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Stone v. Trump

United States District Court, D. Maryland

August 20, 2019

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

          MEMORANDUM OPINION

          GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on four Motions: (1) Defendants President Donald J. Trump, Secretary of Defense Mark T. Esper, [1] Acting Secretary of the Army Ryan McCarthy, [2] Acting Secretary of the Navy Richard V. Spencer, Secretary of the Air Force Heather Wilson, Acting Secretary of Homeland Security Kevin McAleenan, [3] and Commandant of the U.S. Coast Guard Karl L. Schultz's[4] Partial Motion for Judgment on the Pleadings and Motion to Partially Dissolve the Preliminary Injunction (“Motion for Judgment on the Pleadings”) (ECF No. 115); (2) Defendants' Motion to Dissolve the Preliminary Injunction (“Motion to Dissolve”) (ECF No. 120); (3) Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint or, in the Alternative, Defendants' Motion for Summary Judgment (ECF No. 158); and (4) Plaintiffs'[5] Cross-Motion for Summary Judgment (ECF No. 163).[6] This case involves equal protection and substantive due process challenges to President Trump's policy regarding transgender persons' enlistment and service in the military. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will: deny without prejudice in part and deny as moot in part Defendants' Motion for Judgment on the Pleadings; grant Defendants' Motion to Dissolve; grant in part and deny in part Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint or, in the Alternative, Defendants' Motion for Summary Judgment; and deny without prejudice Plaintiffs' Cross-Motion for Summary Judgment.

         I. BACKGROUND[7]

         A. Factual Background

         1. Pre-June 2016 Transgender Military Service Policy

         At some point before 1981, the U.S. Department of Defense (the “DoD”) implemented a policy that barred transgender men and women from enlisting or serving openly in the military. (2d Am. Compl. ¶ 128, ECF No. 148). This policy applied to transgender individuals regardless of their fitness to serve or their need for medical treatment. (Id. ¶ 129). The DoD based this policy on its conclusion that “Sexual Gender and Identity Disorders” rendered transgender service members “administratively unfit” to serve in the military. (Brown Decl. ¶¶ 48-56, ECF No. 40-32).

         2. The Open Service Directive

         In 2016, the DoD completed a thorough analysis of military costs, readiness, and other factors, concluding 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). On June 30, 2016, then-Secretary of Defense Ashton Carter issued the Open Service Directive, which permitted transgender persons currently in the military to serve openly effective immediately and permitted the accession[8] of transgender individuals starting on July 1, 2017. (Id. ¶ 139, 141). The Open Service Directive also permitted in-service gender transition and covered necessary medical care and treatment to transgender individuals beginning on October 1, 2016. (Pls.' Mot. Prelim. Inj. Ex. 1 at 2, 6, ECF No. 40-4).[9] On June 30, 2017, then-Secretary of Defense James Mattis (“Secretary Mattis”) deferred implementation of the accession component of the Open Service Directive until January 1, 2018. (Pls.' Mot. Prelim. Inj. Ex. 8, ECF No. 40-11; see 2d Am. Compl. ¶ 162).

         3. The President's Tweets and August 2017 Memorandum

         On July 26, 2017, President Trump published a series of Tweets[10] stating, “After consultation with my Generals and military experts, . . . the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military.” (2d Am. Compl. ¶ 147). On August 25, 2017, President Trump formalized the policy announced in his Tweets in a “Memorandum for the Secretary of Defense and the Secretary of Homeland Security” (the “August 2017 Memorandum” or the “Ban”). (Id. ¶ 158; Compl. Ex. C [“Aug. 2017 Mem.”], ECF No. 1-4). The August 2017 Memorandum dictated a “return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016” (the “Retention Directive”) effective January 1, 2018, (Aug. 2017 Mem. §§ 1(b), 2(a), 3), and directed the military to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018” (the “Accession Directive”), (id. § 2(a)). In addition, the August 2017 Memorandum prohibited “all use of DoD or [Department of Homeland Security] resources to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex” effective March 23, 2018 (the “Sex-Reassignment Surgery Directive”). (Id. §§ 1(b), 2(b), 3). The August 2017 Memorandum also tasked the Secretary of Defense, in consultation with the Secretary of Homeland Security, with developing a plan to implement these directives (the “Implementation Plan”) by February 21, 2018. (Id. § 3).

         4. The Implementation Plan

         On September 14, 2017, Secretary Mattis issued Terms of Reference, 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 (the “Panel”) 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; Pls.' Opp'n Defs.' Mot. Dissolve Prelim. Inj. Ex. 4 at 1-2, ECF No. 139-5).[11] The Panel held thirteen meetings over the course of ninety days, conferring with military and civilian medical professionals, commanders of transgender service members, and transgender service members. (Defs.' Mot. Dissolve Prelim. Inj. Ex. 2 [“DoD Report”] at 18, ECF No. 120-2). On January 11, 2018, the Panel provided Secretary Mattis with its recommendations. (Pls.' Mem. Opp'n Defs.' Mot. Dismiss Summ. J. & Cross-Mot. [“Pls.' Opp'n & Cross-Mot.”] at 10, ECF No. 163-2).

         On February 22, 2018, Secretary Mattis submitted to President Trump the Implementation Plan, which recommended changes to the transgender service policy set forth in the August 2017 Memorandum. (2d Am. Compl. ¶¶ 176-77). The Implementation Plan consisted of a “short memo” (the “Mattis Memorandum”) and a forty-four page “unsigned document” entitled “Department of Defense Report and Recommendations on Military Service by Transgender Persons” (the “DoD Report”). (Id. ¶ 176).

         The Implementation Plan recommended adopting a policy that: (1) transgender individuals who “require or have undergone gender transition” are disqualified from military service, except under certain “limited circumstances, ” (Id. ¶ 177; Defs.' Mot. Dissolve Prelim. Inj. Ex. 1 [“Mattis Mem.”] at 2, ECF No. 120-1; DoD Report at 32); and (2) all other transgender individuals “without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, ” may serve only “in their biological sex.” (2d Am. Compl. ¶ 177; Mattis Mem. at 2; DoD Report at 4). There are three “limited circumstances” under which transgender individuals who require or have undergone transition may serve in the military. First, they may serve “if they have been stable for [thirty-six] months in their biological sex prior to accession.” (Mattis Mem. at 2; see also DoD Report at 42). Second, if a service member is diagnosed with gender dysphoria after acceding into the military, the individual “may be retained if they do not require a change of gender and remain deployable within the applicable retention standards.” (Mattis Mem. at 2; see also DoD Report at 42). Third, service members diagnosed with gender dysphoria between the effective date of the Open Service Directive and the effective date of the Implementation Plan may “continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria” (the “Grandfather Provision”). (Mattis Mem. at 2; see also DoD Report at 42). The Grandfather Provision further states that it “is and should be deemed severable” from the Implementation Plan “should [DoD's] decision to exempt these Service members be used by a court as a basis for invalidating the entire policy.” (2d Am. Compl. ¶ 178; DoD Report at 43). In addition, transgender service members serving under the Grandfather Provision must “not be deemed to be non-deployable for more than [twelve] months or for a period of time in excess of that established by Service policy (which may be less than [twelve] months).” (2d Am. Compl. ¶ 215; DoD Report at 6).

         On March 23, 2018, President Trump issued a second memorandum (the “March 2018 Memorandum”) that “revoke[s]” the August 2017 Memorandum and permits the Secretary of Defense to proceed with the Implementation Plan. (2d Am. Compl. ¶¶ 12, 179-80 (alteration in original); Defs.' Mot. Dissolve Prelim. Inj. Ex. 3 [“Mar. 2018 Mem.”] at 1, ECF No. 120-3).

         B. Procedural Background

         On August 28, 2017, six transgender individuals who are current service members- Plaintiffs Brock Stone, Kate Cole, John Doe 1, Seven Ero George, Teagan Gilbert, and Tommie Parker (collectively, the “Current Service Members”)-and the American Civil Liberties Union of Maryland, Inc. (the “ACLU”) sued Defendants. (ECF No. 1). On September 14, 2017, Plaintiffs filed a First Amended Complaint. (ECF No. 39). In the First Amended Complaint, Plaintiffs alleged that the Ban violates: (1) the Equal Protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution; (2) Fifth Amendment substantive due process; and (3) 10 U.S.C. § 1074 (2018), which entitles current and certain former members of the military to medical care. (1st Am. Compl. at 32, 36, 38, ECF No. 39).

         Also on September 14, 2017, Plaintiffs filed a Motion for a Preliminary Injunction. (ECF No. 40). On November 21, 2017, this Court granted Plaintiffs' Motion for Preliminary Injunction, concluding that Plaintiffs had established a likelihood of success on the merits of their equal protection claim.[12] (Nov. 21, 2017 Mem. & Order at 52-53, ECF No. 85). The same day, this Court issued a Preliminary Injunction, enjoining the August 2017 Memorandum's Accession Directive, Retention Directive, and Sex-Reassignment Surgery Directive. (Prelim. Inj. at 1-2, ECF No. 84).[13]

         Defendants filed an Answer to Plaintiffs' First Amended Complaint on December 15, 2017. (ECF No. 96). On March 1, 2018, Defendants filed their Motion for Judgment on the Pleadings. (ECF No. 115). Plaintiffs filed an Opposition on March 9, 2018. (ECF No. 117). On March 16, 2018, Defendants filed a Reply. (ECF No. 118).

         On March 23, 2018, Defendants filed their Motion to Dissolve.[14] (ECF No. 120). Plaintiffs filed an Opposition on April 23, 2018. (ECF No. 139). On May 11, 2018, Defendants filed a Reply. (ECF No. 159).

         On April 27, 2018, Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief (the “Second Amended Complaint”), which adds six prospective service members as Plaintiffs: Teddy D'Atri, Ryan Wood, Niko Branco, John Doe 2, Jane Roe 1, and John Doe 3, by his next friends and mother and father, Jane Roe 2 and John Doe 4 (collectively, the “Prospective Service Members”; together with “Current Service Members, ” the “Individual Plaintiffs”). (2d Am. Compl. ¶ 4). The Second Amended Complaint also adds allegations regarding the preliminary injunctions this and other federal district courts issued and the Implementation Plan, (id. ¶¶ 173-86, 194, 199, 201-04, 208- 09, 214-16, 220, 224-25, 236), and removes Count III, the 10 U.S.C. § 1974 claim.

         On May 11, 2018, Defendants filed their Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint or, in the Alternative, Defendants' Motion for Summary Judgment. (ECF No. 158). Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment on May 25, 2018. (ECF No. 163). Defendants filed their Reply and Opposition to Plaintiffs' Cross-Motion for Summary Judgment on June 15, 2018. (ECF No. 176). On July 6, 2018, Plaintiffs filed their Reply in support of their Cross-Motion for Summary Judgment. (ECF No. 190). Defendants filed a Surreply to Plaintiffs' Cross-Motion for Summary Judgment on August 1, 2018.[15] (ECF No. 203).

         On March 7, 2019, the Court entered an Order staying the Preliminary Injunction in this case. (ECF No. 249). The policy, as set forth in the Implementation Plan, went into effect on April 12, 2019. (See Mar. 8, 2019 Notice, ECF No. 250).

         C. Discovery Disputes

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

         On August 14, 2018, the USMJ issued a Memorandum Opinion and Order on these Motions. (Aug. 14, 2018 Mem. Op., ECF No. 204; Aug. 14, 2018 Order, ECF No. 205). The USMJ granted Plaintiffs' Motion to Compel and dismissed Plaintiffs' Motion for a Judicial Determination of Privilege Claims as moot. (Aug. 14, 2018 Mem. Op. at 11; Aug. 14, 2018 Order ¶¶ 1-3). The USMJ also granted Defendants' Motion for a Protective Order as to the President, but denied the Protective Order as to those who communicate with the President. (Aug. 14, 2018 Mem. Op. at 11; Aug. 14, 2018 Order ¶¶ 1-3). Defendants filed Objections to the USMJ's Memorandum Opinion and Order and moved to stay the Order. (ECF Nos. 208, 209). On September 10, 2018, at the request of the parties, the Court entered an Order suspending discovery-related deadlines. (Sept. 10, 2018 Order, ECF No. 213).

         On November 30, 2018, the Court overruled Defendants' Objections to the USMJ's Memorandum Opinion and Order. (Nov. 30, 2018 Mem. Op. at 22, ECF No. 227; Nov. 30, 2018 Order at 1, ECF No. 228). The Court also stayed compliance with the USMJ's Order pending the United States Court of Appeals for the Ninth Circuit's resolution of a similar discovery dispute in Karnoski v. Trump, No. C17-1297-MJP (W.D.Wash.). (Nov. 30, 2018 Mem. Op. at 22; Nov. 30, 2018 Order at 1).

         II.DISCUSSION

         A. Motion to Dissolve

         Defendants do not state under which Federal Rule of Civil Procedure they seek dissolution of the Preliminary Injunction. Even though a preliminary injunction is not a “final order, ” courts have applied Rule 60(b)(5) to dissolve or modify preliminary injunctions. See Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 60 F.3d 823, 1995 WL 406612, at *2-3 (4th Cir. 1995) (unpublished table opinion); Centennial Broad., LLC v. Burns, 433 F.Supp.2d 730, 733 (W.D.Va. 2006) (footnote omitted) (noting that “[a]lthough a preliminary injunction is not a ‘final' order or judgment for the purposes of Rule 60(b), courts nonetheless apply the general equitable principles set forth in Rule 60(b)(5)”). Rule 60(b)(5) provides for relief from a final judgment “if it is no longer equitable that the judgment should have prospective application.” A party seeking dissolution of a preliminary injunction as “no longer equitable” bears the burden of establishing that “a significant change in circumstances” warrants dissolution of the preliminary injunction. L.J. v. Wilbon, 633 F.3d 297, 304-05 (4th Cir. 2011) (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992)). To satisfy this burden, the party must establish “a significant change either in factual conditions or in law” that makes “enforcement of the [preliminary injunction]. . . detrimental to the public interest.” Id. at 305 (quoting Rufo, 502 U.S. at 384). The Court's analysis under Rule 60(b)(5) is a “flexible” one and it “focuses on the particular facts of the case.” United States v. Welsh, No. 5:11-HC-2209-D, 2017 WL 7805581, at *5 (E.D. N.C. Mar. 16, 2017) (citing Thompson v. HUD, 404 F.3d 821, 830 (4th Cir. 2005)), aff'd, 879 F.3d 530 (4th Cir. 2018), cert. denied, 139 S.Ct. 1168 (2019).

         Defendants maintain that the Court should dissolve the Preliminary Injunction because the President has revoked the August 2017 Memorandum, and therefore, Plaintiffs can no longer establish the equitable factors for issuing a preliminary injunction. Plaintiffs counter that the Implementation Plan is merely the formal execution of the Ban and not a change in circumstances that warrants dissolution of the Preliminary Injunction.[16] The Court is persuaded that Defendants have established a significant change in circumstances for at least two reasons.

         First, the Implementation Plan does not suffer from the same procedural defects as the August 2017 Memorandum. Plaintiffs take issue with the Ban because President Trump allegedly did not consult with military officials before he announced it on Twitter and formalized it in the August 2017 Memorandum. This is not the case with the Implementation Plan. The Panel conducted a study of transgender military service that reviewed evidence collected while the Open Service Directive was in place and drafted a report with the results of its study. (See DoD Report). Secretary Mattis relied on the Panel's report-the DoD Report-in drafting his February 2018 Memorandum to President Trump describing the Implementation Plan. Then, in the March 2018 Memorandum, President Trump rescinded the August 2017 Memorandum and authorized the military to carry out the Implementation Plan. Although the parties dispute whether the Panel and its study were truly independent, the evidence in the record reflects that the Implementation Plan was at least a product of military judgment, unlike President Trump's Tweets and the August 2017 Memorandum.

         Second, despite Plaintiffs' characterization of the Implementation Plan as an “execution of” the Ban, this is not the case. The Ban did just that-barred all transgender individuals from serving in the military. The Implementation Plan, by contrast, contains provisions that permit some transgender individuals who have already enlisted to continue to serve and receive transition-related medical treatment. It also contains provisions that permit transgender individuals who intend to enlist to serve, as long as they do so in their biological sex. This is not to say that the Implementation Plan does not bar a significant number of transgender individuals from serving in the military. Rather, this is to acknowledge that there are differences between the August 2017 Memorandum and the Implementation Plan. Indeed, the Preliminary Injunction enjoined the Retention Directive, Accession Directive, and Sex-Reassignment Surgery Directive in the August 2017 Memorandum; these directives are absent from the Implementation Plan. Thus, while the Implementation Plan bars many transgender individuals from military service, it is not the blanket transgender service ban set forth in the August 2017 Memorandum. Thus, the Court concludes that Defendants have established a significant change in the factual circumstances.

         Because the August 2017 Memorandum is no longer in force, it is not in the public interest to continue enjoining directives that no longer exist. Cf. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 911 F.2d 1331, 1335 (9th Cir. 1990) (in the context of mootness, concluding that “[i]t would be pointless to enjoin enforcement of a regional plan that is no longer in effect.”). The Court, therefore, concludes that dissolution of the Preliminary Injunction is warranted. Accordingly, the Court will grant Defendants' Motion and dissolve the Preliminary Injunction.

         B. Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint, or, in the Alternative, Defendants' Motion for Summary Judgment & Plaintiffs' Cross-Motion for Summary Judgment

         Defendants advance two principal arguments for why the Court should dismiss Plaintiffs' claims or grant summary judgment in their favor. First, the Court lacks subject matter jurisdiction over Plaintiffs' claims because they lack standing and their challenge to the August 2017 Memorandum is moot. Second, Defendants are entitled to a highly deferential form of review, and therefore, Plaintiffs fail to state a plausible claim for relief, or, alternatively, Defendants are entitled to summary judgment in their favor under such review. The Court first addresses the threshold issues of mootness and standing.[17]

         1. Subject-Matter Jurisdiction

         a. Rule 12(b)(1) Standard of Review

         Rule 12(b)(1) governs motions to dismiss for mootness and for lack of standing, which pertain to subject matter jurisdiction. See CGM, LLC v. BellSouth Telecomm's, Inc., 664 F.3d 46, 52 (4th Cir. 2011); Akers v. Md. State Educ. Ass'n, 376 F.Supp.3d 563, 569 (D.Md. 2019). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction “challenges a court's authority to hear the matter brought by a complaint.” Akers, 376 F.Supp.3d at 569. Under Rule 12(b)(1), “the plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction.” Id. (first citing Demetres v. E. W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); and then citing Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)).

         Defendants challenging a complaint under Rule 12(b)(1) may advance a “facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting ‘that the jurisdictional allegations of the complaint [are] not true.'” Hasley v. Ward Mfg., LLC, No. RDB-13-1607, 2014 WL 3368050, at *1 (D.Md. July 8, 2014) (alteration in original) (quoting Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)); see also Wikimedia Found. v. NSA, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017)).

         When, as here, the defendants raise a largely facial challenge, [18] the Court affords the plaintiffs “the same procedural protection” they would receive on a Rule 12(b)(6) motion to dismiss. Wikimedia Found., 857 F.3d at 208 (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). As such, the Court takes the facts alleged in the complaint as true and denies the motion if the complaint alleges sufficient facts to invoke subject matter jurisdiction. See id.

         With a factual challenge, which Defendants also raise, the plaintiffs bear the burden of proving the facts supporting subject matter jurisdiction by a preponderance of the evidence. U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). In determining whether the plaintiffs have met this burden, the Court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams, 697 F.2d at 1219). Nevertheless, the Court applies “the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id. (citing Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987)). The movants “should prevail only if the material jurisdictional facts are not in dispute and the [movants are] entitled to prevail as a matter of law.” Id. (citing Trentacosta, 813 F.2d at 1558). Unlike under the summary judgment standard, however, the Court is permitted to decide disputed issues of fact, Kerns, 585 F.3d at 192, and weigh the evidence, Adams, 697 F.2d at 1219.

         b. Analysis

         Article III of the Constitution limits the judicial authority of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1; Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547, as revised, (May 24, 2016). Thus, the threshold question in every federal case is whether the court has authority under Article III to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498 (1975). Both mootness and standing go to whether an Article III case or controversy exists in a given case. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).

         i. Mootness

         At bottom, the Court concludes that Plaintiffs' challenge to the August 2017 Memorandum is moot. The Court will, therefore, dismiss Plaintiffs' claims to the extent they allege that the August 2017 Memorandum violated their constitutional rights.

         “[T]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction, ” which extends only to actual cases or controversies. Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (alteration in original) (first quoting Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011); and then citing U.S. Const. art. III, § 2). In other words, “[w]hen a case or controversy ceases to exist-either due to a change in the facts or the law-‘the litigation is moot, and the court's subject matter jurisdiction ceases to exist also.'” Id. (quoting S.C. Coastal Conservation League v. U.S. Army Corps of Eng'rs, 789 F.3d 475, 482 (4th Cir. 2015)). A case is moot “when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 191 (4th Cir. 2018) (quoting Simmons, 634 F.3d at 763), reh'g denied, (Jan. 28, 2019). “Mootness has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).'” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)).

         Defendants maintain that because President Trump revoked the August 2017 Memorandum, Plaintiffs' challenge to it is moot. Plaintiffs counter that because the Implementation Plan is “sufficiently similar” to the August 2017 Memorandum and “the challenged conduct continues, ” their claims are not moot. (Pls.' Opp'n & Cross-Mot. at 19). The Court does not find Plaintiffs' argument persuasive for at least two reasons.

         First, as discussed above, the Implementation Plan permits at least some transgender individuals to serve in the military, unlike the August 2017 Memorandum, which set forth an outright ban on transgender military service. For example, the Implementation Plan allows transgender individuals who do not have a “history or diagnosis of gender dysphoria” and “who are otherwise qualified for service” to serve “in their biological sex.” (2d Am. Compl. ¶ 177; Mattis Mem. at 2; DoD Report at 4). Transgender individuals who require transition may serve in the military “if they have been stable for [thirty-six] months in their biological sex prior to accession.” (2d Am. Compl. ¶¶ 11, 176-78; Mattis Mem. at 2; DoD Report at 42). Further, service members who were diagnosed with gender dysphoria between the effective date of the Open Service Directive and the effective date of the Implementation Plan may “continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria” under the Grandfather Provision. (2d Am. Compl. ¶¶ 11, 176-78; Mattis Mem. at 2). Again, this is not to say that the Implementation Plan does not bar a significant number of transgender individuals from serving in the military. This is to acknowledge that the August 2017 Memorandum-which banned all transgender military service-and the Implementation Plan are not one and the same.

         Second, the March 2018 Memorandum “revoke[s]” the August 2017 Memorandum. (2d Am. Compl. ¶ 180 (alteration in original); Mar. 2018 Mem. at 1). It also “acknowledged receipt” of the Implementation Plan and authorized the Secretary of Defense and the Secretary of Homeland Security “to proceed with plans for implementation.” (2d Am. Compl. ¶ 179; Mar. 2018 Mem. at 1). And, on April 12, 2019, the Implementation Plan went into effect. (See Mar. 8, 2019 Notice). Thus, Defendants' challenged conduct-at least with regard to the August 2017 Memorandum-does not continue.

         Nevertheless, Plaintiffs contend that Defendants' “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (Pls.' Opp'n & Cross-Mot. at 20) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)). Under the voluntary cessation exception to the mootness doctrine, Plaintiffs maintain, Defendants bear the burden of establishing with an absolute certainty that the challenged conduct cannot be expected to recur, and that Defendants fail to meet this standard with regard to the Accession, Retention, and Sex-Reassignment Surgery Directives.

         The voluntary cessation exception to the mootness doctrine prevents a defendant from “engag[ing] in unlawful conduct, stop[ping] when sued to have the case declared moot, then pick[ing] up where he left off.” Deal, 911 F.3d at 192 (alterations in original) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)); see also Porter, 852 F.3d at 364 (explaining that the voluntary cessation exception seeks to prevent “a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after” (quoting ACLU of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54-55 (1st Cir. 2013)). As a result, defendants asserting that their voluntary compliance moots a case bear the “formidable burden” of demonstrating that it is “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Porter, 852 F.3d at 364 (quoting Laidlaw, 528 U.S. at 190); see also Deal, 911 F.3d at 191 (“[A] party asserting mootness bears a ‘heavy burden of persuading' the court that ‘subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'” (quoting Laidlaw, 528 U.S. at 189)).

         The United States Court of Appeals for the Fourth Circuit has held that “a governmental entity's change of policy renders a challenge moot when the governmental entity ‘has not asserted its right to enforce [the challenged policy] at any future time.'” Porter, 852 F.3d at 364 (quoting Telco Commc'ns, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989)). The Fourth Circuit has also held that “statutory changes that discontinue a challenged practice are ‘usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.'” Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000) (quoting Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994)). If, however, the defendants “openly announce[ ] [their] intention to reenact precisely the same provision after a lawsuit is dismissed, a court may still have jurisdiction despite statutory changes discontinuing the challenged conduct.” Franco v. City of Seat Pleasant, No. GJH-18-2027, 2019 WL 1317340, at *4 (D.Md. Mar. 21, 2019) (internal quotation marks omitted) (quoting Valero, 211 F.3d at 116).

         In this case, Defendants have met their burden. President Trump revoked the August 2017 Memorandum in his March 2018 Memorandum. The March 2018 Memorandum also authorized the military to proceed with the Implementation Plan, which does not contain any of the directives from the August 2017 Memorandum, and the Implementation Plan went into effect in April 2019. See Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 640 (4th Cir.), as amended, (May 31, 2017), as amended, (June 15, 2017) (concluding that President Trump's new order restricting entry into the United States of individuals from certain countries “revoked the earlier order and rendered moot the challenge to the earlier order”), vacated and remanded sub nom. Trump v. Int'l Refugee Assistance, 138 S.Ct. 353 (2017).[19]

         To support their argument that Defendants have failed to meet their burden, Plaintiffs point to the Grandfather Provision, which is severable “should [the DoD's] decision to exempt these [s]ervice members be used by a court as a basis for invalidating the entire policy.” (DoD Report at 43). Plaintiffs' argument misses the mark. Plaintiffs narrowly focus on the Grandfather Provision instead of on the change in policy as a whole. Further, the fact that the Grandfather Provision is severable from the rest of the Implementation Plan demonstrates Defendants' intent to keep the other parts of the Implementation Plan, even if they cannot retain that provision.

         Plaintiffs also contend that Defendants have failed to carry their burden because they have not made it “absolutely clear” that President Trump will not reissue the Ban. While President Trump retains the power to reinstitute the Ban, he has not “openly announce[d]” his intention to do so. See Franco, 2019 WL 1317340, at *4 (quoting Valero, 211 F.3d at 116) (concluding that the plaintiff's challenge to a special tax seeking declaratory and injunctive relief was moot because, “[a]lthough Defendants may have ‘the power to reenact' the special tax ‘after the lawsuit is dismissed,' they have not announced any intention to do so”).

         In sum, the Court concludes that Plaintiffs' claims challenging the constitutionality of the August 2017 Memorandum are moot. Accordingly, the Court will grant Defendants' Motion to the extent it seeks to dismiss those claims.

         ii. Standing

         In brief, the Court concludes that, except for George, Current Service Members lack standing to challenge the Implementation Plan, and will therefore dismiss their claims without prejudice. All Prospective Service Members, on the other hand, have standing to challenge the Implementation Plan, and the Court will not dismiss their claims on this basis.

         Standing's “irreducible constitutional minimum” comprises three prongs. Spokeo, 136 S.Ct. at 1547 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. The party invoking federal jurisdiction bears the burden of establishing standing. Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). At the pleading stage, plausible factual ...


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