Ryan Karnoski v. Donald Trump

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN KARNOSKI; CATHRINE No. 18-35347

SCHMID, Staff Sergeant; D. L.,

FKA K. G., by his next friend D.C. No.

and mother, LAURA GARZA; 2:17-cv-01297-MJP

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

2 KARNOSKI V. TRUMP

Defense; UNITED STATES

DEPARTMENT OF DEFENSE,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

IN RE DONALD J. TRUMP, in his No. 18-72159

official capacity as President of

the United States; UNITED D.C. No.

STATES OF AMERICA; PATRICK 2:17-cv-01297-MJP

M. SHANAHAN, in his official

capacity as Acting Secretary of

Defense; UNITED STATES OPINION

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.

KARNOSKI V. TRUMP 3

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.

Petition for Writ of Mandamus

Argued and Submitted October 10, 2018

Portland, Oregon

Filed June 14, 2019

4 KARNOSKI V. TRUMP

Before: Raymond C. Fisher, Richard R. Clifton,

and Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion

SUMMARY*

Civil Rights

In an action challenging a 2017 Presidential

Memorandum which barred transgender individuals from

serving in the military, the panel: (1) vacated the district

court’s order striking the defendants’ motion to dissolve a

2017 preliminary injunction that had stayed enforcement, and

remanded to the district court to reconsider the motion; (2)

stayed the 2017 preliminary injunction through the district

court’s further consideration of defendants’ motion to

dissolve the injunction; and (3) issued a writ of mandamus

vacating the district court’s discovery order and directing the

district court to reconsider discovery by giving careful

consideration to executive branch privileges.

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

brought suit alleging that the Twitter Announcement and

2017 Memorandum unconstitutionally discriminated against

transgender individuals. The district court issued a

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KARNOSKI V. TRUMP 5

preliminary injunction against enforcement of the 2017

Memorandum, essentially holding that it was not a considered

military judgment that warranted deference. In March 2018,

the President revoked the 2017 Memorandum and authorized

then-Secretary of Defense James Mattis to implement a

policy, based on a 44-page report, which addressed a medical

condition, gender dysphoria, rather than transgender status.

Defendants then asked the district court to dissolve the 2017

preliminary injunction on the basis that the 2018 Policy was

a new policy to be evaluated on its own merit. The district

court struck the motion to dissolve.

In vacating the district court’s order striking defendants’

motion to dissolve the 2017 preliminary injunction, the panel

held that the 2018 Policy was significantly different from the

2017 Memorandum in both its creation and its specific

provisions and therefore defendant had made the requisite

threshold showing of a significant change of facts. The panel

therefore remanded for the district court to address whether

the change warranted dissolution of the 2017 preliminary

injunction.

In determining what level of scrutiny the district court

should apply on remand, the panel concluded that the 2018

Policy on its face treated transgender persons differently than

other persons, and consequently something more than rational

basis but less than strict scrutiny applied to the military’s

decisionmaking. The panel further concluded that on the

current record, a presumption of deference was owed to the

decisionmaking because the 2018 Policy appeared to have

been the product of independent military judgment, and

therefore the district court could not substitute its own

evaluation of evidence for a reasonable evaluation by the

military. The panel further stayed the 2017 preliminary

6 KARNOSKI V. TRUMP

injunction consistent with the Supreme Court’s order of

January 22, 2019, which had stayed the preliminary

injunction pending appeal in the Ninth Circuit. The panel

stated that should the district court deny the motion to

dissolve the injunction, the stay would remain in place

throughout this Court’s disposition of any appeal by the

Government.

The panel issued a writ of mandamus vacating the district

court’s discovery order which had granted plaintiffs’ motion

to compel discovery of government documents. The panel

held that the executive privileges—the presidential

communications privilege and deliberative process

privilege—although not absolute, required careful

consideration by the judiciary, even when they have not been

clearly or persuasively raised by the government. The panel

held that in its further considerations of plaintiffs’ discovery

requests, the district court should give careful consideration

to executive branch privileges as set forth in Cheney v. U.S.

District Court for the District of Columbia, 542 U.S. 367

(2004), and FTC v. Warner Communications Inc., 742 F.2d

1156 (9th Cir. 1984).

COUNSEL

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.

KARNOSKI V. TRUMP 7

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

8 KARNOSKI V. TRUMP

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.

KARNOSKI V. TRUMP 9

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.

10 KARNOSKI V. TRUMP

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.

KARNOSKI V. TRUMP 11

OPINION

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 March 23, 2018,

revoked his 2017 Memorandum and authorized Secretary

Mattis to implement the policies he proposed based on the 44-

page report (these are sometimes referred to collectively as

the “2018 Policy”).

Defendants then requested that the district court dissolve

its preliminary injunction on the basis that the 2018 Policy

12 KARNOSKI V. TRUMP

was a new policy that had to be evaluated on its own merit.

Defendants asserted that the 2018 Policy addressed a medical

condition, gender dysphoria, rather than transgender status.

The district court struck the motion to dissolve the injunction.

Defendants filed this appeal from that order.

Proceedings continued in the district court. On April 19,

2018, the district court struck Defendants’ motion for a

protective order precluding discovery pending the resolution

of Defendants’ appeal. On July 27, 2018, the district court

issued an order denying Defendants’ motion for a protective

order of discovery directed at President Trump and granting

Plaintiffs’ motion to compel the production of documents

withheld solely under the deliberative process privilege

within ten days. Defendants filed a petition for writ of

mandamus with this Court challenging the discovery order.

Subsequent orders have stayed further discovery until after

we decide the petition.

We vacate the district court’s order striking the

Defendants’ motion to dissolve the preliminary injunction

and we remand to the district court to reconsider the motion.

In light of the Supreme Court’s January 22, 2019 stay of the

district court’s preliminary injunction, we stay the

preliminary injunction through the district court’s further

consideration of Defendants’ motion to dissolve the

injunction. In addition, we issue a writ vacating the district

court’s discovery order and directing the district court to

reconsider discovery by giving careful consideration to

executive branch privileges as set forth in Cheney v. U.S.

District Court for the District of Columbia, 542 U.S. 367

(2004), and FTC v. Warner Communications Inc., 742 F.2d

1156 (9th Cir. 1984).

KARNOSKI V. TRUMP 13

I

A. Background

Historically, transgender individuals could not serve

openly in the military.1 In August 2014, the Department of

Defense (“DoD”) eliminated its categorical ban on retention

of transgender service members, enabling each branch of the

military to reassess its own policies. In 2015, then-Secretary

of Defense Ashton Carter created a working group to study

the policy and readiness implications of allowing transgender

individuals to serve in the military. Secretary Carter

instructed the working group to “start with the presumption

that transgender persons can serve openly without adverse

impact on military effectiveness and readiness, unless and

except where objective, practical impediments are identified.”

As part of this review, the RAND National Defense Research

1

Although most people have a gender identity that matches their sex

assigned at birth, this is not the case for transgender people, who identify

as transgender because their gender identity does not match their birth-

assigned sex. In some instances, the discordance between one’s gender

identity and birth-assigned sex can be associated with clinically significant

distress, known as gender dysphoria. Living in a manner consistent with

one’s gender identity is a key aspect of treatment for gender dysphoria.

See Br. Amicus Curiae Am. Med. Ass’n et al. at 10–11. The process

whereby transgender individuals come to live in a manner consistent with

their gender identity, rather than their birth-assigned sex, is known as

transition. Transition is “[t]he process that people go through as they

change their gender expression and/or physical appearance (e.g., through

hormones and/or surgery) to align with their gender identity. A transition

may occur over a period of time, and may involve coming out to family,

friends, co-workers, and others; changing one’s name and/or sex

designation on legal documents (e.g., drivers’ licenses, birth certificates);

and/or medical intervention.” Glossary of Gender and Transgender

Terms, Fenway Health 4 (Jan. 2010 Revision).

14 KARNOSKI V. TRUMP

Institute was commissioned to conduct a study and issue a

report of its findings (the “RAND Report”).2 The RAND

Report concluded that health care for transgender service

members would be a “very small part of the total health care”

provided to service members and estimated the impact on the

military’s readiness from accepting transgender individuals

would be “negligible.”

Following the issuance of the RAND Report, Secretary

Carter in June 2016 ordered the armed forces to adopt a new

policy on military service by transgender individuals (the

“Carter Policy”). The policy provided that “transgender

individuals shall be allowed to serve [openly] in the military

. . . while being subject to the same standards and procedures

as other members with regard to their medical fitness for

duty, physical fitness, uniform and grooming, deployability,

and retention.”

On June 30, 2017, Secretary Mattis deferred accessing

transgender applicants into the military until January 1,

2018.3 The announcement stated that the armed forces “will

review their accession plans and provide input on the impact

to the readiness and lethality of our forces.”

2

RAND was “to conduct a study to (1) identify the health care needs

of the transgender population, transgender service members’ potential

health care utilization rates, and the costs associated with extending health

care coverage for transition-related treatments; (2) assess the potential

readiness implications of allowing transgender service members to serve

openly; and (3) review the experiences of foreign militaries that permit

transgender service members to serve openly.”

3

Broadly speaking, “accession” refers to enlisting in the military.

KARNOSKI V. TRUMP 15

1. The July 26, 2017 Twitter Announcement

On July 26, 2017, President Trump announced over

Twitter that the United States would no longer accept or

allow transgender people to serve in the military:

After consultation with my Generals and

military experts, please be advised that the

United States Government will not accept or

allow Transgender individuals to serve in any

capacity in the U.S. Military. Our military

must be focused on decisive and

overwhelming victory and cannot be burdened

with the tremendous medical costs and

disruption that transgender in the military

would entail. Thank you.

This is sometimes referred to as the “Twitter

Announcement.”

2. The August 25, 2017 Presidential Memorandum

The Twitter Announcement was followed on August 25,

2017, by a Presidential Memorandum (the “2017

Memorandum,” and collectively with the Twitter

Announcement, sometimes referred to as “the Ban”). The

2017 Memorandum noted that until June 2016, the DoD and

the Department of Homeland Security (“DHS”) “generally

prohibited openly transgender individuals from accession into

the United States military and authorized the discharge of

such individuals.” The 2017 Memorandum noted that

Secretary Carter had revised those policies in 2016, but it

expressed the view that Secretary Carter had “failed to

identify a sufficient basis to conclude that terminating the

16 KARNOSKI V. TRUMP

Departments’ longstanding policy and practice would not

hinder military effectiveness and lethality, disrupt unit

cohesion, or tax military resources.”

The 2017 Memorandum “direct[ed] the Secretary of

Defense, and the Secretary of Homeland Security with

respect to the U.S. Coast Guard, to return to the longstanding

policy and practice on military service by transgender

individuals that was in place prior to June 2016 until such

time as a sufficient basis exists upon which to conclude that

terminating that policy and practice would not . . . . hinder

military effectiveness and lethality, disrupt unit cohesion, or

tax military resources.”

Specifically, the 2017 Memorandum directed the

Departments to “maintain the [pre-2016] policy regarding

accession of transgender individuals into military service,”

and to “halt all use of DoD or DHS resources to fund

sex-reassignment surgical procedures for military

personnel.”4 It directed the Secretary of Defense, in

consultation with the Secretary of Homeland Security, to

submit “a plan for implementing” the general policy and the

specific directives of the 2017 Memorandum by February 21,

2018. It provided that, “[a]s part of the implementation plan,

the Secretary of Defense, in consultation with the Secretary

of Homeland Security, shall determine how to address

4

The district court stated that the 2017 Memorandum authorized:

the discharge of openly transgender service members

(the “Retention Directive”); prohibited the accession of

openly transgender service members (the “Accession

Directive”); and prohibited the use of [DoD] and [DHS]

resources to fund “sex reassignment” surgical

procedures (the “Medical Care Directive”).

KARNOSKI V. TRUMP 17

transgender individuals currently serving in the United States

military,” but stated that, “[u]ntil the Secretary has made that

determination, no action may be taken against such

individuals under the policy [mandating a return to the pre-

2016 policy].”5

3. The Complaint

Following the Twitter Announcement and the 2017

Memorandum, a complaint was filed in the District Court for

the Western District of Washington. Shortly thereafter,

Plaintiffs filed an amended complaint, which is the most

recent statement of Plaintiffs’ claims. The amended

complaint alleges that the policy adopted through the Twitter

Announcement and the 2017 Memorandum discriminates

against transgender people regarding military service in

violation of the equal protection and substantive due process

guarantees of the Fifth Amendment and the free speech

guarantee of the First Amendment of the U.S. Constitution.

Plaintiffs included nine individuals, three organizations,

and, as intervenor, the State of Washington. Plaintiff Ryan

Karnoski, for example, is a transgender man who holds a

master’s degree in social work, works as a mental health

technician, comes from a family with a history of military

service, and aspires to serve as an officer in the military. His

desire to join the military came into sharper focus following

the death of his cousin, who was killed in action in

Afghanistan in 2009. He would like to join the military but

5

The 2017 Memorandum also provided that “[t]he Secretary of

Defense, after consulting with the Secretary of Homeland Security, may

advise me at any time, in writing, that a change to this policy is

warranted.”

18 KARNOSKI V. TRUMP

is prohibited from doing so because of his transgender status.

Plaintiff Staff Sergeant Cathrine Schmid is a transgender

woman who was diagnosed with gender dysphoria in 2013.

She joined the Army in 2005, has received numerous awards

and decorations for her service, and currently serves as a

Signals Intelligence Analyst. She serves openly as a woman,

and she is recognized and treated as female in all aspects of

military life. In June 2017, Staff Sergeant Schmid submitted

an application to become an Army warrant officer, but her

application was placed on hold in light of her transgender

status.

4. Secretary Mattis’ September 2017 Interim

Guidance

On September 14, 2017, Secretary Mattis acknowledged

receipt of the 2017 Memorandum and promised to “present

the President with a plan to implement the policy and

directives in the Presidential Memorandum” no later than

February 21, 2018. Secretary Mattis also issued “Interim

Guidance” to take effect immediately and remain in effect

pending promulgation of a final policy. The Interim

Guidance provided that the pre-2016 policies prohibiting the

accession of transgender individuals into the military would

remain in effect and that no new sex reassignment surgical

procedures for military personnel would be permitted after

March 22, 2018. It further provided that “no action may be

taken to involuntarily separate or discharge an otherwise

qualified Service member solely on the basis of a gender

dysphoria diagnosis or transgender status” during the interim

period.

KARNOSKI V. TRUMP 19

5. Secretary Mattis’ Creation of a Panel to Develop

the Implementation Plan

On the same day that Secretary Mattis issued the Interim

Guidance, he directed “the Deputy Secretary of Defense and

the Vice Chairman of the Joint Chiefs of Staff to lead the

[DoD] in developing an Implementation Plan on military

service by transgender individuals, to effect the policy and

directives in [the] Presidential Memorandum.” The

Implementation Plan was to “establish the policy, standards

and procedures for service by transgender individuals in the

military, consistent with military readiness, lethality,

deployability, budgetary constraints, and applicable law.”

The Deputy Secretary of Defense and Vice Chairman of the

Joint Chiefs of Staff were to be supported by “a panel of

experts drawn from [the] DoD and [DHS],” consisting of

“senior uniformed and civilian Defense Department and U.S.

Coast Guard leaders” and “combat veterans.” Secretary

Mattis directed this panel to “bring a comprehensive, holistic,

and objective approach to study military service by

transgender individuals, focusing on military readiness,

lethality, and unit cohesion, with due regard for budgetary

constraints and consistent with applicable law.”

6. The December 11, 2017 Preliminary Injunction

On December 11, 2017, the district court issued a

nationwide preliminary injunction enjoining Defendants from

“taking any action relative to transgender people that is

inconsistent with the status quo that existed prior to President

20 KARNOSKI V. TRUMP

Trump’s July 26, 2017 announcement.”6 Defendants filed an

appeal from the preliminary injunction, but subsequently

moved to voluntarily dismiss their appeal.7

7. The February 2018 Defense Department Report

The panel created by Secretary Mattis met 13 times over

a period of 90 days. Secretary Mattis reported that the panel:

met with and received input from transgender

Service members, commanders of transgender

Service members, military medical

professionals, and civilian medical

6

Three other district courts also issued preliminary injunctions

against the Ban. Doe 1 v. Trump, 275 F. Supp. 3d 167, 177 (D.D.C. 2017)

(on October 30, 2017, preliminarily enjoining enforcement of the

Accession and Retention Directives); Stone v. Trump, 280 F. Supp. 3d

747, 769 (D. Md. 2017) (on November 21, 2017, enjoining “the

enforcement of the Retention, Accession, and Sex Reassignment Surgical

Directives pending the final resolution of this lawsuit”); Stockman v.

Trump, No. EDCV 17-1799, 2017 WL 9732572, at *16 (C.D. Cal. Dec.

22, 2017) (on December 22, 2017, enjoining the Accession, Retention, and

Sex Reassignment Surgery Directives until the litigation is resolved).

The preliminary injunction in Doe 1 was vacated on January 4, 2019.

Doe 2 v. Shanahan, 755 F.App’x 19 (D.C. Cir. 2019). On January 22,

2019, the Supreme Court stayed the preliminary injunctions issued in this

case and in Stockman. Trump v. Karnoski, 139 S. Ct. 950 (2019); Trump

v. Stockman, 139 S. Ct. 950 (2019).

7

Defendants’ appeal was docketed on December 15, 2017, along

with an emergency motion for a stay pending appeal. On December 29,

Defendants notified the Ninth Circuit that they were withdrawing the

motion for stay pending appeal and voluntarily dismissing the appeal from

the preliminary injunction. On December 30, we granted the motion for

voluntary dismissal.

KARNOSKI V. TRUMP 21

professionals with experience in the care and

treatment of individuals with gender

dysphoria. The [p]anel also reviewed

available information on gender dysphoria,

the treatment of gender dysphoria, and the

effects of currently serving individuals with

gender dysphoria on military effectiveness,

unit cohesion, and resources. Unlike previous

reviews on military service by transgender

individuals, the [p]anel’s analysis was

informed by the Department’s own data

obtained since the [Carter Policy] began to

take effect last year.

In February 2018, the Department of Defense produced a 44-

page report based on the panel’s work (“the 2018 Report”).

8. Secretary Mattis’ February 22, 2018

Memorandum

Secretary Mattis forwarded the 2018 Report to the

President accompanied by a memorandum dated February 22,

2018 (the “Mattis Memorandum”). Secretary Mattis, citing

the panel’s work and his professional judgment,

recommended that the President adopt the following policies:

* Transgender persons with a history or

diagnosis of gender dysphoria are

disqualified from military service, except

under the following limited

circumstances: (1) if they have been stable

for 36 consecutive months in their

biological sex prior to accession;

(2) Service members diagnosed with

22 KARNOSKI V. TRUMP

gender dysphoria after entering into

service may be retained if they do not

require a change of gender and remain

deployable within applicable retention

standards; and (3) currently serving

Service members who have been

diagnosed with gender dysphoria since the

previous administration’s policy took

effect and prior to the effective date of

this new policy, may continue to serve in

their preferred gender and receive

medically necessary treatment for gender

dysphoria.

* Transgender persons who require or have

undergone gender transition are

disqualified from military service.

* Transgender persons without a history or

diagnosis of gender dysphoria, who are

otherwise qualified for service, may serve,

like all other Service members, in their

biological sex.

Secretary Mattis further recommended that the President

revoke the 2017 Memorandum in order to allow the adoption

of these proposed policies.

9. The March 23, 2018 Presidential Memorandum

On March 23, 2018, the President accepted Secretary

Mattis’s recommendation, revoked the 2017 Memorandum,

and authorized the implementation of “any appropriate

KARNOSKI V. TRUMP 23

policies concerning military service by transgender

individuals.”

B. The District Court’s April 13, 2018 Order

In the meantime, cross-motions for summary judgment

and partial summary judgment had been filed in the district

court. The 2018 Policy issued days before the motions were

to be heard, and the district court immediately requested

supplemental briefs from the parties. In addition, Defendants

moved to dissolve the December 11, 2017 preliminary

injunction on the ground that the 2017 Memorandum had

been supplanted by the 2018 Policy.

On April 13, 2018, the district court granted in part and

denied in part the cross-motions for summary judgment. The

district court first determined that the 2018 Policy had not

rendered Plaintiffs’ challenges moot. It observed that the

burden of demonstrating mootness “is a heavy one,” citing

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

The district court found “that the 2018 Memorandum and the

Implementation Plan do not substantively rescind or revoke

the Ban, but instead threaten the very same violations that

caused it and other courts to enjoin the Ban in the first

place.”8

8

The district court rejected Defendants’ assertion that Plaintiffs

lacked standing because the 2018 Policy had significantly changed the

analysis. Specifically, the district court opined that even if each of the

individual plaintiffs serving in the armed forces came within the reliance

exception, they would still have standing because “the Ban already has

denied them the opportunity to serve in the military on the same terms as

others; has deprived them of dignity; and has subjected them to

stigmatization.” The district court determined that Washington had

standing because the Ban diminished the number of eligible members for

24 KARNOSKI V. TRUMP

Addressing Plaintiffs’ constitutional claims, the district

court concluded that transgender individuals constitute a

suspect class and “that the Ban must satisfy the most exacting

level of scrutiny if it is to survive.” The district court

identified four relevant factors for determining whether a

classification was suspect or quasi-suspect: (1) whether as a

historical matter the class was subject to discrimination;

(2) whether the class has a defining characteristic that

frequently bears a relationship to its ability to perform or its

contribution to society; (3) whether the class exhibits obvious

immutable or distinguishing characteristics that define it as a

discrete group; and (4) whether the class is a minority or is

politically powerless.9 The district court noted that “courts

have consistently found that transgender people constitute, at

minimum, a quasi-suspect class,” but applying these factors,

the district court further concluded that transgender people

constitute a suspect class.

Turning to the question of deference, the district court

started with its previous determination that the Ban was not

owed deference because it was not supported by any evidence

of considered reason or deliberation. The district court noted,

however, that because “the specifics of the Ban have been

further defined in the 2018 Memorandum and the

Implementation Plan, whether the Court owes deference to

the National Guard and threatened “Washington’s ability to (1) protect its

residents and natural resources in times of emergency and (2) ‘assur[e] its

residents that it will act’ to protect them from ‘the political, social and

moral damage of discrimination.’”

9

The district court cited Bowen v. Gillard, 483 U.S. 587, 602 (1987),

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440–41

(1989), and Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012),

aff’d on other grounds, 570 U.S. 744 (2013).

KARNOSKI V. TRUMP 25

the Ban presents a more complicated question.” The district

court explained that: (1) any justification for the Ban must be

“genuine, not hypothesized or invented post hoc in response

to litigation” (quoting United States v. Virginia, 518 U.S. 515,

533 (1996)); (2) the “complex[,] subtle and professional

decisions as to the composition . . . and control of a military

force are essentially professional military judgments”

(quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)); and

(3) its “entry of a preliminary injunction was not intended

to prevent the military from continuing to review the

implications of open service by transgender people, nor to

preclude it from ever modifying the Carter Policy.” The

district court further noted that Defendants asserted that the

2018 Policy was the product of deliberative review and

entitled to deference.

However, the district court declined to grant Defendants

relief on the question of deference, noting that: (1) the 2018

Policy, including the 2018 Report, raised unresolved

questions of fact; (2) the Implementation Plan was not

disclosed until March 29, 2018; and (3) Plaintiffs had not had

an opportunity to test or respond to the claims in the 2018

Policy. The district court concluded that on the present

record, it “cannot determine whether the DoD’s deliberative

process—including the timing and thoroughness of its study

and the soundness of the medical and other evidence it relied

upon—is of the type to which Courts typically should defer.”

Accordingly, the district court denied “summary judgment as

to the level of deference due.”

The district court proceeded to hold that, for the same

reasons it could not grant summary judgment as to the level

of deference, it could not reach the merits of the

constitutional violations alleged by Plaintiffs. It therefore

26 KARNOSKI V. TRUMP

denied their request for summary judgment on their equal

protection, due process, and First Amendment claims.

The district court also addressed Defendants’ contention

that the district court was without jurisdiction to impose

injunctive or declaratory relief against the President in his

official capacity. The district court granted Defendants’

motion for partial summary judgment with regard to

injunctive relief and denied it with regard to declaratory

relief. It opined that this was an appropriate instance for

declaratory relief.10

The district court did not rule on the merits of

Defendants’ motion to dissolve the preliminary injunction,

and instead ordered the motion stricken. It stated:

The preliminary injunction previously entered

otherwise remains in full force and effect.

Defendants (with the exception of President

Trump), their officers, agents, servants,

employees, and attorneys, and any other

person or entity subject to their control or

acting directly or indirectly in concert or

participation with Defendants are enjoined

10

The district court cited Clinton v. City of New York, 524 U.S. 417,

425 n.9 (1998) (affirming entry of declaratory judgment against President

Clinton stating that the Line Item Veto Act was unconstitutional), Hawaii

v. Trump, 859 F.3d 741, 788 (9th Cir. 2017) (vacating injunctive relief

against President Trump, but not dismissing him in suit for declaratory

relief), vacated as moot, 138 S. Ct. 377 (2017), and National Treasury

Employees Union v. Nixon, 492 F.2d 587, 609 (D.C. Cir. 1974) (noting

that “no immunity established under any case known to this Court bars

every suit against the President for injunctive, declaratory or mandamus

relief”).

KARNOSKI V. TRUMP 27

from taking any action relative to transgender

people that is inconsistent with the status quo

that existed prior to President Trump’s July

26, 2017 announcement.

The order directed the parties to proceed with discovery and

to prepare for trial. Defendants appeal from the district

court’s order striking their motion to dissolve the preliminary

injunction.11

C. The District Court’s July 27, 2018 Discovery

Order

In December 2017, Plaintiffs served Defendants with their

first set of interrogatories. For example, they requested that

Defendants “[i]dentify and describe each of the governmental

purposes or interests that you contend will be advanced by the

Policy,” and “[i]dentify all individuals with whom President

Trump has discussed or corresponded with regarding the

United States’ past, present, or potential future governmental

policies on transgender military service or related healthcare,

and the dates of each discussion, from November 9, 2016 to

the present.” Plaintiffs also served Defendants with requests

for the production of documents.

11

Defendants filed a motion in the Ninth Circuit to stay the

preliminary injunction pending appeal. A three-judge motions panel of

the Ninth Circuit denied the motion, noting that “a stay of the preliminary

injunction would upend, rather than preserve, the status quo.” On January

22, 2019, the Supreme Court granted a stay of the district court’s

preliminary injunction “pending disposition of the Government’s appeal

in the United States Court of Appeals for the Ninth Circuit and disposition

of the Government’s petition for a writ of certiorari, if such writ is

sought.” Trump v. Karnoski, 139 S. Ct. 950 (2019).

28 KARNOSKI V. TRUMP

Defendants filed objections to the interrogatories and the

requests for production. Among other things, Defendants’

objected to the interrogatories to the extent that they sought

“communications or information protected by the deliberative

process privilege; [and] . . . communications or information

protected by the presidential communications privilege.”

Defendants argued that in Cheney, 542 U.S. at 385, the

Supreme Court “made clear that discovery directed to the

President in civil litigation raises significant separation of

powers concerns and should be strictly circumscribed.” In

response, Plaintiffs argued that the deliberative process

privilege and presidential communications privilege did not

bar discovery.

Plaintiffs filed a motion to compel discovery charging

that Defendants’ initial disclosures were “manifestly

inadequate.” After briefing, on March 4, 2018, the district

court granted Plaintiffs’ motion to compel and found that

Defendants’ initial disclosures did not provide “any actual

information concerning Defendants’ claims or defenses.”

On March 23, 2018, Defendants filed another motion for

a protective order asserting that: (1) the challenge to the 2017

Memorandum was moot because the President had withdrawn

the 2017 Memorandum; (2) “[f]urther litigation should be

confined to the administrative record provided by the

agency”; and (3) “[a] protective order would serve the

interests of judicial economy because the Court could avoid

addressing constitutional separation-of-powers issues.”

On April 19, 2018, the district court denied Defendants’

motion for a protective order. The district court found that,

in light of its April 13, 2018 order, see supra Section I (B), a

protective order was not warranted. The district court stated

KARNOSKI V. TRUMP 29

that the case was not moot, discovery related to the Twitter

Announcement was not irrelevant, and the 2018 Policy was

not a new policy, “but rather a plan to implement, with few

exceptions, the directives of the 2017 Memorandum.” The

district court held that there was no reason for discovery to be

confined to the administrative record because Plaintiffs were

not challenging the 2018 Policy under the Administrative

Procedure Act, but instead raised direct constitutional claims.

The district court stated that “Defendants have not

demonstrated that precluding discovery will serve the interest

of judicial economy in any way.” The order concluded:

To the extent that Defendants intend to claim

Executive privilege, they must “expressly

make the claim” and provide a privilege log

“describ[ing] the nature of the documents,

communications, or tangible things not

produced or disclosed—and do so in a manner

that, without revealing information itself

privileged or protected, will enable other

parties to assess the claim.” Fed. R. Civ. P.

26(b)(5)(i)–(ii).

In response to Plaintiffs’ interrogatories and requests for

production, Defendants produced a number of privilege logs,

but asserted the deliberative process privilege as the sole

basis for withholding or redacting approximately 15,000

documents.

On May 10, 2018, Plaintiffs filed a motion to compel

discovery of documents withheld solely under the

deliberative process privilege, advancing four arguments.

First, they argued that the deliberative process privilege was

fashioned to prevent discovery into governmental

30 KARNOSKI V. TRUMP

deliberations when the governmental decisionmaking process

is collateral to a lawsuit, but does not apply where, as here,

“plaintiffs challenge the constitutionality of a government

decision and allege animus or discriminatory intent,” citing

In re Subpoena Duces Tecum Served on the Office of the

Comptroller of the Currency, 145 F.3d 1422, 1424 (D.C. Cir.

1998). Plaintiffs asserted that Defendants’ deliberations go

to the heart of this lawsuit. Second, Plaintiffs contended that

Defendants waived any privilege by putting their deliberative

process at issue – i.e., “by asserting that the Ban passes

constitutional review because special deference is owed to

their military judgment.” Third, Plaintiffs argued that even

if the privilege applied, their need for discovery prevailed

under the applicable balancing test.12 Fourth, Plaintiffs

argued that Defendants withheld materials that fell outside

the scope of the privilege. In particular, Plaintiffs asserted

that the deliberative process privilege (a) only applies to

documents that are “predecisional”—that is “they have been

generated prior to an agency’s adoption of a policy or

decision”; (b) “only applies to documents that are

‘deliberative’ in that they reflect the give-and-take of a

deliberative decision-making process”; and (c) “does not

12

Plaintiffs, citing FTC v. Warner Communications Inc., 742 F.2d

1156, 1161 (9th Cir. 1984), and North Pacifica, LLC v. City of Pacifica,

274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003), listed eight considerations

that the court should balance: (1) the relevance of the evidence; (2) the

availability of other evidence; (3) the government’s role in the litigation;

(4) the extent to which disclosure would hinder frank and independent

discussion regarding contemplated policies and decisions; (5) the interest

of the litigant, and ultimately society, in accurate judicial fact finding; (6)

the seriousness of the litigation and the issues involved; (7) the presence

of issues concerning alleged governmental misconduct; and (8) the federal

interest in the enforcement of federal law.

KARNOSKI V. TRUMP 31

extend to purely factual information or expert opinion and

scientific conclusions regarding facts.”

Defendants opposed the motion to compel, arguing that

Plaintiffs challenged only the 2017 Memorandum and did not

amend their complaint to challenge the 2018 Policy.

Specifically, Defendants argued that the deliberative process

privilege protects the government’s decision-making process

by shielding documents “reflecting advisory opinions,

recommendations and deliberations comprising part of a

process by which governmental decisions and policies are

formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

150 (1975) (quoting Carl Zeiss Stiftung v. V. E. B. Carl Zeiss,

Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)); Defendants

asserted that the deliberative process privilege applies to this

case and that the Ninth Circuit has applied the balancing test

set forth in Warner, 742 F.2d 1156. Defendants further

contended that events occurring after the 2017 Twitter

Announcement remained subject to the deliberative process

privilege. They noted that the 2017 Memorandum

contemplated further research, further determinations by the

Secretary of Defense, and further recommendations to the

President.

The parties conferred over the discovery requests, but

were unable to resolve their differences. On May 21, 2018,

Defendants filed another motion for a protective order,

arguing that: (1) discovery served on the President should be

precluded on separation-of-powers grounds; (2) discovery

related to the President’s communications and deliberations

must be strictly circumscribed; and (3) the President should

not be required to formally invoke his privileges until the

court rules that Plaintiffs have met an initial heavy burden.

Plaintiffs filed an opposition to the motion for a protective

32 KARNOSKI V. TRUMP

order contending that Defendants were attempting “to

transform the qualified presidential communications privilege

into an absolute bar.”

On July 27, 2018, the district court granted Plaintiffs’

motion to compel and denied Defendants’ motion for a

protective order.13 Addressing the deliberative process

privilege, the district court, citing Warner, 742 F.2d at 1161,

stated that for the privilege to apply, a document must be

(1) predecisional, meaning that it was generated before the

adoption of an agency’s policy or decision, and

(2) deliberative, meaning that it contains opinions,

recommendations, or advice about agency policies. The

district court noted that the deliberative process privilege is

not absolute, and that, applying the standard set forth in

Warner, the question was whether Plaintiffs’ “need for the

materials and the need for accurate fact-finding override the

government’s interest in nondisclosure.” Id. The district

court found that the deliberative process privilege should be

narrowly construed and that Defendants did not meet their

burden of establishing its applicability.

13

Before addressing the merits of the discovery motions, the district

court considered the impact of Trump v. Hawaii, 138 S. Ct. 2392 (2018).

The district court rejected Defendants’ claim that the reasoning in that

case precluded discovery directed at the President here. The district court

reasoned first that Hawaii involved an entirely different standard of

scrutiny and unlike “the policy in Hawaii, the [district court] need not

‘look behind the face’ of the Ban, as the Ban is facially discriminatory.”

Second, the district court noted that the majority in Hawaii “repeatedly

emphasized that the exclusion policy was formulated following a

‘worldwide, multi-agency review’” whereas in this case Defendants “have

provided no information whatsoever concerning the process by which the

Ban was formulated.” Further, the district court noted that Hawaii “does

not purport to address the scope of discovery or the application of any

privilege.”

KARNOSKI V. TRUMP 33

The district court concluded that the evidence sought was

“undoubtedly relevant.” The district court held that

Defendants could not maintain that deference was owed to

the Ban because it was a considered decision, while at the

same time withhold all information concerning the alleged

deliberations leading to that decision. The district court also

found that because Defendants possessed all the evidence

concerning their deliberations, the evidence was not

otherwise available to Plaintiffs. The district court further

held that Defendants could not avoid disclosure based on

speculation that discovery would chill future policy decisions;

rather, Defendants had to “identify specific, credible risks

which cannot be mitigated by the existing protective order in

this case” and that outweigh the court’s “need to perform the

‘searching judicial inquiry’ that strict scrutiny requires.”

Addressing Defendants’ motion for a protective order, the

district court recognized that Cheney, 542 U.S. at 387, held

that discovery directed at the President involves special

considerations. But the district court noted that the President

was not immune from civil discovery and that courts have

permitted discovery directed at the President where “he is a

party or has information relevant to the issues in dispute,”

citing United States v. Nixon, 418 U.S. 683, 706 (1974), and

Clinton, 520 U.S. at 704. The district court indicated that the

President could invoke the privilege when asked to produce

documents, and that if he does so, the documents are

presumed privileged. However, this privilege is not absolute,

and if a court finds the privilege is overcome by an adequate

showing of need, the court may review the documents in

camera.

34 KARNOSKI V. TRUMP

The district court then stated:

To date, President Trump and his advisors

have failed to invoke the presidential

communications privilege, to respond to a

single discovery request, or to produce a

privilege log identifying the documents,

communications, and other materials they

have withheld. While Defendants claim they

need not do so until Plaintiffs “exhaust other

sources of non-privileged discovery, meet a

heavy, initial burden of establishing a

heightened, particularized need for the

specific information or documents sought, and

at a minimum substantially narrow any

requests di rect ed at pres ident ial

deliberations,” the Court finds no support for

this claim. To the extent the President intends

to invoke the privilege, the Court already

ordered that he “‘expressly make the claim’

and provide a privilege log ‘describ[ing] the

nature of the documents, communications, or

tangible things not produced or

disclosed—and do so in a manner that,

without revealing information itself privileged

or protected, will enable other parties to

assess the claim.’” Only then can the Court

evaluate whether the privilege applies and if

so, whether Plaintiffs have established a

showing of need sufficient to overcome it.

Accordingly, the district court granted the motion to

compel and denied the motion for a protective order.

Paragraph 3 of the order stated:

KARNOSKI V. TRUMP 35

The Court notes that the government privilege

logs it has reviewed to date are deficient and

do not comply with Federal Rule of Civil

Procedure 26(b)(5)(A)(i)–(ii). Privilege logs

must provide sufficient information to assess

the claimed privilege and to this end must (a)

identify individual author(s) and recipient(s);

and (b) include specific, non-boilerplate

privilege descriptions on a document-by-

document basis. To the extent they have not

already done so, the Court ORDERS

Defendants to produce revised privilege logs

within 10 days of the date of this Order.

II

A. Legal Standard Governing Dissolution of a

Preliminary Injunction

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008). We review an order

regarding preliminary injunctive relief for abuse of discretion,

but review any underlying issues of law de novo. Credit

Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1126

n.7 (9th Cir. 2005).

Pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction

to review an order “granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve or modify

injunctions.” See Gon v. First State Ins. Co., 871 F.2d 863,

36 KARNOSKI V. TRUMP

865 (9th Cir. 1989). However, we have held “that a party that

has failed to appeal from an injunction cannot regain its lost

opportunity simply by making a motion to modify or dissolve

the injunction, having the motion denied, and appealing the

denial. In such a case, the appeal is limited to the propriety

of the denial, and does not extend to the propriety of the

original injunction itself.” Id. at 866.

More specifically, we have held that in “reviewing denials

of motions to dissolve injunctions, we do not consider the

propriety of the underlying order, but limit our review to the

new material presented with respect to the motion to

dissolve.” Sharp v. Weston, 233 F.3d 1166, 1169–70 (9th

Cir. 2000). “A party seeking modification or dissolution of

an injunction bears the burden of establishing that a

significant change in facts or law warrants revision or

dissolution of the injunction.” Id. at 1170; see also Alto v.

Black, 738 F.3d 1111, 1120 (9th Cir. 2013).

B. We vacate the district court’s striking of

Defendants’ motion to dissolve the preliminary

injunction and remand for the district court to

consider the merits of the motion

Our inquiry under Sharp has two parts. We must first

address whether the party seeking dissolution of the

injunction has established “a significant change in facts or

law.” Sharp, 233 F.3d at 1170. If this showing has been

made, the court must then address whether this change

“warrants . . . dissolution of the injunction.” See id. This

latter inquiry should be guided by the same criteria that

KARNOSKI V. TRUMP 37

govern the issuance of a preliminary injunction.14 In seeking

dissolution of a preliminary injunction, however, the burden

with respect to these criteria is on the party seeking

dissolution. See Alto, 738 F.3d at 1120.

1. Defendants have demonstrated a significant

change in facts

Defendants have made the requisite threshold showing of

a significant change in facts. Plaintiffs assert that the 2018

Policy, like the 2017 Memorandum, broadly prohibits

military service by transgender persons. Beyond the narrow

reliance exception, transgender individuals who wish to serve

openly in their gender identity are altogether barred from

service. Even individuals who are willing to serve in the

gender assigned to them at birth are barred from accession if

they have a history or diagnosis of gender dysphoria, unless

14

Under those criteria:

Plaintiffs seeking a preliminary injunction must

establish that: (1) they are likely to succeed on the

merits; (2) they are likely to suffer irreparable harm in

the absence of preliminary relief; (3) the balance of

equities tips in their favor; and (4) an injunction is in

the public interest. Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit weighs

these factors on a sliding scale, such that where there

are only “serious questions going to the merits” – that

is, less than a “likelihood of success” on the merits – a

preliminary injunction may still issue so long as “the

balance of hardships tips sharply in the plaintiff’s

favor” and the other two factors are satisfied. Shell

Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291

(9th Cir. 2013).

Short v. Brown, 893 F.3d 671, 675 (9th Cir. 2018).

38 KARNOSKI V. TRUMP

they can “demonstrate 36 consecutive months of stability –

i.e., absence of gender dysphoria – immediately preceding

their application.” For service members who do not qualify

under the reliance exception, transition-related medical care

is also prohibited. Those who have undergone transition are

disqualified from service, and those who have not

transitioned are disqualified unless they suppress their gender

identity and serve in their birth-assigned sex. Plaintiffs

conclude that the new policy continues to broadly exclude

transgender persons from service in the military.15

But regardless of its overall effect, the 2018 Policy is

significantly different from the 2017 Memorandum in both its

creation and its specific provisions. Plaintiffs asserted that no

deference was due to the 2017 Memorandum because that

policy was not the product of military judgment – i.e. because

“President Trump did not rely upon the professional judgment

of military authorities before announcing the [policy].” The

2018 Policy, however, involved a study by a panel of military

experts that met 13 times over a period of 90 days, a 44-page

report issued by the Department of Defense, and a substantive

memorandum issued by Secretary Mattis. Moreover, there

are significant substantive differences between the 2017

Memorandum and the 2018 Policy. For example, the 2018

Policy includes a reliance exception for service members

15

Defendants argue that the policy does not preclude service by all

transgender persons because there exists a subset of transgender persons

who do not have a history or diagnosis of gender dysphoria, do not wish

to transition, and do not wish to live or serve in their gender identity.

Even assuming that subset exists, the policy indisputably bars many

transgender persons from military service.

KARNOSKI V. TRUMP 39

diagnosed with gender dysphoria after January 1, 2018 that

the 2017 Policy lacked.

We hold that Defendants have made a sufficient showing

of significant change to require the district court to address

whether the change warrants dissolution of the preliminary

injunction. We remand for the district court to perform this

analysis.

2. Factors for the district court to consider in

evaluating whether the significant change

warrants dissolution of the preliminary injunction

Among the factors to be considered on remand are the

level of constitutional scrutiny applicable to the equal

protection or substantive due process rights of transgender

persons and also the deference due to military

decisionmaking. These two factors, although conceptually

distinct, are here intertwined as we are asked to consider the

propriety of a military decision concerning transgender

persons. The district court concluded that the 2018 Policy

had to satisfy “strict scrutiny if it is to survive.” Our view is

that existing law does not support the application of a strict

scrutiny standard of review in this context.

In United States v. Virginia, 518 U.S. 515, 532–33 (1996),

the Supreme Court held that for “cases of official

classification based on gender . . . the reviewing court must

determine whether the proffered justification is ‘exceedingly

persuasive.’” The justification “must be genuine, not

hypothesized or invented post hoc in response to litigation,”

and “must not rely on overbroad generalizations about the

different talents, capacities, or preferences of males and

40 KARNOSKI V. TRUMP

females.” Id. at 533. The Court further commented that

“[p]hysical differences between men and women, however,

are enduring,” and that these differences should “remain

cause for celebration, but not for denigration of the members

of either sex or for artificial constraints on an individual’s

opportunity.” Id. Although the Supreme Court’s opinion in

Virginia requires something more than rational basis review,

it does not require strict scrutiny.

We wrestled with defining the appropriate level of

judicial scrutiny of a military decision based on sexual

orientation in Witt v. Department of the Air Force, 527 F.3d

806 (9th Cir. 2008).16 In reviewing the military’s “Don’t

Ask, Don’t Tell” (“DADT”) policy for gay and lesbian

service members, we adopted a three-factor test based on the

Supreme Court’s opinion in Sell v. United States, 539 U.S.

166, 179-81 (2003). We held that:

when the government attempts to intrude upon

the personal and private lives of homosexuals,

in a manner that implicates the rights

identified in Lawrence [v. Texas, 539 U.S.

558 (2003)], the government must advance an

important governmental interest, the intrusion

must significantly further that interest, and the

intrusion must be necessary to further that

16

The Supreme Court in Gilligan v. Morgan, 413 U.S. 1, 10 (1973),

stated that “[t]he complex, subtle, and professional decisions as to the

composition, training, equipping, and control of a military force are

essentially professional military judgments.” The Court further stated that

such decisions are “subject always to civilian control of the Legislative

and Executive Branches,” and that courts should “give appropriate weight

to this separation of powers.” Id. at 10–11.

KARNOSKI V. TRUMP 41

interest. In other words, for the third factor, a

less intrusive means must be unlikely to

achieve substantially the government’s

interest.

Witt, 527 F.3d at 819.

However, we held that this “heightened scrutiny”

approach “is as-applied rather than facial.” Id. We cited the

Supreme Court’s admonishment in City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 447 (1985), that

an as-applied approach “is the preferred course of

adjudication since it enables courts to avoid making

unnecessarily broad constitutional judgments.” Witt, 527

F.3d at 819. We explained that we had to “determine

not whether DADT has some hypothetical posthoc

rationalization in general, but whether a justification exists

for the application of the policy as applied to Major Witt.”

Id.

Here, in concluding that a strict scrutiny standard of

review applied, the district court reasonably applied the

factors ordinarily used to determine whether a classification

affects a suspect or quasi-suspect class. See Windsor v.

United States, 699 F.3d 169, 181 (2d Cir. 2012) (listing these

factors), aff’d on other grounds, 570 U.S. 744 (2013).17

17

These factors include:

A) whether the class has been historically subjected to

discrimination; B) whether the class has a defining

characteristic that frequently bears a relation to ability

to perform or contribute to society; C) whether the class

exhibits obvious, immutable or distinguishing

42 KARNOSKI V. TRUMP

Nonetheless, in light of the analysis in Virginia and Witt, the

district court should apply a standard of review that is more

than rational basis but less than strict scrutiny.

Defendants assert that, because this case involves judicial

review of military decisionmaking, mere rational basis review

applies. This contention, however, is foreclosed by our

decision in Witt. See Witt, 527 F.3d at 821; see also Rostker

v. Goldberg, 453 U.S. 57, 71 (1981) (explaining that the

Court’s decision in Schlesinger v. Ballard, 419 U.S. 498

(1975), “did not purport to apply a different equal protection

test because of the military context, but did stress the

deference due congressional choices among alternatives in

exercising the congressional authority to raise and support

armies and make rules for their governance”). Under Witt,

deference informs the application of intermediate scrutiny,

but it does not displace intermediate scrutiny and replace it

with rational basis review.

Defendants alternatively argue that rational basis review

applies because the classifications challenged here are based

on “gender dysphoria” and “gender transition” rather than

transgender status. This too is unpersuasive. On its face, the

2018 Policy regulates on the basis of transgender status. It

states that “Transgender persons with a history or diagnosis

of gender dysphoria are disqualified from military service,

characteristics that define them as a discrete group; and

D) whether the class is a minority or politically

powerless.

Windsor, 699 F.3d at 181 (citations, alteration, and internal quotation

marks omitted).

KARNOSKI V. TRUMP 43

except under [certain] limited circumstances,” that

“Transgender persons who require or have undergone gender

transition are disqualified from military service,” and that

“Transgender persons without a history or diagnosis of

gender dysphoria . . . may serve . . . in their biological sex.”

We conclude that the 2018 Policy on its face treats

transgender persons differently than other persons, and

consequently something more than rational basis but less than

strict scrutiny applies.18

We also reject Plaintiffs’ contention that no deference is

owed here. Plaintiffs first argue that deference is not owed to

the 2017 Memorandum because that policy was not the

product of military judgment. Next, they argue that deference

is not owed to the 2018 Policy because that policy simply

implemented the 2017 Memorandum. According to

Plaintiffs, the 2018 Policy “is not a new policy at all, but

rather the expected and mandated outcome of President

Trump’s directives.” As such, it could not have constituted

a meaningful exercise of military judgment, because

“whatever independent judgment the military brought to bear,

18

Because the 2018 Policy discriminates on the basis of transgender

status on its face, we need not address whether it constitutes

discrimination against transgender persons on the alternative ground that

gender dysphoria and transition are closely correlated with being

transgender. See Christian Legal Soc’y Chapter of the Univ. of Cal.,

Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 689 (2010) (citing

Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“While it is true

that the law applies only to conduct, the conduct targeted by this law is

conduct that is closely correlated with being homosexual. Under such

circumstances, [the] law is targeted at more than conduct. It is instead

directed toward gay persons as a class.” (alteration in original))); cf. Bray

v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993).

44 KARNOSKI V. TRUMP

it was limited to determining how to implement the [2017

Memorandum] – not whether to do so.” Plaintiffs argue the

deliberative process that led to the 2018 Policy was not an

exercise of independent military judgment because the scope

of this review was “constrained by President Trump’s

directives,” the officials who conducted the review were not

“free to disagree with President Trump,” and the review’s

ultimate recommendations, having been “dictated” by the

President, were “preordained.”

Although Plaintiffs on remand may present additional

evidence to support this theory, the current record does not

bear out the contention that the 2018 Policy was nothing

more than an implementation of the 2017 Memorandum, or

that the review that produced the 2018 Policy was limited to

this purpose. It is true that the 2017 Memorandum directed

the Secretary of Defense to develop “a plan for implementing

both the general policy . . . and the specific directives set

forth in [that] memorandum.” It is also true that Secretary

Mattis subsequently created a panel to develop such a plan.

But the 2017 Memorandum also provided that the Secretary

of Defense “may advise [the President] at any time, in

writing, that a change to this policy is warranted,” and

Secretary Mattis, accordingly, directed the panel not only to

develop an implementation plan but also to “bring a

comprehensive, holistic, and objective approach to study

military service by transgender individuals.” The panel, in

turn, appears to have construed its mandate broadly.19 The

19

According to the Report:

To fulfill its mandate, the Panel addressed three

questions:

KARNOSKI V. TRUMP 45

policies ultimately recommended by Secretary Mattis were

somewhat different from the President’s earlier policy and

directives, and the President adopted the Secretary’s

recommendations.

In short, the district court must apply appropriate military

deference to its evaluation of the 2018 Policy. See Witt, 527

F.3d at 821. On the current record, a presumption of

deference is owed, because the 2018 Policy appears to have

been the product of independent military judgment. In

applying intermediate scrutiny on remand, the district court

may not substitute its “own evaluation of evidence for a

reasonable evaluation” by the military. Rostker, 453 U.S. at

68. Of course, “deference does not mean abdication.” Witt,

527 F.3d at 821 (quoting Rostker, 453 U.S. at 70).

Defendants bear the burden of establishing that they

reasonably determined the policy “significantly furthers” the

government’s important interests, and that is not a trivial

burden. See id.

Because the 2018 Policy is a significant change from the

2017 Memorandum, the district court on remand must apply

the “traditional” standard for injunctive relief to determine

whether dissolution of the injunction is warranted,

! Should the Department of Defense access

transgender individuals?

! Should the Department allow transgender

individuals to transition gender while serving, and

if so, what treatment should be authorized?

! How should the Department address transgender

individuals who are currently serving?

46 KARNOSKI V. TRUMP

addressing: (1) whether Plaintiffs have made a sufficient

showing of a likelihood of success on the merits; (2) whether

Plaintiffs will be irreparably harmed absent interim relief;

(3) whether the issuance of an injunction will substantially

injure other parties; and (4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 434 (2009); Washington v.

Trump, 847 F.3d 1151, 1164 (9th Cir. 2017); see also City &

County of San Francisco v. Trump, 897 F.3d 1225, 1243 (9th

Cir. 2018).

C. We extend the Supreme Court’s stay of the

preliminary injunction

On January 22, 2019, the Supreme Court issued an order

staying the district court’s preliminary injunction, pending

Defendants’ appeal in this court. As we vacate the district

court’s striking of Defendants’ motion to dissolve the

preliminary injunction and direct the district court to consider

the motion on its merits, we now, consistent with the

Supreme Court’s order, stay the preliminary injunction

through the district court’s further consideration of the

motion to dissolve.

III

A. Standard of Review Governing Mandamus Relief

Our consideration of Defendants’ petition for a writ of

mandamus is guided by the Supreme Court’s opinion in

Cheney, 542 U.S. 367. There, the Court held that three

conditions must be satisfied before a writ may issue: (1) the

petitioner must have no other adequate means to attain the

relief desired; (2) the petitioner must show that the right to

KARNOSKI V. TRUMP 47

the writ is clear and indisputable; and (3) “even if the first

two prerequisites have been met, the issuing court, in the

exercise of its discretion, must be satisfied that the writ is

appropriate under the circumstances.” Id. at 380–81. These

conditions are consistent with the five guidelines we

established in Bauman v. U.S. District Court, 557 F.2d 650,

654–55 (9th Cir. 1977), to determine whether mandamus is

appropriate in a given case: (1) whether the petitioner has no

other means, such as a direct appeal, to obtain the desired

relief; (2) whether the petitioner will be damaged or

prejudiced in any way not correctable on appeal; (3) whether

the district court’s order is clearly erroneous as a matter of

law; (4) whether the district court’s order is an oft repeated

error or manifests a persistent disregard of the federal rules;

and (5) whether the district court’s order raises new and

important problems or issues of first impression. See In re

Bundy, 840 F.3d 1034, 1041 n.5 (9th Cir. 2016); In re United

States, 791 F.3d 945, 955 n.7 (9th Cir. 2015).

B. We vacate the district court’s discovery order

The unique features of the executive privileges at issue in

this litigation—the presidential communications privilege and

the deliberative process privilege—suggest that there is no

other adequate means of relief. The two privileges were

explained in Loving v. Department of Defense, 550 F.3d 32

(D.C. Cir. 2008):

The presidential communications privilege, a

“presumptive privilege for [p]residential

communications,” United States v. Nixon, 418

U.S. 683, 708 (1974), preserves the

President’s ability to obtain candid and

48 KARNOSKI V. TRUMP

informed opinions from his advisors and to

make decisions confidentially, see Judicial

Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108,

1112 (D.C. Cir. 2004). As such, the privilege

protects “communications directly involving

and documents actually viewed by the

President,” as well as documents “solicited

and received” by the President or his

“immediate White House advisers [with] . . .

broad and significant responsibility for

investigating and formulating the advice to be

given the President.” Id. at 1114. The

privilege covers documents reflecting

“p re s i d ent ial deci s i onm aki ng and

deliberations,” regardless of whether the

documents are predecisional or not, and it

covers the documents in their entirety.20

Id. at 37–38 (alterations in original). Distinctly, the

deliberative process privilege:

protects “documents reflecting advisory

opinions, recommendations and deliberations

comprising part of a process by which

governmental decisions and policies are

formulated.” Dep’t of Interior v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 8

(2001) (internal quotation marks omitted).

For the deliberative process privilege to apply,

the material must be “predecisional” and

“deliberative.” In re Sealed Case, 121 F.3d

20

Here, and in future quotes, the parallel citations have been omitted.

KARNOSKI V. TRUMP 49

[729,] 737 [(D.C. Cir. 1997)]. Unlike the

presidential communications privilege, the

deliberative process privilege does not protect

documents in their entirety; if the government

can segregate and disclose non-privileged

factual information within a document, it

must. Army Times Publ’g Co. v. Dep’t of Air

Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993).

Id. at 38.

Both forms of executive privilege are at issue in this

litigation. The initial premise of the suit was that the

President’s Twitter Announcement and the 2017

Memorandum were not considered military decisions that

warranted judicial deference. Although the focus has been

shifted by the 2018 Policy, Plaintiffs raise non-frivolous

arguments that the 2018 Policy did not independently

analyze the impact of transgender individuals serving in the

armed services, but rather implemented the 2017

Memorandum. Thus, the litigation may require the district

court to consider the basis of the President’s initial decision,

as well as the 2018 Policy, and may implicate both the

presidential communications and the deliberative process

privileges.

1. The Presidential Communications Privilege

The district court gave insufficient weight to the

Supreme Court’s explanation in Cheney, that:

[e]xecutive privilege is an extraordinary

assertion of power “not to be lightly

50 KARNOSKI V. TRUMP

invoked.” United States v. Reynolds, 345

U.S. 1, 7 (1953). Once executive privilege is

asserted, coequal branches of the

Government are set on a collision course.

The Judiciary is forced into the difficult task

of balancing the need for information in a

judicial proceeding and the Executive’s

Article II prerogatives. This inquiry places

courts in the awkward position of evaluating

the Executive’s claims of confidentiality and

autonomy, and pushes to the fore difficult

questions of separation of powers and checks

and balances. These “occasion[s] for

constitutional confrontation between the two

branches” should be avoided whenever

possible. United States v. Nixon, [418 U.S.]

at 692.

542 U.S. at 389–90 (second alteration in original).21 The

Supreme Court explained that “Nixon does not leave [courts

with] the sole option of inviting the Executive Branch to

invoke executive privilege while remaining otherwise

powerless to modify a party’s overly broad discovery

requests.” Id. at 389. Rather, courts are urged to “explore

21

The term “executive privilege” is sometimes used to refer to the

presidential communications privilege, see, e.g., In re Lindsey, 158 F.3d

1263, 1266–67 (D.C. Cir. 1998), and is sometimes “used to refer to a wide

variety of evidentiary and substantive privileges that courts accord the

executive branch,” In re Sealed Case, 121 F.3d at 735 n.2. We use the

latter formulation, but Cheney, which involved discovery directed “to the

Vice President and other senior Government officials who served . . . to

give advice and make recommendations to the President,” appeared to use

the former. 542 U.S. at 385.

KARNOSKI V. TRUMP 51

other avenues, short of forcing the Executive to invoke

privilege, when they are asked to enforce against the

Executive Branch unnecessarily broad subpoenas.” Id. at

390. The Supreme Court noted that the lower court had

“labored under the mistaken assumption that the assertion of

executive privilege is a necessary precondition to the

Government’s separation-of-powers objections.” Id. at 391.

Similarly here, the district court appears to have “labored

under the mistaken assumption” that the President had to

assert the presidential communications privilege to the

specific documents covered by Plaintiffs’ discovery requests

before Defendants could lodge a separation-of-powers

objection.

In its order, the district court focused on the deliberative

process privilege and commented that Defendants “have

failed to invoke the presidential communications privilege,

to respond to a single discovery request, or to produce a

privilege log identifying the documents, communications,

and other materials they have withheld.” But while

Defendants’ tactics in opposing discovery may have been

unhelpful, they did not absolve the district court from

“explor[ing] other avenues, short of forcing the Executive to

invoke privilege.” Id. at 390.

On remand, the district court should give due deference

to the presidential communications privilege, but also

recognize that it is not absolute. The D.C. Circuit in In re

Sealed Case commented:

A party seeking to overcome a claim of

presidential privilege must demonstrate: first,

that each discrete group of the subpoenaed

52 KARNOSKI V. TRUMP

materials likely contains important evidence;

and second, that this evidence is not available

with due diligence elsewhere. The first

component, likelihood of containing

important evidence, means that the evidence

sought must be directly relevant to issues that

are expected to be central to the trial. . . . The

second component, unavailability, reflects

Nixon’s insistence that privileged presidential

communications should not be treated as just

another source of information.

121 U.S. at 754–55.

Here, the district court stated it would apply this test after

the President had invoked the privilege, which is consistent

with how the test was applied in In re Sealed Case. See id. at

744 n.16. But, in light of the Supreme Court’s subsequent

opinion in Cheney, we hold that Plaintiffs must make a

preliminary showing of need demonstrating “that the

evidence sought [is] directly relevant to issues that are

expected to be central to the trial” and “is not available with

due diligence elsewhere.” Id. at 754.

We note, however, that this standard does not require

Plaintiffs to pinpoint with precision what materials they are

seeking. See Dellums v. Powell, 561 F.2d 242, 248–49 (D.C.

Cir. 1977) (holding plaintiffs overcame the presumption of

the privilege despite not definitively establishing that

conversations they sought actually took place); United States

v. Poindexter, 727 F. Supp. 1501, 1510 (D.D.C. 1989) (“[The

Court] will not place the defendant in the impossible position

of having to provide exquisite specificity as a prerequisite to

KARNOSKI V. TRUMP 53

enforcement of the subpoena by the Court, while he is denied

access to the documents in question, thus making it

impossible for him to be more specific.”). So long as

Plaintiffs’ discovery requests are narrowly tailored to seek

evidence that is directly relevant to central issues in the

litigation and is not available with due diligence elsewhere,

Plaintiffs have met their preliminary burden.

To the extent that Plaintiffs are able to meet this

heightened standard, the President must be given the

opportunity to invoke the privilege formally and make

particularized objections to “show that the interest in secrecy

or nondisclosure outweighs the need” for responsive

materials, Dellums v. Powell, 642 F.2d 1351, 1363 (D.C. Cir.

1980), and the district court must conduct in camera review

before any materials are turned over to Plaintiffs to excise

non-relevant material and “ensure that presidential

confidentiality is not unnecessarily breached,” In re Sealed

Case, 121 F.3d at 759; see also Dellums, 642 F.2d at 1364.

2. The Deliberative Process Privilege

The deliberative process privilege, although not as robust

as the presidential communications privilege, still commands

judicial consideration. We have held that “[a] litigant may

obtain deliberative materials if his or her need for the

materials and the need for accurate fact-finding override the

government’s interest in non-disclosure.” Warner, 742 F.2d

at 1161. As the district court here correctly recognized, we

balance four factors in determining whether this exception to

the deliberative process privilege is met: “1) the relevance of

the evidence; 2) the availability of other evidence; 3) the

government’s role in the litigation; and 4) the extent to which

54 KARNOSKI V. TRUMP

disclosure would hinder frank and independent discussion

regarding contemplated policies and decisions.” Id.

In balancing these factors, we note that the second and

third criteria favor Plaintiffs. The evidence sought is

primarily, if not exclusively, under Defendants’ control, and

the government—the Executive—is a party to and the focus

of the litigation.

However, the existing record is not adequate to evaluate

the relevance of all of the requested information, at least in

terms of balancing production of materials against the

military’s countervailing confidentiality interest. For

example, is information concerning the basis for the 2017

Memorandum still relevant now that the 2018 Policy has been

adopted?22 Although we do not mandate any particular

course of action, the district court may wish to authorize

discovery in stages when the current record is insufficient to

establish relevance. Also, the fourth factor deserves careful

consideration, because the military’s interest in full and frank

communication about policymaking raises serious—although

not insurmountable—national defense interests. These are

among the concerns that the district court and the parties

should consider in balancing the deliberative process

privilege with Plaintiffs’ need for certain information.

22

We note that in Trump v. Hawaii, 138 S. Ct. 2392, 2409 (2018), the

Court held that “[t]he 12-page Proclamation—which thoroughly describes

the process, agency evaluations, and recommendations underlying the

President’s chosen restrictions”—was sufficient to allow for judicial

review.

KARNOSKI V. TRUMP 55

Moreover, in balancing the Warner factors, the district

court should consider classes of documents separately when

appropriate. It is not clear the district court did so in this

case. The district court appears to have conducted a single

deliberative process privilege analysis covering all withheld

documents, rather than considering whether the analysis

should apply differently to certain categories. If Defendants

persuasively argue that a more granular analysis would be

proper, the district court should undertake it. Documents

involving the most senior executive branch officials, for

example, may require greater deference. (They may, of

course, also be the most relevant.)

3. Conclusion

Although we hold that the district court did not

adequately consider the weighty issues implicated by

Plaintiffs’ discovery requests, we appreciate that Defendants’

responses to those requests may not have helped the district

court in performing its difficult task. We express no opinion

as to whether Defendants may be compelled to disclose any

particular evidence to Plaintiffs or even to the district court

for in camera review. We do expect, however, that the

parties will provide the district court with the information and

arguments it needs to balance the significant interests at play

under the tests we have discussed above.

We issue the writ and vacate the district court’s discovery

orders because the district court did not fulfill its obligation

“to explore other avenues, short of forcing the Executive to

invoke privilege.” Cheney, 542 U.S. at 390. In its further

considerations of Plaintiffs’ discovery requests, the district

court should apply the standards set forth in Cheney, 542 U.S.

56 KARNOSKI V. TRUMP

367, In re Sealed Case, 121 F.3d 729, Warner, 742 F.2d

1156, and the other cases discussed in this opinion.

IV

We conclude that in striking the motion to dissolve the

preliminary injunction, the district court failed to give the

2018 Policy the thorough consideration due. Regardless of

the merits of the 2017 Memorandum, the reasonableness of

the 2018 Policy must be evaluated on the record supporting

that decision and with the appropriate deference due to a

proffered military decision. Accordingly, we vacate the

district court’s striking of Defendants’ motion to dissolve the

preliminary injunction and remand the matter to the district

court for reconsideration. Consistent with the Supreme

Court’s January 22, 2019 order, we stay the district court’s

December 11, 2017 preliminary injunction through the

district court’s reconsideration of Defendants’ motion. If the

district court denies the motion to dissolve the injunction, the

stay shall remain in place throughout this court’s disposition

of any appeal by the Government.

We also issue the writ of mandamus and vacate the

district court’s discovery order, so that the district court may

reconsider Plaintiffs’ discovery requests giving full

consideration to the Executive’s Article II prerogatives. See

Cheney, 542 U.S. at 389. The executive privileges—the

presidential communications privilege and deliberative

process privilege—although not absolute, require careful

consideration by the judiciary, even when they have not been

clearly or persuasively raised by the government.

Furthermore, in Cheney, the Supreme Court rejected the

notion that the Executive must first assert the presidential

KARNOSKI V. TRUMP 57

communications privilege to narrow the subpoenas, and

advised that it was “undesirable as a matter of constitutional

and public policy to compel a President to make his decision

on privilege with respect to a large array of documents.” Id.

at 390. The district court’s future considerations of Plaintiffs’

discovery requests should be guided by the Supreme Court’s

opinion in Cheney.

The district court’s striking of Defendants’ motion to

dissolve the preliminary injunction is vacated, the preliminary

injunction is stayed pending the district court’s

reconsideration of that motion, Defendants’ petition for writ

of mandamus is granted, the district court’s July 27, 2018

discovery order is vacated, and this case is remanded to the

district court.23

Following the Supreme Court’s January 22, 2019

decision, Plaintiffs informed this court that they no longer

oppose the remedy of vacatur of the preliminary injunction

and remand sought by Defendants. Plaintiffs asked this court

to “enter a summary order vacating the preliminary injunction

and remanding to the district court for further proceedings.”

In response, Defendants urged us to “issue a reasoned

decision vacating the district court’s preliminary injunction.”

We have adopted neither of these paths. Our decision

remands for the district court to consider the merits of

Defendants’ motion to dissolve the preliminary injunction.

23

The parties and amici have raised a number of other issues which

are arguably before us, but we decline to reach them in favor of further

proceedings in the district court leading to the trial of Plaintiffs’

contentions.

58 KARNOSKI V. TRUMP

If Plaintiffs no longer wish to pursue a preliminary

injunction, they may so advise the district court on remand.

18-35347 - The District Court’s order striking motion to

dismiss is

VACATED and REMANDED.

18-72159 - Writ GRANTED vacating District Court's

discovery order and

REMANDED.

Each party shall bear its own costs of appeal.