Doe v. Trump
| Decision Date | 22 December 2017 |
| Docket Number | 1:17-cv-01597-CKK,No. 17-5267,17-5267 |
| Parties | Jane Doe 1, et al., Appellees v. Donald J. Trump, in his official capacity as President of the United States, et al., Appellants |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
BEFORE: Rogers, Tatel, and Millett, Circuit Judges
Upon consideration of the emergency motion for an administrative stay and partial stay pending appeal, the response thereto, and the reply; Citizens United, et al.'s motion for leave to file an amicus brief in support of Appellants, the lodged amicus brief; and the amicus brief of retired military officers and former national security officials in support of Appellees; and the Rule 28(j) letters, it is
ORDERED that the motion for leave to file an amicus brief in support of Appellants be granted. The Clerk is directed to file the lodged amicus brief. It is
FURTHER ORDERED that the emergency motion for an administrative stay and partial stay pending appeal be denied, as Appellants have not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2017).
At issue in this motion is the district court's decision to preliminarily enjoin Sections 1(b) and 2(a) of the August 25, 2017, Presidential Memorandum. When considering whether to grant a stay pending appeal, courts traditionally consider: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). "We review a district court decision regarding a preliminary injunction for abuse of discretion, and any underlying legal conclusions de novo." Katz v. Georgetown University, 246 F.3d 685, 688 (D.C. Cir. 2001) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)).
First, Appellants have not shown a strong likelihood that they will succeed on the merits of their challenge to the district court's order. As the district court explained, "the sheer breadth of the exclusion ordered by the [Memorandum], the unusual" and abrupt "circumstances surrounding the President's announcement of [the exclusion], the fact that the reasons given for [it] do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself," taken together, "strongly suggest that Plaintiffs' Fifth Amendment claim is meritorious." Memorandum Opinion Granting Preliminary Injunction, Doe 1 v. Trump, No. 17-1597, at 3 (Oct. 30, 2017) (Addendum (Add.) 14).
Appellants' argument that operation of the district court's injunction should be stayed is particularly flawed as to plaintiff Midshipman Regan Kibby and other transgender individuals who, like Midshipman Kibby, are enrolled in the United States Naval Academy, the United States Military Academy or the United States Air Force Academy. That is because Appellants explicitly do not seek a stay of that portion of the preliminary injunction enforcing the Retention Directive, which governs transgender individuals currently serving within the military. But under federal law, those individuals "serv[ing] as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy" are as a matter of statutory law on "active duty" and in the "active military, naval, or air service," 38 U.S.C. §§ 101(21)(D) & (24)(A); see also 38 U.S.C. § 1965(1)(D). In addition, federal law generally accords Cadets and Midshipmen the same process as other active duty personnel in the event the service moves to separate them for physical and/or medical reasons. See 10 U.S.C. §§ 1217-1218. Federal law identifies Midshipman and Cadet as a rank with its own pay rate, 37 U.S.C. § 203(c), and individuals attending the military academies are appointed by the President, inducted into the military, have a service obligation, swear an oath to protect and defend the United States, wear military uniforms, receive military pay and allowances, and are subject to the Uniform Code of Military Justice during their service. 10 U.S.C. §§ 801, 802, 4346, 6959; 37 U.S.C. §§ 203, 422. Cadets and Midshipmen may be awarded and wear the National DefenseService Medal, which is awarded for "honorable active service." SECNAVINST 1650.1H(8)(b)(1), (4) (emphasis added); see also 32 C.F.R. § 578.23(a) (2006); 10 U.S.C. § 6264 (eligibility for Navy and Marine Corps Medal). Because Appellants do not seek a stay of the retention provision of the preliminary injunction and, in arguing that Midshipman Kibby is subject to the Accession Directive, have failed to address federal statutes bearing on the active military status of Cadets and Midshipmen, Appellants have as yet offered no rational explanation for treating United States military academy Midshipmen and Cadets differently from those others on active duty who fall within the unchallenged (at this stage) Retention Directive. Granting a stay as to transgender individuals within the United States military academies would directly impede and impair their advancement through the Midshipman and Cadet ranks towards commissioning as officers and their current and immediate career and educational progression.
Second, Appellants have also failed to demonstrate that allowing the accession of transgender troops on January 1, 2018, will cause them irreparable harm. As the district court observed in declining to grant a stay, Appellants rely on "sweeping and conclusory statements" without "explain[ing] what precisely needs to be completed by [January 1, 2018,] in order for [Appellants] to be prepared to begin transgender accessions." Order Denying a Stay, Doe 1 v. Trump, No. 17-1597, at 5 (Dec. 11, 2017) (Add. 5). With respect to implementation of transgender accession into the military, Appellants did not even inform this court of a Defense Department memorandum issued December 8, 2017, that provides detailed directions and guidance governing "processing transgender applicants for military service," directions that the Secretary of Defense's Department commanded "shall remain in effect until expressly revoked." See Department of Defense, United States Military Entrance Processing Command, Policy Memorandum 2-5, Transgender Applicant Processing, at 1 (Dec. 8, 2017). That open-ended directive documenting concrete plans already in place to govern accession was issued before the district court ruled on the motion for a stay pending appeal.
Moreover, transgender people are already serving openly in the military. See DODI 1300.28(1.2)(a) (); ALNAV 053/16(2), (5)(a)(1)-(4), (7)(a)(5) (permitting transgender Sailors and Marines to serve openly, effective August 5, 2016). And Appellants have not shown that any training or medical demands associated with the accession of transgender troops—all of whom must be medically stable for 18 months before entry (absent a waiver)—are different in kind or degree from the demands associated with the retention of existing troops. Tothe extent Appellants argue that "[t]he preliminary injunction . . . harms the military by forcing it to implement a significant change to its accession standards before it even completes its study of the issue," Appellants' Mot. at 15, Appellants have failed to demonstrate that the study they wish to undertake is motivated by any necessity separate and apart from compliance with the Presidential Memorandum. Nor do they identify what further information is needed beyond the extensive study already undertaken and the steps already completed for the accession of transgender individuals. Appellants, in other words, have provided no non-conclusory factual basis or military justification for their apparent position that the extensive study already conducted prior to President...
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