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Stone v. Trump

United States District Court, D. Maryland

August 14, 2018

BROCK STONE, et al.. Plaintiffs,
DONALD J. TRUMP, et al., Defendants.


          A. David Copperthite United States Magistrate Judge

         This 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).


         On July 26, 2017. President Trump published three tweets which collectively stated:

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.

         The 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.

         Prior 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.

         Defendants 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.

         Plaintiffs 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.

         The Motion to Compel

         Plaintiffs have moved to compel the production of three categories of documents.

(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 ...

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