1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JANE DOE 2, et al., 

 Plaintiffs 

 v. 

JAMES N. MATTIS, et al.,

 Defendants 

Civil Action No. 17-1597 (CKK)

MEMORANDUM OPINION

(August 24, 2018) 

On July 26, 2017, President Donald J. Trump issued a statement via Twitter announcing 

that “the United States Government will not accept or allow transgender individuals to serve in 

any capacity in the U.S. Military.” A formal Presidential Memorandum followed on August 25, 

2017. Before the 2017 Presidential Memorandum, the Department of Defense had announced 

that openly transgender individuals would be allowed to enlist in the military, effective January 

1, 2018, and had prohibited the discharge of service members based solely on their gender 

identities. The 2017 Presidential Memorandum reversed these policies. It indefinitely extended 

the prohibition against transgender individuals entering the military (a process formally referred 

to as “accession”), and required the military to authorize the discharge of transgender service 

members. The President ordered Secretary of Defense James N. Mattis to submit a plan for 

implementing the policy directives of the 2017 Presidential Memorandum by February 2018. 

Plaintiffs filed suit and sought preliminary injunctive relief, which the Court granted. 

Currently pending before the Court are Defendants’ [115] Motion to Dismiss Plaintiffs’ 

Second Amended Complaint or, in the Alternative, Defendants’ Motion for Summary Judgment, 

and Plaintiffs’ [131] Cross-Motion for Summary Judgment. The Court issued a Memorandum 

Opinion and Order denying Defendants’ Motion to the extent that it sought the dismissal of 

Plaintiffs’ claims on mootness and standing grounds. As an alternative form of relief, 
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Defendants’ Motion also seeks summary judgment. Plaintiffs oppose Defendants’ motion for 

summary judgment, and have filed their own cross-motion for summary judgment. However, 

Plaintiffs also ask this Court to defer ruling on summary judgment because Plaintiffs have not 

been able to conclude the discovery process to develop a record, due to Defendants’ overly broad 

assertions of privilege. 

 Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a 

whole, the Court DENIES both parties’ motions for summary judgment. Defendants claim that 

their decisions regarding transgender military service are owed great deference because they are 

the product of extensive deliberation, study and review. However, at the same time, Defendants

have withheld information concerning this deliberation, study and review from Plaintiffs. As a 

result, there undeniably are factual disputes in this case. Among other areas of dispute, the 

parties disagree about the nature of the process that resulted in the challenged policies. The facts 

about that process are clearly material. They affect the threshold question that the Court must 

answer before assessing the constitutionality of Defendants’ policy: what level of scrutiny the 

Court should apply. Because genuine disputes of material fact exist, summary judgment for 

either party cannot be entered. Instead, the Court will grant Plaintiffs’ request to continue with 

discovery. 

 

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 The Court’s consideration has focused on the following documents: 

• Defs.’ Mem. in Supp. of Mot. to Dismiss Pls.’ 2d Am. Compl., or, in the Alternative, 

Defs.’ Mot. for Summ. J., ECF No. 115 (“Defs.’ Mem.”);

• Pls.’ Opp’n to Defs.’ Mot. for Summ. J. and Cross-Mot. for Summ. J., ECF No. 131-1 

(“Pls.’ Opp’n and Cross-Mot.”);

• Defs.’ Reply in Supp. of their Mot. to Dismiss Pls.’ 2d Am. Compl., or, in the Alternative, 

for Summ. J., and Opp’n to Pls.’ Cross-Mot. for Summ. J., ECF No. 138 (“Defs.’ 

Reply”); and

• Pls.’ Reply in Support of their Cross-Mot. for Summ. J., ECF No. 149 (“Pls.’ Reply”). 

In an exercise of its discretion, the Court finds that holding oral argument in this action would 

not be of assistance in rendering a decision. See LCvR 7(f). 
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I. BACKGROUND

Plaintiffs are current and aspiring transgender service members. Many have years of 

experience in the military. Some have decades. They have been deployed on active duty in Iraq 

and Afghanistan. They have and continue to serve with distinction. All fear that the directives 

of the 2017 Presidential Memorandum will have devastating impacts on their careers and their 

families. Accordingly, they filed this lawsuit challenging those directives and moved this Court 

to enjoin the implementation of the 2017 Presidential Memorandum. They claimed that the 

President’s directives violate the fundamental guarantees of due process afforded by the Fifth 

Amendment to the United States Constitution. 

On October 30, 2017, the Court issued a preliminary injunction in this case. The Court 

found that Plaintiffs had standing and were likely to succeed on their Fifth Amendment claim. 

The Court concluded that, as a form of government action that classifies people based on their 

gender identity, and disfavors a class of historically persecuted and politically powerless 

individuals, the President’s directives were subject to heightened scrutiny. Plaintiffs claimed that 

the President’s directives could not survive such scrutiny because they were not genuinely based 

on legitimate concerns regarding military effectiveness or budget constraints, but were instead 

driven by a desire to express disapproval of transgender people generally. The Court found that 

a number of factors—including the breadth of the exclusion ordered by the directives, the 

unusual circumstances surrounding the President’s announcement of them, the fact that the 

reasons given for them did not appear to be supported by any facts, and the recent rejection of 

those reasons by the military itself—strongly suggested that Plaintiffs’ Fifth Amendment claim 

was meritorious. Accordingly, the Court enjoined Defendants from enforcing the President’s 

directives. The effect of the Court’s preliminary injunction was to revert to the status quo ante
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with regard to accession and retention that existed before the issuance of the 2017 Presidential 

Memorandum. 

Defendants appealed, see Defs.’ Notice of Appeal, ECF No. 66, and moved this Court to 

stay the portion of its preliminary injunction that required Defendants to begin accepting

transgender individuals into the military on January 1, 2018, see Defs.’ Mot. for Partial Stay of 

Prelim. Inj. Pending Appeal, ECF No. 73. On December 11, 2017, the Court denied Defendants’ 

motion to stay. See Dec. 11, 2017 Order, ECF No. 75. 

Defendants then sought the same relief from the United States Court of Appeals for the 

District of Columbia Circuit (“D.C. Circuit”). On December 22, 2017, the D.C. Circuit denied 

Defendants’ motion to stay this Court’s preliminary injunction. See Doe 1 v. Trump, No. 17-

5267, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017). The D.C. Circuit concluded that Defendants 

had not demonstrated that they had a strong likelihood of success on appeal, that they would be 

irreparably harmed absent a stay, or that the stay would not harm the other parties to the 

proceeding. Id. The D.C. Circuit explained that “in the balancing of equities, it must be 

remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and 

dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation 

from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to 

protect the Nation, the people of the United States, and the Constitution against all who would 

attack them.” Id. at *3. After the D.C. Circuit’s opinion was issued, Defendants voluntarily 

dismissed their appeal of this Court’s preliminary injunction. The military began permitting 

openly transgender individuals to accede on January 1, 2018. 

This case then moved forward into the discovery stage. Defendants strenuously resisted 

engaging in discovery. As noted above, the 2017 Presidential Memorandum had called for the 
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Secretary of Defense to submit a plan to implement the President’s policy directives by February

2018. Defendants repeatedly argued that discovery should be halted until that plan was 

submitted. Defendants even argued at one point that Plaintiffs were not entitled to discovery in 

this case at all. The Court repeatedly rejected Defendants’ arguments and ordered Defendants to 

cooperate with discovery so that this case could move forward efficiently toward an ultimate 

resolution on the merits. Despite the Court’s orders, discovery remains unfinished because 

Defendants have asserted that a substantial portion of the documents and information sought by 

Plaintiffs are privileged (pursuant to the deliberative process privilege and the presidential 

communications privilege), and the parties’ disputes about these assertions of privilege remain 

outstanding. 

In related cases throughout the country, Defendants’ assertions of privilege have not 

fared well. The courts in Karnoski v. Trump, No. 17-cv-1297-MJP (W.D. Wash.) and Stone v. 

Trump, No. 17-cv-2459-GLR (D. Md.) have recently rejected Defendants’ arguments and 

ordered Defendants to produce much of the discovery that they have withheld. 

In February 2018, as ordered by the 2017 Presidential Memorandum, Secretary of 

Defense Mattis presented a memorandum to the President that proposed a policy to effectively 

prevent transgender military service. See Defs.’ Mot. to Dissolve the Preliminary Injunction, Ex. 

1, ECF No. 96-1 (hereinafter, the “Mattis Implementation Plan”). The Mattis Implementation 

Plan, unlike the President’s 2017 tweet and memorandum, purports not to be a blanket ban on all 

“transgender individuals.” However, the plan effectively implements such a ban by targeting 

proxies of transgender status, such as “gender dysphoria” and “gender transition,” and by 

requiring all service members to serve “in their biological sex.” Based on the conclusion “that 

there are substantial risks associated with allowing the accession and retention of individuals 
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with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course 

of treatment to change their gender,” Mattis Implementation Plan at 2, the Mattis Implementation 

Plan proposes 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 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. 

Id. at 2-3. 

To summarize: under the Mattis Implementation Plan, individuals who require or have 

undergone gender transition are absolutely disqualified from military service; individuals with a 

history or diagnosis of gender dysphoria are largely disqualified from military service; and, to 

the extent that there are any individuals who identify as “transgender” but do not fall under the 

first two categories, they may serve, but only “in their biological sex.” By definition, 

transgender persons do not identify or live in accord with their biological sex, which means that 

the result of the Mattis Implementation Plan is that transgender individuals are generally not 

allowed to serve openly in the military. There is only one narrow class of transgender 

individuals who are allowed to serve as openly transgender under the Mattis Implementation 
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Plan. Pursuant to a “grandfather provision,” those “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” the policy set forth in the Mattis Implementation Plan, may 

continue to serve in their preferred gender. 

 The reasoning underlying the Mattis Implementation Plan is spelled out in a second 

memorandum that was sent from the Department of Defense to the President in February 2018. 

See Defs.’ Mot. to Dissolve the Preliminary Injunction, Ex. 2, ECF No. 96-2 (hereinafter, the 

“Panel Report”). Like the Mattis Implementation Plan, the Panel Report carefully avoids 

categorical language banning all transgender individuals. Instead, the document speaks in terms 

of individuals with “gender dysphoria” and those who have undergone or will require “gender 

transition” (both of which, again, are proxies for transgender status). Generally speaking, the 

Panel Report concludes that individuals with gender dysphoria or who have undergone or will 

require gender transition undermine the military. According to the report, these service members 

are fundamentally incompatible with the military’s mental health standards, physical health 

standards, and sex-based standards. The report suggests that they are a detriment to military 

readiness and unit cohesion. It likens gender dysphoria to conditions such as “bipolar disorder, 

personality disorder, obsessive-compulsive disorder, suicidal behavior, and even body 

dysmorphic disorder.” Panel Report at 20. It concludes that individuals with gender dysphoria 

or who have undergone or will require gender transition are more likely to have other mental 

health conditions and substance abuse problems, and to commit suicide. Id. at 21. The Panel 

Report also states that these individuals impose “disproportionate costs” on the military. Id. at 

41. For the most part, in lieu of affirmative evidence, the Panel Report repeatedly cites 

“uncertainty” in the medical field about these individuals as a reason to urge that the military 
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“proceed with caution.” Id. at 6. Although not necessary to the outcome of this particular 

Memorandum Opinion, it is worth noting that these conclusions were immediately denounced by 

the American Psychological Association and the American Medical Association. See Decl. of 

Lauren Godles Milgroom, ECF No. 128 (“Milgroom Decl.”), Exs. GG, HH. 

On March 23, 2018, Defendants filed a Notice informing the Court that President Trump 

had issued a second memorandum on military service by transgender individuals. See Defs.’ 

Notice, ECF No. 95. In the 2018 Presidential Memorandum, the President stated that he 

“revokes” his 2017 Presidential Memorandum, “and any other directive [he] may have made 

with respect to military service by transgender individuals.” Id. at 1. The President ordered that 

“[t]he Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. 

Coast Guard, may exercise their authority to implement any appropriate policies concerning 

military service by transgender individuals.” Id. To be clear, as has just been laid out, the 

“appropriate policies” that the Secretaries intended to implement had already been developed and 

proposed to the President at the time he issued this memorandum. 

The events described above sparked a great debate between the parties as to the future of 

this case, and prompted the filing of numerous motions. First, Defendants moved to dismiss and 

to dissolve the preliminary injunction on the grounds that the Mattis Implementation Plan has

changed the circumstances of this case. Defendants argued that the Mattis Implementation Plan 

represents a “new policy” divorced and distinct from the President’s 2017 policy directives that 

were previously enjoined by this Court. They also argued that the Mattis Implementation Plan 

does not harm the Plaintiffs in this case. Accordingly, Defendants sought the dismissal of 

Plaintiffs’ Second Amended Complaint for lack of jurisdiction because Plaintiffs lack standing 

and because their claims are moot. For largely the same reasons, Defendants also argued that the 
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Court’s preliminary injunction should be dissolved. On August 6, 2018, the Court issued a 

Memorandum Opinion and Order rejecting these arguments and denying Defendants’ Motion to 

Dismiss Plaintiffs’ Second Amended Complaint and Defendants’ Motion to Dissolve the 

Preliminary Injunction. See Doe 2 v. Trump, 315 F. Supp. 3d 474 (D.D.C. 2018). 

Defendants have also moved for summary judgment. A major premise of Defendants’ 

summary judgment argument is their contention that the Court should defer to Defendants’ 

assessment about transgender military service because it was the product of a careful,

independent examination of this issue. Plaintiffs oppose Defendants’ motion for summary 

judgment, and have also filed a cross-motion for summary judgment. However, citing Federal 

Rule of Civil Procedure 56(d), Plaintiffs also ask this Court to defer ruling on the parties’ crossmotions “[i]f the Court determines that resolution of the parties’ cross-motions for summary 

judgment turns on whether or not the process that resulted in the Mattis Plan and the Panel 

Report reflected independent military judgment.” Pls.’ Opp’n and Cross-Mot. at 18 n.5. This is 

because, according to Plaintiffs, “Defendants have objected to virtually all discovery requests 

seeking evidence concerning whether, as a factual matter, the review process was an exercise of 

independent judgment.” Id. Accordingly, “Plaintiffs seek the opportunity to complete fact 

discovery.” Id. 

The Court’s August 6, 2018 Memorandum Opinion and Order left the parties’ crossmotions for summary judgment unresolved. This Memorandum Opinion now addresses those 

motions. The Court DENIES both motions for summary judgment because genuine disputes of 

material fact remain. The parties dispute the facts related to the process used by Defendants to 

prepare the current proposed policy on transgender military service. Those facts are material 

because they affect the degree of deference owed by this Court to Defendants’ policy decisions, 
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and the level of scrutiny this Court will apply to the challenged policy. The Court does not mean 

to imply that these are the only genuine disputes of material fact that remain in this case. But the 

existence of these disputes alone is sufficient to render summary judgment inappropriate. 

Accordingly, instead of summarily adjudicating this case, the Court will allow the parties to 

continue to engage in discovery. 

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar 

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly 

disputes over facts that might affect the outcome of the suit under the governing law will 

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to 

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient 

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

When faced with a motion for summary judgment, the district court may not make 

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the 

light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Id. at 

255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent 

yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 

66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this 
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regard, the non-movant must “do more than simply show that there is some metaphysical doubt 

as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 

586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary 

judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

III. DISCUSSION

The Court cannot summarily adjudicate the claims in this case on the present record. 

There are two steps to the Court’s analysis of Plaintiffs’ constitutional claims. The first step is to 

determine what level of scrutiny the Court should apply, and how much deference should be 

given, when reviewing the challenged policy. Only once that threshold step has been completed 

can the Court move on to the second step: applying that level of scrutiny to the policy and 

determining whether or not it is constitutional. Due in part to Defendants’ refusal to provide 

discovery, summary judgment is not currently appropriate on the first step. 

Defendants’ primary defense in this case thus far has been their argument that the Court 

should apply an extremely low level of scrutiny to their proposed policy on transgender military 

service. As support, Defendants primarily rely on Rostker v. Goldberg, 453 U.S. 57 (1981), 

another case regarding alleged discrimination in the military context. In Rostker, the United 

States Supreme Court assessed the constitutionality of a law that authorized the President to 

require the registration of males, but not females, for military service. Id. at 59. The Supreme 

Court in that case did not hold that courts must simply rubber stamp any allegedly discriminatory 

policy if it relates to military personnel. The Court expressly declined to hold that the 

heightened level of scrutiny that is generally applicable to gender discrimination does not apply 

in the context of the military. Id. at 69. However, that Court did hold—based on the particular 
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facts before it—that the district court in that case had not sufficiently deferred to the reasoned 

consideration and decision-making of Congress regarding female military registration. 

Defendants argue that the military personnel decision in this case—largely excluding 

transgender persons from the military—deserves similar deference. When granting Plaintiffs’ 

motion for a preliminary injunction, this Court held that it was not convinced—at that 

preliminary stage—that Rostker required the Court to apply a low level of scrutiny in this case. 

See Doe 1 v. Trump, 275 F. Supp. 3d 167, 214 (D.D.C. 2017). This Court reasoned that the facts 

in Rostker were starkly different than the facts in this case. Id. The Rostker Court had noted that 

“Congress did not act unthinkingly or reflexively and not for any considered reason,” when it 

passed the challenged policy. Rostker, 453 U.S. at 72. To the contrary, the Rostker Court relied 

on Congress’ “studied choice of one alternative in preference to another,” and the fact that the 

policy at issue in that case had been “extensively considered by Congress in hearings, floor 

debate, and in committee.” Id. At the preliminary injunction stage, this Court held that such 

reasoned decision-making did not appear to have occurred in this case. See Doe 1, 275 F. Supp. 

3d at 214. The Court’s holding was, of course, based on the preliminary record at that time. 

Now, Defendants contend that the military has conducted the sort of reasoned decisionmaking that warrants deference. According to Defendants, even if deference was not owed to 

the President’s original directives (a point Defendants do not concede), the Court must now 

engage in a “highly deferential form of review” because, after the President’s 2017 directives, 

the military conducted an “independent reexamination” of the issue that consisted of “an 

extensive deliberative process lasting over seven months and involving many of DoD’s highranking officials as well as experts in a variety of subjects.” Defs.’ Mot. at 35, 39. According to 

Defendants, they “received extensive evidence on the issue,” and their decision to propose the 
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policy set forth in the Mattis Implementation Plan “rested on the considered professional 

judgment of multiple military experts.” Id. at 37. Defendants argue that this process entitles 

them to the sort of deferential review discussed in Rostker. This is the crux of Defendants’ 

defense. It is restated in some form or another in nearly all of Defendants’ briefs. 

But Plaintiffs do not agree that any legitimate, independent review of transgender 

military service has taken place. They contend that the only process that has occurred since the 

President’s 2017 Tweet and Memorandum was one merely to prepare a plan to implement an 

initial, unsupported, decision of the President to ban transgender military service. According to 

Plaintiffs, whatever process occurred was not meaningfully independent from, and indeed was 

constrained by, that initial decision. Because there was no independent assessment of the issue 

or independent exercise of military judgment, Plaintiffs argue that no special deference is owed. 

Faced with this dispute, the Court holds that summary judgment is not appropriate at this 

stage. Summary judgment cannot be granted to the Plaintiffs or the Defendants if there are 

genuine disputes of material fact. See Fed. R. Civ. P. 56(a). The facts about the process leading 

up to the development of the Mattis Implementation Plan are both material and in dispute. 

First, the facts are material—they go to the heart of the degree of deference owed, and the 

level of scrutiny to be applied, in this case. The military’s assessment of transgender military 

service is a primary reason Defendants cite for their argument that this Court must be highly 

deferential to their proposed policy. As the court in Karnoski v. Trump recently explained, the 

constitutionality of the challenged policy “necessarily turns on facts related to Defendants’ 

deliberative process.” Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 3608401, at *4 (W.D. 

Wash. July 27, 2018). In ordering discovery on this issue, that court held that “Defendants may 

not simultaneously claim that deference is owed to the Ban because it is the product of 
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‘considered reason [and] deliberation,’ ‘exhaustive study,’ and ‘comprehensive review’ by the 

military . . . while also withholding access to information concerning these deliberations, 

including whether the military was even involved.” Id. “This information is central to the 

litigation.” Id. This Court agrees that this information is material to the parties’ dispute in this 

case. 

Second, these material facts are still in dispute. The parties disagree about the 

fundamental nature of the process leading up to the issuance of the Mattis Implementation Plan, 

and both cite support for their positions in the (limited) record. For example, Defendants cite 

statements by Department of Defense officials regarding the “independent” nature of the process 

and the fact that their “review” was not affected by “external factors.” Plaintiffs cite other 

statements that suggest that the process was inherently circumscribed by an already-made 

decision of the President to exclude transgender persons from the military. This is a genuine 

factual dispute. 

Citing Federal Rule of Civil Procedure 56(d), Plaintiffs have asked this Court to defer 

ruling on the parties’ cross-motions for summary judgment “[i]f the Court determines that 

resolution of the parties’ cross-motions for summary judgment turns on whether or not the 

process that resulted in the Mattis Plan and the Panel Report reflected independent military 

judgment.” Pls.’ Opp’n and Cross-Mot. at 18 n.5. This is because, Plaintiffs argue, “Defendants 

have objected to virtually all discovery requests seeking evidence concerning whether, as a 

factual matter, the review process was an exercise of independent judgment.” Id. Accordingly, 

“Plaintiffs seek the opportunity to complete fact discovery.” Id. 

Plaintiffs are entitled to complete discovery. As already stated above, despite the fact 

that one of Defendants’ main defenses in this action is that their decisions regarding transgender 
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military service are owed great deference because they are the product of reasoned deliberation, 

study and review by the military, Defendants have withheld nearly all information concerning 

this alleged deliberation. This is not how civil litigation works. Defendants cannot prevent 

Plaintiffs from obtaining the facts about a disputed issue and then expect to be granted summary 

judgment on that issue. Because genuine disputes of material fact exist and Plaintiffs are entitled

to continue pursuing discovery of those facts, the Court will not summarily adjudicate this case 

at this time. 

IV. CONCLUSION

For the foregoing reasons, the parties’ Cross-Motions for Summary Judgment will be

DENIED. The level of scrutiny the Court must apply, and the degree of deference owed, are

threshold questions that must be resolved before the Court can assess the constitutionality of the 

challenged policy. Summary judgment on this question is not appropriate at this time because 

the parties dispute the basic facts that will inform its answer, and Plaintiffs have asked for leave 

to finish discovery into these facts before summary judgment is entered. Instead of granting 

either of the parties’ motions for summary judgment, the Court will allow Plaintiffs the 

opportunity to complete discovery. An appropriate Order accompanies this Memorandum 

Opinion. 

 /s/ 

COLLEEN KOLLAR-KOTELLY

United States District Judge