U.S. Senior District Judge Marsha J. Pechman issued an opinion on June 15, rejecting another attempt by the Trump Administration to get her to lift her preliminary injunction in Karnoski v. Trump and allow the latest version of President Trump’s ban on military service by transgender individuals to go into effect while they appeal her earlier rulings to the 9th Circuit Court of Appeals. Hope springs eternal at the Justice Department, as their new motion does not really make any arguments that Judge Pechman did not reject in her earlier opinions. The new opinion in Karnoski v. Trump, 2018 U.S. Dist. LEXIS 100789 (W.D. Wash.), rejects the same arguments emphatically.
Last July, the President tweeted his declaration that transgender people would not be allowed to serve in the U.S. military in any capacity, purporting to reverse a policy on transgender service adopted by the Obama Administration and in effect since July 1, 2016. A month later the White House issued a memorandum setting out the President’s new policy in greater detail, including an implementation date in March 2018 and a permanent postponement of the January 1, 2018, date that had been set by Defense Secretary James Mattis last June for allowing transgender individuals to apply to join the service. Four lawsuits were filed by different groups of plaintiffs in District Courts in Washington, D.C., Baltimore, Seattle, and Riverside (California), challenging the constitutionality of the policy. All four federal district judges found that the plaintiffs were likely to win on the merits and issued preliminary injunctions intended to have national effect, forbidding implementation of the policy while the litigation proceeded. None of the district judges were willing to stay their injunctions pending appeal, and the D.C. and 4th Circuit Courts of Appeals also rejected motions to stay, at which point the Justice Department temporarily desisted from further appeals.
Meantime, Trump had ordered Mattis to come up with a written plan for implementation of the August Memorandum, to be submitted to the White House in February. After Mattis submitted his proposal, which departed in some particulars from the August Trump Memorandum, Trump “withdrew” his Memorandum and tweets and authorized Mattis to adopt his plan. The Justice Department then argued to Judge Pechman that her preliminary injunction should be lifted, because the policy at which it was directed was no longer on the table.
The judge concluded, however, in line with the plaintiff’s arguments, that the new policy was just a slightly modified version of the earlier policy, presenting the same constitutional flaws, so she refused to vacate her injunction. Instead, responding to motions for summary judgment, she ruled that the case should proceed to discovery and a potential hearing on contested fact issues. The Justice Department filed a notice of appeal to the 9th Circuit on April 30, and filed a motion with Judge Pechman seeking an expedited ruling on the plaintiffs’ motion for summary judgment so that it could be appealed. However, the judge declined to issue an expedited ruling, as discovery was supposed to take place and disputed facts might require a hearing to resolve. Discovery has been delayed by the Justice Department’s insistence that much of the information the plaintiffs seek is covered by Executive Privilege, a dubious claim at best. The Justice Department has filed a motion with the 9th Circuit asking it to stay the preliminary injunction pending appeal, but as of June 15 the 9th Circuit had not responded to the motion.
Judge Pechman’s June 15 opinion said that “each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance.” She pointed out that she was no more persuaded now than she had been previously by the argument that Mattis’s Implementation Plan was a “new and different” policy.
The Justice Department also argued that “the Ninth Circuit and/or this Court ultimately are highly likely to conclude that significant deference is appropriate,” but Judge Pechman responded, “whether any deference is due remains unresolved. Defendants bear the burden of providing a ‘genuine’ justification for the Ban. To withstand judicial scrutiny, that justification must ‘describe actual state purposes, not rationalizations’ and must not be ‘hypothesized or invented post hoc in response to litigation.’” To date,” she observed, “Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.”
She also pointed out that there are four nationwide preliminary injunctions in effect, not just hers. “As a practical matter,” she wrote, “Defendants face the challenge of convincing each of these courts to lift their injunctions before they may implement the Ban.”
The Justice Department also argued that failure to let the government implement the ban “will irreparably harm the government (and the public) by compelling the military to adhere to a policy it has concluded poses substantial risks.” But, Judge Pechman pointed out, at a hearing of the Senate Committee on Armed Services held after her injunction went into effect, both the Army Chief of Staff, General Mark Milley, and the Chief of Naval Operations, Admiral John Richardson, had testified that there were no problems with transgender people serving, as thousands are now doing. Milley testified that he “monitors very closely” the situation and had received “precisely zer”’ reports of problems related to unit cohesion, discipline and morale. Similarly, Admiral Richardson testified that he had received no negative reports, and that, in his experience, “it’s steady as she goes.”
The judge had already found that staying her injunction would likely cause irreparable injury to the plaintiffs, and that, in fact, “maintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.” She also rejected the Justice Department’s argument that her injunction should just apply to the nine individual transgender plaintiffs in the case, stating, “The Ban, like the Constitution, would apply nationwide. Accordingly, a nationwide injunction is appropriate.” And, she wrote, “The status quo shall remain ‘steady as she goes,’ and the preliminary injunction shall remain in full force and effect nationwide.”
The plaintiffs in the Karnoski case are represented by a small army of lawyers affiliated with Lambda Legal, Kirkland & Ellis (Chicago), Outserve-SLDN, and Seattle local counsel Newman & Du Wors LLP. The state of Washington, co-plaintiff in the case, is represented by attorneys from Kirkland & Ellis and the Washington Attorney General’s Office. Fifteen states and the District of Columbia, the Constitutional Accountability Center, and Legal Voice (formerly known as the Northwest Women’s Law Center) are also participating in this case as amicus on behalf of the plaintiffs.