Summary
The Ninth Circuit vacated the district court's order striking the government's motion to dissolve a preliminary injunction against the 2017 transgender military ban, holding that the 2018 Policy (based on a 44-page Defense Department report) constituted a significant change in facts warranting reconsideration. The court held that intermediate scrutiny (more than rational basis, less than strict scrutiny) applies to the facially discriminatory 2018 Policy, and that a presumption of deference is owed to military decisionmaking when the policy appears to be the product of independent military judgment. The court also issued a writ of mandamus vacating the district court's discovery order, directing careful consideration of executive privileges (presidential communications and deliberative process) before compelling discovery from the executive branch.
Topics
Practice areas
Questions Presented
- Whether the district court erred in striking the government's motion to dissolve the preliminary injunction without considering the merits of the 2018 Policy.
- What level of constitutional scrutiny applies to the 2018 Policy's discrimination based on transgender status.
- Whether deference is owed to the 2018 Policy as a military judgment.
- Whether the district court erred in its discovery order compelling production of government documents without adequately considering executive privileges.
Holdings
- The 2018 Policy is significantly different from the 2017 Memorandum in both its creation and specific provisions, so the district court must address whether the change warrants dissolution of the preliminary injunction.
- The appropriate standard of review is intermediate scrutiny - something more than rational basis but less than strict scrutiny.
- On the current record, a presumption of deference is owed to the 2018 Policy because it appears to have been the product of independent military judgment.
- The district court failed to adequately consider executive privileges, particularly the presidential communications privilege, and must apply the standards from Cheney and Warner on remand.
Key quotations
“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.” (at 39)
“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.” (at 42-43)
“On the current record, a presumption of deference is owed, because the 2018 Policy appears to have been the product of independent military judgment.” (at 44-45)
“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.” (at 55)
Factual background
In July 2017, President Trump announced on Twitter that transgender individuals would not be allowed to serve in the military. This was followed by a Presidential Memorandum in August 2017 implementing the ban. Plaintiffs, transgender individuals and organizations, sued alleging unconstitutional discrimination. The district court issued a nationwide preliminary injunction in December 2017. In March 2018, after a study by a panel of military experts, Secretary Mattis recommended a new policy, which the President adopted. The new policy disqualified transgender persons with a history or diagnosis of gender dysphoria from military service, with limited exceptions. The government moved to dissolve the preliminary injunction, but the district court struck the motion. The government also appealed a discovery order that compelled production of documents withheld under the deliberative process privilege.
Procedural history
The district court issued a preliminary injunction in 2017 against the 2017 Memorandum. When the President adopted the 2018 Policy based on the Mattis report, the government moved to dissolve the injunction. The district court struck the motion without considering the merits. The government appealed. Additionally, the district court ordered discovery of government documents over executive privilege objections. The government petitioned for a writ of mandamus. The Ninth Circuit consolidated the appeal and petition.
Remand instructions
On remand, the district court shall: (1) reconsider the motion to dissolve the preliminary injunction on the merits, applying the appropriate standard of review (intermediate scrutiny) and giving appropriate deference to the 2018 Policy as a military judgment; (2) reconsider discovery requests giving full consideration to the presidential communications privilege and deliberative process privilege as set forth in Cheney and Warner; (3) stay the preliminary injunction through its reconsideration of the motion to dissolve; (4) if the district court denies the motion to dissolve, the stay shall remain in place throughout any appeal by the Government.