4), the Court may amend this Order at any

4 time after notice to the Parties and an opportunity to be heard.

5

6

The clerk is ordered to provide copies of this order to all counsel.

7

Dated April 9, 2020.

8

A

9

Marsha J. Pechman

10

Senior United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

ORDER APPOINTING SPECIAL MASTER - 5

Case 2:17-cv-01297-MJP Document 479-1 Filed 04/09/20 Page 1 of 3

Case 2:17-cv-01297-MJP Document 479-1 Filed 04/09/20 Page 2 of 3

Case 2:17-cv-01297-MJP Document 479-1 Filed 04/09/20 Page 3 of 3