United States District Court, D. Maryland
BROCK STONE, et al.. Plaintiffs,
DONALD J. TRUMP, et al., Defendants.
David Copperthite United States Magistrate Judge
ease was referred to me for all discovery and related
scheduling matters on May 7, 2018 (See ECF No. 152.
re-assigned on May 7, 2018). Pending now before me are three
motions: (1) Plaintiffs" motion to compel discovery (ECF
No. 177). (2) Plaintiffs' motion for judicial
determination of privilege (ECF No. 178), and (3)
Defendants' motion for a protective order (ECF No. 179).
This litigation resulted from the ban on transgender persons
serving in the military which was first announced on social
media by President Donald Trump. Plaintiffs allege the ban
instituted by President Trump and the Trump administration
violates the Equal Protection component of the Fifth
Amendment's Due Process Clause, violates substantive due
process, and violates 10 U.S.C. § 1074 by denying
medical treatment to military personnel (ECF No. 39).
26, 2017. President Trump published three tweets which
After consultation with my Generals and military experts,
please be advised that the United States Government will not
accept or allow [t]ransgender 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
transgenders in the military would entail. Thank you.
ECF No. 39 at 4.
facts in this case are set forth in great detail by the Court
in its November 21. 2017 Memorandum and Order adopted herein,
and summarized for simplicity sake. The issue of service by
transgender military members has been addressed by previous
administrations. On September 20, 2011, the military policy
of "Don't Ask, Don't Tell" ended, which
allowed gay, lesbian, and bisexual service members to serve
openly. However, transgender persons were still banned from
service until June 2016. On June 30, 2016. Secretary of
Defense Ashton Carter issued a policy allowing transgender
service members to serve openly so long as the individuals
could meet the standards for military readiness.
to June 30, 2016, the policy instituted by Secretary Carter
allowing transgender service members went through extensive
review by a working group consisting of representatives of
the Armed Forces. Joint Chiefs of Staff, the service
secretaries, and personnel, training, readiness, and medical
specialists from across the Department of Defense
("DoD'). ECF No. 85. The working group performed a
systematic review including commissioning studies and
meetings with transgender service members, outside experts,
medical personnel, military leaders, allied militaries and
others. After a year-long study the working group concluded
that open service by transgender service members would not
impose any significant burdens on readiness, deployability,
or unit cohesion. In contrast. President Trump announced a
ban on transgender service via Twitter, stating only that he
consulted with "my Generals and military experts."
After his July 26, 2017 tweets, President Trump issued a
Presidential Memorandum again stating his
administration's position banning transgender military
service in August 2017.
state in their opposition that President Trump revoked his
August 2017 Memorandum allowing the Secretaries of Defense
and Homeland Security to "exercise their authority to
implement any appropriate policies concerning military
service by transgender individuals" resulting in the
2018 Presidential Memorandum. ECF 188-27 at 11.
allege that President Trump proclaimed, based upon political
or unconstitutional reasons, a ban on transgender service
without the proper justification that would be found through
the deliberative process. Plaintiffs seek materials related
to the deliberative process, if any, that existed prior to
the tweets or subsequently that resulted in the frump
administration's policy banning transgender service and
negative accession, denying medical benefits and requiring
discharge of current transgender service members. At the
preliminary injunction stage, this Court ruled that
Plaintiffs have established a likelihood of success at least
as to the Equal Protection claim. ECF 85 at 42.
Motion to Compel
have moved to compel the production of three categories of
(1) Deliberative materials regarding the President's July
2017 tweets and August 2017 Memorandum:
(2) Deliberative materials regarding the activities of the
DoD's so-called panel of experts and its working groups
(the "Panel") tasked with developing a plan to
study and ...