Ryan Karnoski v. Donald Trump , 926 F.3d 1180 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN KARNOSKI; CATHRINE No. 18-35347
SCHMID, Staff Sergeant; D. L.,
FKA K. G., by his next friend D.C. No.
and mother, LAURA GARZA; 2:17-cv-01297-MJP
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,
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
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 No. 18-72159
official capacity as President of
the United States; UNITED D.C. No.
STATES OF AMERICA; PATRICK 2:17-cv-01297-MJP
M. SHANAHAN, in his official
capacity as Acting Secretary of
Defense; UNITED STATES OPINION
DEPARTMENT OF DEFENSE; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KEVIN K.
MCALEENAN, Acting Secretary
of Homeland Security,
________________________
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.
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
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.
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).
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.
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
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.
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.
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.
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 44-
page 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
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).
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 birth-
assigned 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).
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.
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
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”).
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 pre-
2016 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.”
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.
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
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.
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 44-
page 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
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
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
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).
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
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”).
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).
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
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
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.
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
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.”
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.
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 di rect ed at pres ident ial
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:
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-by-
document 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,
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
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).
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.
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
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.
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
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).
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).
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:
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?
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
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
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
“p re s i d ent ial deci s i onm aki ng 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
20Here, and in future quotes, the parallel citations have been omitted.
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
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.
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
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
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
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.
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.
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
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.
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.