Ryan Karnoski v. Donald Trump
926 F.3d 1180
9th Cir.2019Background
- In July–August 2017 President Trump announced and then issued a Memorandum that directed a return to pre-2016 policies restricting open military service by transgender persons (the "2017 Memorandum").
- Plaintiffs (transgender service members and organizations, joined by Washington State) sued, alleging the 2017 action violated the Fifth and First Amendments; the district court entered a nationwide preliminary injunction in December 2017 enjoining enforcement of the Ban.
- Secretary Mattis convened a DoD panel; in February 2018 DoD produced a 44‑page report and Mattis recommended a different policy (the "2018 Policy"); the President revoked the 2017 Memorandum and authorized implementation of the 2018 Policy in March 2018.
- Defendants moved in district court to dissolve the 2017 preliminary injunction as superseded by the 2018 Policy; the district court struck that motion and ordered discovery, including compelled production of documents withheld under deliberative‑process privilege; defendants sought appellate relief and mandamus.
- The Ninth Circuit vacated the district court’s order striking defendants’ motion to dissolve the injunction and remanded for reconsideration, stayed the injunction pending that reconsideration (consistent with the Supreme Court stay), and granted mandamus vacating the district court’s discovery order so the court must reexamine discovery with careful consideration of executive‑branch privileges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly struck Defendants’ motion to dissolve the 2017 preliminary injunction after adoption of the 2018 Policy | The 2018 Policy is functionally the same as the Ban; injunction remains necessary | The 2018 Policy is a materially different, military‑informed policy that supersedes the 2017 Memorandum and warrants reconsideration of the injunction | Vacated the striking order; 2018 Policy is a significant change and district court must reconsider whether dissolution is warranted (remand) |
| Proper level of constitutional scrutiny for classifications affecting transgender persons | Strict scrutiny: transgender is a suspect class and the Ban must meet the most exacting scrutiny | Deferential review/rational basis because this concerns military decisionmaking and, defendants say, medical conditions (gender dysphoria) rather than status | Applied something more than rational basis but less than strict scrutiny (intermediate/heightened standard informed by Witt), i.e., intermediate scrutiny with deference to military judgment |
| Degree of deference owed to military decisionmaking/record to be considered | Plaintiffs: little or no deference — decisions arose from presidential tweets and undisclosed deliberations | Defendants: deference owed because 2018 Policy resulted from DoD panel, report, and professional military judgment | Court: a presumption of deference is owed to the 2018 Policy on current record because it appears to be product of independent military judgment, but deference is not abdication—defendants must prove the policy reasonably furthers important interests |
| Scope of discovery and application of executive privileges (presidential communications and deliberative‑process) | Plaintiffs: need broad discovery into deliberations and communications to prove intent, waiver, and rebut deference; privilege claims are inadequate | Defendants: discovery into presidential and internal deliberations is subject to strong separation‑of‑powers limits and privileges; protective order required | Issued writ vacating district court discovery order; remanded for reconsideration under Cheney, In re Sealed Case, and Warner balancing—district court must explore alternatives, require a preliminary showing of need before pressing the President to invoke privilege, and apply careful, document‑by‑document privilege analysis |
Key Cases Cited
- Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367 (2004) (sets mandamus/privilege principles and advises courts to explore alternatives before forcing executive to invoke privilege)
- FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984) (deliberative‑process privilege balancing test factors)
- United States v. Nixon, 418 U.S. 683 (1974) (foundational recognition of presidential communications privilege and limits on executive secrecy)
- United States v. Virginia, 518 U.S. 515 (1996) (establishes more‑than‑rational‑basis review for classifications based on gender and prohibits post‑hoc justifications)
- Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) (adopts heightened/as‑applied review for sexual‑orientation/military cases and explains role of deference)
- Rostker v. Goldberg, 453 U.S. 57 (1981) (addresses deference to military and congressional choices in military affairs)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (standards for overcoming presidential communications privilege and in‑camera review)