United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants President Donald J.
Trump, Secretary of Defense James Mattis, Secretary of the
Army Mark Esper, Secretary of the Navy Richard Spencer,
Secretary of the Air Force Heather Wilson, Secretary of
Homeland Security Kirstjen Nielsen, and Commandant of the
U.S. Coast Guard Paul Zukunft's Objections to the
Magistrate Judge's Memorandum Opinion and Order (ECF No.
209) and Motion to Stay Compliance with the Magistrate
Judge's Memorandum Order and Opinion (ECF No. 208). This
case involves equal protection and substantive due process
challenges to President Trump's policy banning
transgender persons from serving in the military. The
Objections and Motion to Stay are ripe for disposition, and
no hearing is necessary. See Local Rule 105.6 (D.Md.
2016). For the reasons outlined below, the Court will
overrule the Objections and grant the Motion to
2016, the Department of Defense (“DOD”), after
completing a thorough analysis of military costs, readiness,
and other factors, concluded that “there was no basis
for the military to exclude men and women who are transgender
from openly serving their country, subject to the same
fitness requirements as other service members.” (2d Am.
Compl. ¶ 5, ECF No. 148). Subsequently, the Secretary of
Defense issued the Open Service Directive to permit
transgender persons to serve openly starting July 1, 2017.
26, 2017, however, President Trump published a series of
Tweets stating, “[T]he United States
Government will not accept or allow . . . [t]ransgender
individuals to serve in any capacity in the U.S.
Military.” (Id. ¶ 6). On August 25, 2017,
President Trump issued a “Memorandum for the Secretary
of Defense and the Secretary of Homeland Security”
(“Transgender Service Member Ban”), which
formalized the ban on transgender service members.
(Id. ¶ 8). In addition, President Trump
directed the Secretary of Defense to develop a plan for
implementing the policy directives by February 21, 2018 (the
“Implementation Plan”), with full implementation
by March 23, 2018. (Id.).
September 14, 2017, the Secretary of Defense issued Terms of
Reference for developing the Implementation Plan, which
directed the Deputy Secretary of Defense and the Vice
Chairman of the Joint Chiefs of Staff to lead the development
of the Implementation Plan and to convene a Panel of Experts
from within DOD to conduct a study to inform the
Implementation Plan. (Pls.' Cert. Conf. Counsel Ex. 20 at
2-3, ECF No. 177-24). In March 2018, the Secretary of Defense
publically released the Implementation Plan, which: (1)
prohibited transgender individuals who “require or have
undergone gender transition” from serving in the
military; and (2) permitted all other transgender individuals
to serve “in their biological sex” as long as
they do not have a history or diagnosis of gender dysphoria.
(2d Am. Compl. ¶ 11; Defs.' Mot. Dissolve Prelim.
Inj. Ex. 1 at 2-3, ECF No. 120-1). These three policy
directives: (1) the presidential Tweets; (2) the Transgender
Service Member Ban; and (3) the Implementation Plan and
related Panel of Experts, are at issue in this case.
August 28, 2017, fourteen transgender
individuals and the American Civil Liberties Union of
Maryland, Inc. filed suit against Defendants. (ECF No. 1).
Plaintiffs allege that President Trump's ban on
transgender persons serving in the military violates: (1) the
Equal Protection component of the Due Process Clause to the
Fifth Amendment of the United States Constitution; (2)
substantive due process; and (3) 10 U.S.C. § 1074
(2018), which entitles current and certain former members of
the military to medical care. (Am. Compl. at 32, 36, 38, ECF
September 14, 2017, Plaintiffs filed a Motion for a
Preliminary Injunction. (ECF No. 40). On October 12, 2017,
Defendants filed a Motion to Dismiss and Opposition to
Plaintiff's Motion for a Preliminary Injunction. (ECF No.
52). On November 21, 2017, this Court granted Plaintiffs'
Motion for a Preliminary Injunctionand Defendant's Motion to
Dismiss the 10 U.S.C. § 1074 claim. (Nov. 21, 2018 Mem.
& Order at 52-53, ECF No. 85).
4, 2018, the Court referred this case to a United States
Magistrate Judge (“USMJ”) for all discovery. (ECF
No. 152). On June 15, 2018, Plaintiffs filed a Motion to
Compel Supplemental Interrogatory Answers and Production.
(ECF No. 177-1). In their Motion to Compel, Plaintiffs sought
deliberative materials regarding: (1) President Trump's
July 2017 Tweets and the Transgender Service Member Ban; (2)
the DOD's Panel of Experts; and (3) the Implementation
Plan and President Trump's acceptance of the Plan.
(Pls.' Mot. Compel at 1, ECF No. 177-1). At the same
time, Plaintiffs filed a Motion for a Judicial Determination
of Privilege Claims (ECF No. 178 (sealed document)) on a
PowerPoint presentation that the Army inadvertently produced
and Defendants sought to clawback on the theory that it, too,
is protected by deliberative process privilege. (Defs.'
Objs. Magistrate Judge's Mem. Op. & Order at 5, ECF
No. 209). On June 18, 2018, Defendants filed a Motion for a
Protective Order to preclude discovery directed at the
President and other sources concerning presidential
communications and deliberations. (ECF No.
August 14, 2018, the USMJ issued a Memorandum Opinion and
Order on these three Motions. (Aug. 14, 2018 Mem. Op.
[“Mem. Op.”], ECF No. 204; Aug. 14, 2018 Order,
ECF No. 205). The USMJ granted Plaintiffs' Motion to
Compel, dismissed Plaintiffs' Motion for a Judicial
Determination of Privilege Claims as moot, and granted
Defendants' Motion for a Protective Order as to the
President, but denied the Protective Order as to others who
communicate with the President. (Mem. Op. at 11; Aug. 14,
2018 Order ¶¶ 1-3). The USMJ granted
Plaintiff's Motion to Compel because there were no
justifiable reasons to stay discovery. (Mem. Op. at 4). In
addition, applying In re Subpoena Duces Tecum Served on
Office of Comptroller of the Currency, 145 F.3d 1422,
1424 (D.C. Cir. 1998), the USMJ concluded that deliberative
process privilege does not apply given that government intent
“is at the very heart of this litigation.”
(Id. at 5-6). The USMJ dismissed Plaintiffs'
Motion for Judicial Determination of Privilege Claims as moot
because the USMJ determined that deliberative process
privilege does not apply to Plaintiffs' discovery
requests. (Id. at 11). Finally, balancing deference
to the Executive with Plaintiffs' need for discovery, the
USMJ granted Defendants' Motion for a Protective Order as
to the President but not as to individuals with whom the
President communicates. (Id. at 9-11).
now object to the USMJ's Memorandum Opinion and Order,
and move to stay the Order. (ECF Nos. 208, 209). Plaintiffs
filed an Opposition to Defendants' Motion to Stay on
August 31, 2018. (ECF No. 211). Plaintiffs also filed an
Opposition to Defendants' Objections to the USMJ's
Order on September 14, 2018. (ECF No. 216). On September 28,
2018, Defendants filed a Reply. (ECF No. 221).
Objections to the Magistrate Judge's
Standard of Review
Federal Rule of Civil Procedure 72(a), a district court
“must consider timely objections” to a USMJ's
order on nondispositive, pretrial matters and “modify
or set aside any part of the order that is clearly erroneous
or is contrary to law.” “The ‘clearly
erroneous' standard applies to factual findings, while
legal conclusions will be rejected if they are
‘contrary to law.'” Sky Angel U.S., LLC
v. Discovery Commc'ns, LLC, 28 F.Supp.3d 465, 479
the clearly erroneous standard, the reviewing court does not
ask whether a finding is “the best or only conclusion
permissible based on the evidence.” In re Subpoena
of Am. Nurses Ass'n, No. 08-CV-0378, 2013 WL
5741242, at *1 (D.Md. Aug. 8, 2013) (quoting Huggins v.
Prince George's Cty., 750 F.Supp.2d 549, 559 (D.Md.
2010)). “Rather, the Court is ‘only required to
determine whether the magistrate judge's findings are
reasonable and supported by the evidence.” Id.
(quoting Huggins, 750 F.Supp.2d at 559). The Court
will affirm findings of fact “unless [the Court's]
review of the entire record leaves [it] with the definite and
firm conviction that a mistake has been committed.”
Harman v. Levin, 772 F.2d 1150, 1153 (4th Cir. 1985)
(citing United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)).
‘contrary to law' standard ordinarily suggests a
plenary review of legal determinations, but many courts have
noted that decisions of a magistrate judge concerning
discovery disputes . . . should be afforded ‘great
deference.'” In re Outsidewall Tire
Litig., 267 F.R.D. 466, 470 (E.D.Va. 2010); see also
Neighborhood Dev. Collaborative v. Murphy, 233 F.R.D.
436, 438 (D.Md. 2005) (stating that “[a] district court
owes substantial deference to a magistrate judge in
considering a magistrate judge's ruling on a
non-dispositive motion”); 12 Charles Allen Wright,
Arthur R. Miller & Richard L. Marcus, Federal
Practice & Procedure § 3069 (2d ed. 1997)
(observing that altering a magistrate judge's
nondispostive orders is extremely difficult to justify).
“In light of the broad discretion given to a magistrate
judge in the resolution of nondispositive discovery disputes,
the court should only overrule a magistrate judge's
determination if this discretion is abused.”
Patrick v. PHH Mortg. Corp., 298 F.R.D. 333, 336
(N.D.W.Va. 2014) (quoting Shoop v. Hott, 2010 WL
5067567, *2 (N.D.W.Va. Dec. 6, 2010)). Under the
“contrary to law” standard, “the critical
inquiry is whether there is legal authority that supports the
magistrate's conclusion.” Guiden v. Leatt
Corp., No. 5:10-CV-00175, 2013 WL 4500319, at *3
(W.D.Ky. Aug. 21, 2013) (citing Carmona v. Wright,
233 F.R.D. 270, 276 (N.D.N.Y. 2006)). “That reasonable
minds may differ on the wisdom of a legal conclusion does not
mean it is clearly erroneous or contrary to law.”
Id. Importantly, “it is not the function of
objections to discovery rulings to allow wholesale
relitigation of issues resolved by the magistrate
judge.” Buchanan v. Consol. Stores Corp., 206
F.R.D. 123, 124 (D.Md. 2002).
challenge three aspects of the USMJ's discovery Order:
(1) certain factual findings; (2) the grant of
Plaintiffs' Motion to Compel and the finding of mootness
as to Plaintiffs' Motion for Judicial Determination of
Privilege Claims; and (3) the partial denial of the