Karnoski v. Trump

926 F.3d 1180

Ryan KARNOSKI; Cathrine Schmid, Staff Sergeant; D. L., fka K. G., by his next friend and mother, Laura Garza; 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 Defense; United States Department of Defense, Defendants-Appellants.

In re 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. 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. 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.

No. 18-35347

No. 18-72159

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2018 Portland, Oregon

Filed June 14, 2019

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.

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 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.

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.

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.

Petition for Writ of Mandamus

Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.

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 ...