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Posts Tagged ‘U.S. District Court for the Western District of Washington’

Federal Court Rejects Trump Administration Ploy and Orders Trial on Trans Military Ban

Posted on: April 14th, 2018 by Art Leonard No Comments

U.S. District Judge Marsha J. Pechman issued an Order on April 13 in Karnoski v. Trump, one of four pending legal challenges to the Trump Administration’s announced ban on military service by transgender people.  Judge Pechman, who sits in the Western District of Washington (Seattle), rejected the Administration’s argument that existing preliminary injunctions issued by her and three other federal district judges last year against the transgender ban are moot because of President Donald J. Trump’s March 23 Memorandum, which purported to “revoke” his August 25, 2017, Memorandum and July 26, 2017, tweets announcing the ban.  Karnoski v. Trump,  2018 WL 1784464 (W.D. Wash.).

Her skepticism as to this is clear from her description of events: “The 2018 Memorandum confirms [Trump’s] receipt of [Defense Secretary James Mattis’s] Implementation Plan, purports to ‘revoke’ the 2017 Memorandum and ‘any other directive [he] may have made with respect to military service by transgender individuals [an oblique reference to the July tweets],’ and directs the Secretaries of Defense and Homeland Security to ‘exercise their authority to implement any appropriate policies concerning military service by transgender individuals.’”  Thus, the judge rejected the Administration’s contention that Mattis was directed by the President to have a new study made to decide whether to let transgender people serve, and saw it for what it was: an order to propose a plan to implement Trump’s announced ban.

Judge Pechman also rejected the government’s argument that the policy announced in the February 22 Memorandum signed by Secretary James Mattis either deprives all the plaintiffs in the case of “standing” to sue the government, or that the policy it announces is so different from the one previously announced by President Trump that the current lawsuit, specifically aimed at the previously announced policy, is effectively moot as well. The government argued that due to various tweaks and exceptions to the policy announced on March 23, none of the individual plaintiffs in this case were threatened with the kind of individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown that they still had a personal stake in the outcome of this case.

Instead, and most consequentially, Judge Pechman found that the court should employ the most demanding level of judicial review – strict scrutiny – because transgender people are a “suspect class” for constitutional purposes.  However, Judge Pechman decided that it is premature to grant summary judgment to the plaintiffs, because disputed issues of material fact will require further hearings to resolve.  One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States.  Another is whether the purported “study” that produced the February 22 “Report and Recommendations” and Mattis’s Memorandum are entitled to the kind of deference that courts ordinarily extend to military policies.

Judge Pechman’s boldest step is abandoning her prior ruling in this case that the challenged policies are subject only to heightened scrutiny, not strict scrutiny.  Although the Supreme Court has not been consistent or precise in its approach to the level of judicial scrutiny for constitutional challenges to government actions, legal scholars and lower courts have generally described its rulings as divided into three general categories – strict scrutiny, heightened scrutiny, and rationality review.

If a case involves discrimination that uses a “suspect classification,” the approach is strict scrutiny. The policy is presumed unconstitutional and the government has a heavy burden of showing that it is necessary to achieve a compelling government interest, and is narrowly tailored to achieve that interest without unnecessarily burdening individual rights.  The Supreme Court has identified race, national origin and religion as suspect classifications, and has not identified any new such classifications in a long time.  Lower federal courts have generally refrained from identifying any new federal suspect classifications, but the California Supreme Court decided in 2008 that sexual orientation is a suspect classification under its state constitution when it struck down the ban on same-sex marriage.

Challenges to economic and social legislation that do not involve “suspect classifications” or “fundamental rights” are generally reviewed under the “rational basis” test. They are not presumed unconstitutional, and the burden is on the plaintiff to show that there was no rational, non-discriminatory reason to support the challenged law.  Courts generally presume that legislatures have rational policy reasons for their actions, but evidence that a law was adopted solely due to animus against a particular group will result in it being declared unconstitutional.

During the last quarter of the 20th century, the Supreme Court began to identify some types of discrimination that fell somewhere between these existing categories, and the third “tier” of judicial review emerged, first in cases involving discrimination because of sex.  The Supreme Court has used a variety of verbal formulations to describe this “heightened scrutiny” standard, but it places the burden on the government to show that such a law actually advances an important government interest.

So far, litigation about transgender rights in the federal courts has progressed to a heightened scrutiny standard in decisions from several circuit courts, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. Ruling on preliminary injunction motions in the transgender military cases last fall, Judge Pechman and the three other federal judges all referred to a heightened scrutiny standard.  Now Judge Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.

It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis Memorandum and the Report.   Judge Pechman has already signaled in her Order her skepticism as to this.  By characterizing this as an “Implementation Plan,” she implies that the question whether Trump actually consulted with generals and military experts back in July before tweeting his absolute ban remains in play, and she pointedly notes the continued refusal by the government to reveal who, if anyone, Trump consulted.

“Defendants to date have failed to identify even one General or military expert he consulted,” she wrote, “despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’”  Here she quotes Joint Chiefs Chairman Gen. Joseph Dunford’s statement the day after the tweets that “yesterday’s announcement was unexpected,” and news reports that White House and Pentagon officials “were unable to explain the most basic of details about how it would be carried out.”  She also notes that Mattis was given only one day’s notice before the announcement.  “As no other persons have ever been identified by Defendants – despite repeated Court orders to do so – the Court is led to conclude that the Ban was devised by the President, and the President alone.”

Thus, it would be logical to conclude, as she had preliminarily concluded last year when she issued her injunction, that no military expertise was involved and so no deference should be extended to the policy. On the other hand, the new “Report and Recommendations” are now advanced by the government as filling the information gap and supporting deference.  But Judge Pechman remains skeptical.  (There are press reports, which she does not mention, that this document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and it has been subjected to withering criticism by, among others, the American Psychiatric Association.)

Citing their “study,” the government now claims “that the Ban – as set forth in the 2018 Memorandum and the Implementation Plan – is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’  Defendants claim that the Panel was comprised of senior military leaders who received ‘support from medical and personnel experts from across the [DoD] and [DHS],’ and considered ‘input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professions with experience in the care and treatment of individuals with gender dysphoria.’  The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy began to take effect last year.’”

But, having “carefully considered the Implementation Plan,” wrote Pechman, “the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018.  As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [The State of Washington, which has intervened as a co-plaintiff] have not yet had an opportunity to test or respond to these claims.  On the present record, the Court cannot determine whether the DoD’s deliberate 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.”

In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes, and she is undoubtedly aware that its accuracy has been sharply criticized. Furthermore, she wrote, “The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.”  And, she noted pointedly, the Defendants’ “claimed justifications for the Ban – to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ – are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”  In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.

Thus, although the judge denied for now the Plaintiffs’ motions for summary judgment, it was because factual controversies must be resolved before the court can make a final ruling on the merits.

The Defendants won only one tiny victory in this ruling: a concession that the court lacks jurisdiction to impose injunctive relief against President Trump in his official capacity. However, even that was just a partial victory for Defendants, as Judge Pechman rejected the suggestion that the court lacks jurisdiction to issue a declaratory judgment against the President.  “The Court is aware of no case holding that the President is immune from declaratory relief – rather, the Supreme Court has explicitly affirmed the entry of such relief,” citing several cases as examples.  “The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President, but that this case presents a ‘most appropriate instance’ for such relief,” she continued, taking note of Trump’s original Twitter announcement, and that two of the operative Memoranda at issue in the case were signed by Trump.  If, as Judge Pechman suspects, the Ban was devised in the first instance by Trump, and by Trump alone, a declaratory judgment that his action violated the Constitution would be entirely appropriate.

Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis LLP and Newman Du Wors LLP.

(Post script):

Federal Court Refuses to Dismiss Discrimination Claims by Married Same-Sex Couples Denied Benefits Plan Participation

Posted on: September 25th, 2014 by Art Leonard No Comments

A Washington State employer that refused for almost a year to allow employees to enroll their same-sex spouses in the employer’s health plan lost its motion to dismiss a discrimination lawsuit pending before U.S. District Judge Ricardo S. Martinez on September 22.  The employer, BNSF Railway Company, insisted that it could not provide the benefits because the employee benefits plan defined marriage as “between one man and one woman.”  The employer did not extend the benefits until January 1, 2014, after it had amended its plan through collective bargaining with its employees’ union to adopt a more inclusive definition of marriage, most likely in response to the Supreme Court’s ruling last year in U.S. v. Windsor and the subsequent federal recognition of same-sex marriages.

Michael Hall and Amie Garrand are employees of BNSF Railway in the state of Washington, where voters approved a marriage equality law during the 2012 general election.  After that law went into effect, Hall married Elijah Uber on January 21, 2013, and sought to enroll him as a spouse under the BNSF health care plan.  BNSF and its plan administrator, United Healthcare, refused to enroll Uber.  Amie Garrand encountered the same problem after she married Carol Garrand.  The employer rejected repeated attempts by Hall and Garrand to persuade it that under Washington law their legally valid marriages were entitled to equal treatment.  Hall and Garrand have now enrolled their spouses, but brought suit seeking damages for the exclusionary period and an Order by the court determining that legally-married same-sex spouses living in a state that recognizes their marriage are entitled to equal treatment under employee benefits plans.

Hall and Garrand asserted claims under the federal Equal Pay Act, which forbids employers from discrimination in compensation and economic benefits because of the sex of an employee, the Employee Retirement Income Security Act (ERISA), which authorizes federal courts to entertain lawsuits by employees seeking benefits due to them under employee benefit plans, and Washington’s Law Against Discrimination, which forbids employment discrimination because of sex and sexual orientation.  Hall also added a claim under Title VII of the federal Civil Rights Act of 1964, which forbids sex discrimination in terms and conditions of employment.  The railroad moved to have all claims dismissed, arguing that the federal discrimination claims were invalid because federal law does not forbid sexual orientation discrimination, that the state law claim was preempted by ERISA, and that the ERISA claim was subject to an arbitration provision in the employee benefits plan and so could not be litigated in federal court. The railroad also argued that there was no need for prospective relief, since it had changed its plan to provide equal coverage for same-sex spouses through negotiations with the union.

Judge Martinez ruled against the railway on all of its assertions except arbitration, finding that the ERISA claim must be dismissed.

The key to Martinez’s ruling was his agreement with the plaintiffs that the employer’s action could be challenged as sex discrimination.    The railroad had argued that “Mr. Hall is really alleging a claim of discrimination based on his sexual orientation, not his sex, which cannot be maintained under Title VII.”

“While acknowledging that it is often difficult to distinguish sex discrimination claims by people identifying as homosexual from those claims based solely on alleged sexual orientation discrimination,” wrote the judge, “the Court disagrees with Defendant’s interpretation of the instant claims.”  Judge Martinez quoted from the factual allegations in Hall’s complaint to show that he was actually contending that he was subjected to discriminatory treatment because he was male.  Hall pointed out that had he married a woman his application would have been accepted, but that the railroad had refused to cover Elijah “based solely on the fact that Michael as male.”  That is, if Hall were a female employee who had married Elijah, his application to enroll his spouse would have been accepted without question.  He pointed out that BNSF employs female engineers (his job classification) and provides coverage for their male spouses.

Hall’s complaint concludes on this point, “The one man/one woman definition of spouse used by BNSF to limit its liability to cover spousal health benefits amounts to a BNSF policy to discriminate against Michael Hall simply because he is male; under this policy, if he were a female married to Elijah, the benefit would be paid.”

Or, as Judge Martinez put it in rejecting the motion to dismiss, “Plaintiff alleges disparate treatment based on his sex, not his sexual orientation, specifically that he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males.”

Martinez found support for this conclusion in a 2009 ruling by 9th Circuit Judge Stephen Reinhardt, who published an opinion upholding a similar claim for benefits by the same-sex partner of a male federal public defender.  In that opinion, rendered as part of an internal 9th Circuit grievance procedure, Judge Reinhardt relied alternatively on the circuit court’s own internal ban on both sex and sexual orientation discrimination.  Martinez noted a handful of other federal trial court rulings that could be construed to have accepted similar arguments.

“While the court makes no comment with respect to the validity of Plaintiff Hall’s Title VII claim in the instant matter,” wrote Martinez, “it does  find that Plaintiff has satisfied the initial burden of stating a claim that is plausible on its face.  Accordingly, the Court denies Defendant’s motion to dismiss the Title VII claim.”  Martinez found on similar grounds that he should deny the motion to dismiss the Equal Pay Act claims by Hall and Garrand.  He also rejected the railroad’s claim of ERISA preemption of the state law claim, since ERISA preempts state anti-discrimination laws only to the extent that they go beyond the protections of Title VII. Having found that Title VII could plausibly apply to this case, Martinez found the motion to dismiss the Washington state law claim to be premature.

However, the Railway Labor Act, which applies to employment disputes affecting this employer, read in conjunction with the ERISA claim, would mandate that the ERISA claim go to arbitration rather than litigation, so Judge Martinez granted the motion to dismiss the ERISA claim.  That shouldn’t make any difference to the plaintiffs, who are now free to pursue their Title VII, EPA and Washington state discrimination claims in the federal lawsuit.  They could also file a grievance with the plan administrator and seek arbitration of their ERISA claim.

Rejecting the railroad’s argument that its extension of benefits effectively mooted the plaintiffs’ claim for prospective relief, Martinez observed that the railroad appeared to “misconstrue” that claim.  “Plaintiffs seek, inter alia, an Order determining whether health benefit for same-sex spouses in states where same-sex marriage is legal are mandated under current law and directing Defendant to provide health benefits to such same-sex spouses as a matter of right in the future.”  Since the court had found the sex discrimination claims to be plausible, wrote Martinez, “the Court cannot find at this time that their claims for such prospective relief are moot.”

The plaintiffs are represented by Seattle attorneys Duncan Calvert Turner and Cleveland Stockmeyer, with amicus assistance from Lambda Legal and Lambda’s cooperating attorney in Seattle, Jennifer S. Devine.  Lambda Legal’s involvement in the case signals that this litigation is about more than just financial recompense for the plaintiffs.  The public interest firm is in it for a published court order on the ultimate question of whether employers can refuse to provide benefits coverage to legally-married same-sex couples.  Thus a settlement of the financial claims, which might be in the offing in light of the court’s ruling on the motion to dismiss, may not be enough to end this litigation.

Interestingly, just days after this ruling, Gay & Lesbian Advocates & Defenders filed a similar Title VII claim with the Equal Employment Opportunity Commission on behalf of a Walmart employee, Jacqueline Cote, who was denied spousal health insurance for her wife, Diana Smithson.  Cote and Smithson married in 2004 in Massachusetts, where Cote is an associate at a Walmart store in Swansea.  Walmart denied their application for coverage repeatedly from 2006 through 2012.  In 2013, reacting to the Windsor decision and federal recognition of legal same-sex marriages, Walmart announced that it would change its policy effective January 1, 2014, so now Smithson is enrolled in the plan. But Cote and Smithson accumulated over $100,000 in unpaid medical bills for treatment of Smithson for several problems, including ovarian cancer that required expensive chemotherapy, during the period when Walmart refused to cover Smithson, for which they are seeking compensation in their discrimination case.