Karnoski v. Trump, No. 18-35347 (9th Cir. 2019)
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Transgender individuals who serve in the military or seek to do so, joined by the State of Washington, filed suit alleging that the August 2017 Memorandum, implementing President Trump's Twitter announcement that transgender individuals would not be allowed to serve in the military, unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum and defendants appealed.
In the meantime, the then-Secretary of Defense studied the issue and produced a report recommending that the President revoke the 2017 Memorandum in order to adopt the report's recommendation. The President revoked the 2017 Memorandum and authorized the Secretary to implement the policies in the report (the 2018 Policy). Defendants then requested that the district court resolve the preliminary injunction on the basis of the new 2018 Policy.
The Ninth Circuit vacated the district court's order striking defendants' motion to dissolve the preliminary injunction and remanded to the district court for reconsideration. In light of the Supreme Court's January 22, 2019 stay of the district court's preliminary injunction, the panel stayed the preliminary injunction through the district court's further consideration of defendants' motion to dissolve the injunction. Furthermore, the panel 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 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).
Court Description: 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 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 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).
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