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Doe v. Mattis
Citation: 344 F. Supp. 3d 16Docket: Civil Action No. 17-1597 (CKK)
Court: Court of Appeals for the D.C. Circuit; November 29, 2018; Federal Appellate Court
Defendants filed a Motion to Stay the preliminary injunction issued on October 30, 2017, which prohibits the enforcement of a ban on transgender individuals serving in the military. They seek a stay pending potential Supreme Court proceedings or, at minimum, a stay of the injunction's nationwide scope while appealing to the D.C. Circuit, where oral arguments are scheduled for December 10, 2018. Plaintiffs oppose the motion on several grounds. The Court determined that a stay is not justified, as Defendants failed to demonstrate a likelihood of success on appeal, irreparable harm, lack of harm to Plaintiffs, or public interest favoring a stay. This marks Defendants' third attempt to stay or dissolve the injunction, which effectively restored prior policies allowing transgender military service as of January 1, 2018. Previous motions for partial stays were denied by both the District Court and the D.C. Circuit, with the latter emphasizing the Plaintiffs' commitment to serve the nation honorably despite the hardships involved. Consequently, the Court denied Defendants' Motion. Defendants voluntarily dismissed their appeal of a preliminary injunction issued on October 30, 2017, which remains in effect as the case proceeds to discovery. However, discovery was incomplete in early 2018 due to Defendants asserting privileges over requested documents. In March 2018, the President revoked his 2017 memorandum regarding transgender military service, allowing the Secretaries of Defense and Homeland Security to implement new policies. The Mattis Implementation Plan, developed in response, aims to enforce a ban on transgender military service by focusing on "gender dysphoria" and "gender transition," effectively maintaining restrictions similar to those in the 2017 memorandum. The Court denied Defendants' motion to dissolve the preliminary injunction, determining that the Mattis Implementation Plan did not materially differ from the prior directive and continued to hinder transgender individuals' military service. The Court emphasized that allowing service only under the condition of renouncing one’s transgender identity equated to a ban. Consequently, the need for the injunction persisted. Discovery disputes and delays continued, and despite the ongoing injunction, Defendants sought to stay it again, presenting no evidence of harm to military readiness from the injunction's enforcement. Defendants seek relief from a preliminary injunction, claiming urgency due to their recent petition for a writ of certiorari to the Supreme Court, which requests review of the injunction prior to a D.C. Circuit judgment. The Court questions this urgency, noting that the motion serves only to prolong litigation. A stay of the injunction is evaluated based on four factors: (1) likelihood of success on appeal, (2) irreparable injury to the moving party, (3) potential harm to other parties, and (4) public interest. The Court finds that none of these factors support granting a stay and thus denies Defendants' motion. Regarding the likelihood of success on the merits, Defendants argue that Plaintiffs' constitutional challenges are meritless and that the nationwide scope of the injunction is improper. The Court disagrees, reaffirming its position that the Mattis Implementation Plan effectively bars transgender individuals from military service, constituting a class-wide ban based on a protected status. This aligns with previous findings that the plan discriminates based on transgender status and gender, which are subject to heightened scrutiny under the Fifth Amendment. Consequently, the Court maintains that Plaintiffs are likely to succeed in their claims. The Court maintains that the Mattis Implementation Plan does not alter its view that Plaintiffs are likely to succeed on their constitutional claims for three key reasons. First, the 2017 Presidential Memorandum mandated the creation of a plan to enforce a ban on transgender military service by February 2018. Second, Department of Defense officials confirmed that they were preparing this plan in alignment with the President's directive. Third, the Mattis Implementation Plan, submitted to the President in February 2018, explicitly prohibits transgender military service. The 2017 Memorandum specifically instructed the Secretary of Defense to devise an implementation plan focused on prohibiting transgender accession and authorizing the discharge of existing transgender service members, without prompting a reevaluation of the overall policy on transgender service. Additionally, Secretary Mattis's prior statements and actions reflect that the implementation plan was intended to execute the President's directives rather than reconsider them. His August 29, 2017 statement affirmed the Department's commitment to the Presidential policy and indicated the establishment of an advisory panel strictly to assist in implementation, not to assess the legitimacy of transgender service. Thus, the plan was developed solely to operationalize the pre-established ban on transgender individuals serving in the military. Secretary Mattis issued a memorandum on September 14, 2017, titled 'Military Service by Transgender Individuals: Interim Guidance,' which focused on transgender military service rather than solely on individuals with gender dysphoria or those undergoing gender transition. The memorandum reiterated that Secretary Mattis would present a plan to implement the directives in the 2017 Presidential Memorandum, affirming that the Department of Defense would adhere to this policy. On the same day, a separate document announced that a panel was convened to develop an Implementation Plan to enforce the 2017 Memorandum's directives. This document recognized the need to revert to the pre-June 2016 policy that prohibited transgender military service, as mandated by the 2017 Memorandum. The Implementation Plan effectively prohibits transgender individuals from military service, reflecting the same outcome as the 2017 Presidential Memorandum. Although it does not explicitly ban all transgender individuals, it disqualifies those who require or have undergone gender transition and generally disqualifies those with a history of gender dysphoria. Transgender individuals who do not fall into these categories are only permitted to serve in their biological sex, which undermines the concept of "open" service and forces them to conceal their transgender identity. The Court maintains that the plaintiffs are likely to succeed on their constitutional claims, as the ban likely violates their Fifth Amendment rights. Factors influencing this conclusion include the broad nature of the exclusion, the circumstances surrounding its announcement, the lack of factual support for the exclusion, and the military's own rejection of the reasons for the ban. Consequently, the Court remains unconvinced by the defendants' assertion that their appeal has merit. The Court addressed Defendants' challenge regarding the nationwide scope of the preliminary injunction, asserting that it improperly exceeds necessary relief for Plaintiffs' injuries. Defendants claimed this broad relief violates equitable principles and Article III standing. The Court, however, found these arguments unpersuasive, citing *National Mining Association v. United States Army Corps of Engineers*, which supports systemwide injunctions under appropriate circumstances. The Court noted that when a regulatory rule is deemed unlawful, it is standard to vacate the rule rather than limit its application solely to individual petitioners. Given that Plaintiffs were harmed by a broadly applicable rule, the Court deemed it correct to grant systemwide relief, which also extends protections to other transgender individuals not involved in the case. Furthermore, the Supreme Court has indicated that if evidence suggests a statutory provision is facially unconstitutional, an injunction against its enforcement is warranted. The Court concluded that Plaintiffs are likely to succeed in proving Defendants' plan unconstitutional, justifying a comprehensive preliminary injunction. The Defendants’ plan indiscriminately bars transgender individuals from military service based on their classification, creating a widespread impact. The Court also highlighted the benefits of systemwide injunctions in preventing excessive duplication of litigation and clarifying that other courts remain free to consider similar cases, as multiple challenges to Defendants' plan are active in various jurisdictions. Ultimately, the Court affirmed the appropriateness of the nationwide injunction in this context. Defendants' assertion that nationwide injunctions undermine class actions lacks merit, as such injunctions are appropriate, particularly when class certification is unfeasible. The Court remains unconvinced by Defendants' claim that systemwide injunctions deviate from equitable principles, as these remedies have been endorsed by both the D.C. Circuit and the Supreme Court. Defendants reference Monsanto Co. v. Geertson Seed Farms to argue that the Court's nationwide preliminary injunction exceeds necessary relief, asserting that plaintiffs cannot seek injunctions to protect third parties. However, the Supreme Court in Monsanto found the injunction improper due to a lack of demonstrated injury specific to the plaintiffs, distinguishing that case from the current situation where Plaintiffs' injuries stem directly from Defendants' ban on transgender military service. The broader relief benefiting other transgender individuals does not invalidate the injunction's scope, which aligns with the established violation of rights. The Court cites Califano v. Yamasaki to support that the extent of injunctive relief corresponds to the violation's scope, affirming the appropriateness of the systemwide injunction given the established likelihood of success on the Plaintiffs' claim. Furthermore, while Defendants cite United States Department of Defense v. Meinhold, the Court finds that the circumstances in Meinhold, which involved a specific plaintiff's case, are not applicable here. Unlike Meinhold, where the plaintiff's challenge was narrowly focused, Plaintiffs in the current case present a broader constitutional challenge to the Mattis Implementation Plan, warranting the comprehensive nature of the injunction. An injunction limited solely to the Plaintiffs would be ineffective, necessitating a nationwide preliminary injunction to adequately address the Plaintiffs' constitutional injury. Even if the Mattis Implementation Plan is enjoined for the Plaintiffs, its implementation would still cause harm by designating them as an inferior class of service members. The limited injunction would not remedy the broader class-based injury inflicted by the ban. The Court references Madsen v. Women's Health Center, emphasizing that equitable principles support relief that fully addresses the plaintiffs’ injuries. Defendants argue against the need for a systemwide injunction, claiming it infringes on standing principles by providing unnecessary relief. However, they do not contest the Plaintiffs' standing for an injunction specific to them, but rather assert that their standing does not warrant broader relief. Defendants cite Lewis v. Casey to support their position, asserting that the injunction is overly broad and not justified by the Plaintiffs' injuries. The Court distinguishes Casey, noting that in that case, the injury was limited to one plaintiff and did not warrant systemwide changes, whereas here, the claimed violations are sufficiently widespread to justify a systemwide injunction. The case involves a systemwide military policy that effectively bans nearly all transgender individuals from serving, rather than an isolated decision by a single officer. The Court finds that a systemwide remedy, specifically a nationwide preliminary injunction, is warranted due to the broad impact of the Defendants' policy. Defendants reference two Supreme Court cases—Alvarez v. Smith and Summers v. Earth Island Institute—arguing that the plaintiffs lack standing for injunctive relief since their initial injuries have been remedied by the Court's preliminary injunction. However, the Court distinguishes this case from Alvarez and Summers by noting that the plaintiffs have not permanently resolved their injuries, as Defendants have not allowed them to serve as transgender members. The Court concludes that the preliminary injunction only temporarily alleviates the injury, and lifting it would reinstate the plaintiffs' harm. Thus, the plaintiffs retain standing to support the preliminary injunction, as their potential harm is evident if the injunction is lifted. Plaintiffs' standing supports both a preliminary injunction for themselves and a systemwide injunction due to the injurious effects of Defendants' plan. The Court emphasizes that even if Plaintiffs are allowed to serve, they would still suffer harm from being stigmatized as inferior service members under a plan that is only begrudgingly permitted by court order. Staying the nationwide injunction would perpetuate this stigma, reinforcing the class-based injury affecting Plaintiffs and justifying the systemwide scope of the injunction. The Court finds Defendants unlikely to succeed on their appeal, noting that Plaintiffs' constitutional challenges are valid as the Mattis Implementation Plan effectively bans transgender individuals from military service. On the issue of irreparable harm, Defendants claim that the injunction forces the Department of Defense to maintain a policy of allowing transgender service, which they argue poses significant risks to military readiness and cohesion. However, the Court observes that Defendants have not provided new evidence to support their claims and have failed to demonstrate any actual harm since the injunction was issued over a year ago. The Court notes that Defendants had ample time to prepare for the inclusion of transgender individuals in the military, having initiated policies to support their service since June 30, 2016. Furthermore, evidence presented by Plaintiffs indicates substantial efforts by the military to facilitate the successful service of openly transgender individuals, undermining Defendants' assertions of potential harm. Dr. Brown indicated he trained about 250 medical personnel at Military Entrance Processing Stations (MEPS). Former Secretary of the Navy, Raymond Edwin Mabus, Jr., noted that the military had nearly completed preparations to lift the accession ban on transgender individuals nearly two years ago. Mabus referred to an "implementation handbook" published in 2016 by Acting Under Secretary of Defense for Personnel and Readiness, Peter Levine, aimed at supporting transgender service members through their gender transition and clarifying new policies regarding their service. Under the Court's preliminary injunction, transgender individuals can serve in the military if they meet the same medical and physical fitness standards as non-transgender members. The injunction prevents the military from denying service to combat-ready individuals based solely on their transgender status. The Court determined that the Defendants would not suffer irreparable harm by adhering to the military's own plan for transgender accession and retention, as evidenced by the lack of harm experienced since the injunction was issued. The Court expressed concern about the potential instability in the military's composition if the injunction were stayed, especially given ongoing military needs. Defendants highlighted the challenges posed by multiple nationwide preliminary injunctions but the Court viewed this situation differently, suggesting that the existing injunctions did not undermine the military's stability. Multiple courts have affirmed that Plaintiffs are entitled to a preliminary injunction, reinforcing the Court's belief that a nationwide preliminary injunction is justified in this case. The Court remains unconvinced that the Defendants will suffer irreparable harm from maintaining the status quo while the case is decided. Defendants' argument that the harm to the federal government outweighs Plaintiffs' alleged speculative injuries lacks persuasiveness. The Court emphasizes that the implementation of the Mattis Implementation Plan would disqualify individuals undergoing gender transition from military service and severely restrict those with a history of gender dysphoria. This would also stigmatize transgender individuals, undermining their ability to serve in alignment with their gender identity and suggesting they are unfit for service, thus harming both current and prospective service members regardless of their transitional status. Even those protected by a "grandfather provision" would still be subjected to discrimination and stigma, adversely affecting their service and military readiness. Protected conduct, if criminalized without proper examination of its validity, can result in lasting stigma even if unenforceable. The Court determines that the Plaintiffs would suffer significant harm if the nationwide preliminary injunction were stayed but maintained only for them, as this would reinforce the Defendants' plan to categorize transgender service members as inferior. The Court rejects the Defendants' argument that the injunction harms military readiness, stating that a lack of evidence cannot outweigh the public interest in preventing unconstitutional discrimination. The Plaintiffs, who seek to serve honorably, should not be penalized during ongoing warfare. The Court concludes that the Defendants lack a strong likelihood of success on appeal, do not face irreparable harm, and that the public interest supports maintaining the preliminary injunction. Consequently, the Defendants' motion to stay the injunction is denied. The Court recognizes that much of this reasoning reiterates earlier opinions, but it aims to assist the D.C. Circuit in its forthcoming review, noting that the Defendants opted not to file a reply brief and that oral argument was deemed unnecessary for the decision. Additionally, a separate opinion was issued dissolving the preliminary injunction against President Trump and dismissing him from the case.