On Friday, February 7, US District Judge Marsha Pechman issued yet another in a series of Orders on discovery in Karnoski v. Trump, 2020 U.S. Dist. LEXIS 21813 (W.D. Wash.), one of the four challenges to the constitutionality of Trump’s transgender military service ban in its current incarnation, referred to as the Mattis Plan.
Pechman, backed up by a 9th Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the 5th Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.
Since the Supreme Court stayed Judge Pechman’s preliminary injunction (and ultimately, all the preliminary injunctions were lifted), the Mattis Plan went into effect last April while the litigation continues, including clear discrimination against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a merits ruling against the government by stretching out discovery as long as possible.
The district courts have already determined that various deliberative process privilege claims asserted by the government are invalid in this suit, where the question boils down to whether the Mattis Plan is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But they keep stalling.
Judge Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” and a “stay pending appeal.” That is, they want to keep off responding as long as they can, and then get the court to delay further while they appeal every discovery ruling to the 9th Circuit, building in several more months for delay.
Pechman is having none of it: Her February 7 order provides some “clarification” and denies the stay. “Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.” She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.
Karnoski and co-plaintiffs are represented by Lambda Legal and Outserve-SLDN (so named when the case was filed, now the Modern Military Association).