Stone v. Trump

• Decision Date: 30 November 2018
• Docket Number: Civil Action No. GLR-17-2459
• Citation: 356 F.Supp.3d 505
• Parties: Brock STONE, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — District of Maryland

356 F.Supp.3d 505

Brock STONE, et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Civil Action No. GLR-17-2459

United States District Court, D. Maryland.

Signed November 30, 2018

Deborah A. Jeon, David Robert Rocah, American Civil Liberties Union of Maryland Foundation, Baltimore, MD, Marianne F. Kies, Augustus Golden, Pro Hac Vice, Carolyn Frances Corwin, Pro Hac Vice, Christopher Justin Hanson, Pro Hac Vice, David Meir Zionts, Pro Hac Vice, Jaclyn Elysse Martinez Resly, Pro Hac Vice, Jeffrey Todd Bozman, Pro Hac Vice, Joshua D. Roselman, Pro Hac Vice, Mark E. Neuman Lee, Pro Hac Vice, Peter John Komorowski, III, Thomas Ian Plotkin, Pro Hac Vice, Mark Henry Lynch, Covington and Burling LLP, Washington, DC, Chase Strangio, Pro Hac Vice, James Esseks, Pro Hac Vice, Joshua Block, Pro Hac Vice, Leslie Cooper, Pro Hac Vice, American Civil Liberties Union, New York, NY, Mitchell Kamin, Pro Hac Vice, Nicholas Monroe Lampros, Pro Hac Vice, Covington and Burling LLP, Los Angeles, CA, Sara Sunderland, Pro Hac Vice, Covington and Burling LLP, San Francisco, CA, for Plaintiffs.

Courtney D. Enlow, Pro Hac Vice, U.S. Department of Justice, Ryan Bradley Parker, United States Department of Justice Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

George L. Russell, III, United States District JudgeTHIS MATTER is before the Court on Defendants President Donald J. Trump, Secretary of Defense James Mattis, Secretary of the Army Mark Esper, Secretary of the Navy Richard Spencer, Secretary of the Air Force Heather Wilson, Secretary of Homeland Security Kirstjen Nielsen, and Commandant of the U.S. Coast Guard Paul Zukunft's Objections to the Magistrate Judge's Memorandum Opinion and Order (ECF No. 209) and Motion to Stay Compliance with the Magistrate Judge's Memorandum Order and Opinion (ECF No. 208). This case involves equal protection and substantive due process challenges to President Trump's policy banning transgender persons from serving in the military. The Objections and Motion to Stay are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons outlined below, the Court will overrule the Objections and grant the Motion to Stay.¹

I. BACKGROUND²

A. Factual Background

In 2016, the Department of Defense ("DOD"), after completing a thorough analysis of military costs, readiness, and other factors, concluded that "there was no basis for the military to exclude men and women who are transgender from openly serving their country, subject to the same fitness requirements as other service members." (2d Am. Compl. ¶ 5, ECF No. 148). Subsequently, the Secretary of Defense issued the Open Service Directive to permit transgender persons to serve openly starting July 1, 2017. (Id. ).

On July 26, 2017, however, President Trump published a series of Tweets³ stating, "[T]he United States Government will not accept or allow ... [t]ransgender individuals to serve in any capacity in the U.S. Military." (Id. ¶ 6). On August 25, 2017, President Trump issued a "Memorandum for the Secretary of Defense and the Secretary of Homeland Security" ("Transgender Service Member Ban"), which formalized the ban on transgender service members. (Id. ¶ 8). In addition, President Trump directed the Secretary of Defense to develop a plan for implementing the policy directives by February 21, 2018 (the "Implementation Plan"), with full implementation by March 23, 2018. (Id. ).

On September 14, 2017, the Secretary of Defense issued Terms of Reference for developing the Implementation Plan, which directed the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff to lead the development of the Implementation Plan and to convene a Panel of Experts from within DOD to conduct a study to inform the Implementation Plan. (Pls.' Cert. Conf. Counsel Ex. 20 at 2–3, ECF No. 177-24).⁴ In March 2018, the Secretary of Defense publically released the Implementation Plan, which: (1) prohibited transgender individuals who "require or have undergone gender transition" from serving in the military; and (2) permitted all other transgender individuals to serve "in their biological sex" as long as they do not have a history or diagnosis of gender dysphoria

. (2d Am. Compl. ¶ 11; Defs.' Mot. Dissolve Prelim. Inj. Ex. 1 at 2–3, ECF No. 120-1). These three policy directives: (1) the presidential Tweets; (2) the Transgender Service Member Ban; and (3) the Implementation Plan and related Panel of Experts, are at issue in this case.

On August 28, 2017, fourteen transgender individuals⁵ and the American Civil Liberties Union of Maryland, Inc. filed suit against Defendants. (ECF No. 1). Plaintiffs allege that President Trump's ban on transgender persons serving in the military violates: (1) the Equal Protection component of the Due Process Clause to the Fifth Amendment of the United States Constitution; (2) substantive due process; and (3) 10 U.S.C. § 1074 (2018), which entitles current and certain former members of the military to medical care. (Am. Compl. at 32, 36, 38, ECF No. 39).⁶

B. Procedural Background

On September 14, 2017, Plaintiffs filed a Motion for a Preliminary Injunction. (ECF No. 40). On October 12, 2017, Defendants filed a Motion to Dismiss and Opposition to Plaintiff's Motion for a Preliminary Injunction. (ECF No. 52). On November 21, 2017, this Court granted Plaintiffs' Motion for a Preliminary Injunction⁷ and Defendant's Motion to Dismiss the 10 U.S.C. § 1074 claim. (Nov. 21, 2018 Mem. & Order at 52–53, ECF No. 85).⁸

On May 4, 2018, the Court referred this case to a United States Magistrate Judge ("USMJ") for all discovery. (ECF No. 152). On June 15, 2018, Plaintiffs filed a Motion to Compel Supplemental Interrogatory Answers and Production. (ECF No. 177-1). In their Motion to Compel, Plaintiffs sought deliberative materials regarding: (1) President Trump's July 2017 Tweets and the Transgender Service Member Ban; (2) the DOD's Panel of Experts; and (3) the Implementation Plan and President Trump's acceptance of the Plan. (Pls.' Mot. Compel at 1, ECF No. 177-1). At the same time, Plaintiffs filed a Motion for a Judicial Determination of Privilege Claims (ECF No. 178 (sealed document) ) on a PowerPoint presentation that the Army inadvertently produced and Defendants sought to clawback on the theory that it, too, is protected by deliberative process privilege. (Defs.' Objs. Magistrate Judge's Mem. Op. & Order at 5, ECF No. 209). On June 18, 2018, Defendants filed a Motion for a Protective Order to preclude discovery directed at the President and other sources concerning presidential communications and deliberations. (ECF No. 179).⁹

On August 14, 2018, the USMJ issued a Memorandum Opinion and Order on these three Motions. (Aug. 14, 2018 Mem. Op. ["Mem. Op."], ECF No. 204; Aug. 14, 2018 Order, ECF No. 205). The USMJ granted Plaintiffs' Motion to Compel, dismissed Plaintiffs' Motion for a Judicial Determination of Privilege Claims as moot, and granted Defendants' Motion for a Protective Order as to the President, but denied the Protective Order as to others who communicate with the President. (Mem. Op. at 11; Aug. 14, 2018 Order ¶¶ 1–3). The USMJ granted Plaintiff's Motion to Compel because there were no justifiable reasons to stay discovery. (Mem. Op. at 4). In addition, applying In re Subpoena Duces Tecum Served on Office of Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998), the USMJ concluded that deliberative process privilege does not apply given that government intent "is at the very heart of this litigation." (Id. at 5–6). The USMJ dismissed Plaintiffs' Motion for Judicial Determination of Privilege Claims as moot because the USMJ determined that deliberative process privilege does not apply to Plaintiffs' discovery requests. (Id. at 11). Finally, balancing deference to the Executive with Plaintiffs' need for discovery, the USMJ granted Defendants' Motion for a Protective Order as to the President but not as to individuals with whom the President communicates. (Id. at 9–11).

Defendants now object to the USMJ's Memorandum Opinion and Order, and move to stay the Order. (ECF Nos. 208, 209). Plaintiffs filed an Opposition to Defendants' Motion to Stay on August 31, 2018. (ECF No. 211). Plaintiffs also filed an Opposition to Defendants' Objections to the USMJ's Order on September 14, 2018. (ECF No. 216). On September 28, 2018, Defendants filed a Reply. (ECF No. 221).

II. DISCUSSION

A. Objections to the Magistrate Judge's Order

1. Standard of Review

Under Federal Rule of Civil Procedure 72(a), a district court "must consider timely objections" to a USMJ's order on nondispositive, pretrial matters and "modify or set aside any part of the order that is clearly erroneous or is contrary to law." "The ‘clearly erroneous’ standard applies to factual findings, while legal conclusions will be rejected if they are ‘contrary to law.’ " Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F.Supp.3d 465, 479 (D. Md. 2014).

Under the clearly erroneous standard, the reviewing court does not ask whether a finding is "the best or only conclusion permissible based on the evidence." In re Subpoena of Am. Nurses Ass'n, No. 08-CV-0378, 2013 WL 5741242, at *1 (D. Md. Aug. 8, 2013) (quoting Huggins v. Prince George's Cty., 750 F.Supp.2d 549, 559 (D. Md. 2010) ). "Rather, the Court is ‘only required to determine whether the magistrate judge's findings are reasonable and supported by the evidence." Id. (quoting Huggins, 750 F.Supp.2d at 559 ). The Court will affirm findings of fact "unless [the Court's] review of the entire record leaves [it] with the definite and firm conviction that a mistake has been committed." Harman v. Levin, 772 F.2d 1150, 1153 (4th Cir. 1985) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ).

"The ‘contrary to law’ standard ordinarily suggests a plenary review of legal determinations, but many courts have noted that decisions of a...