United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on four Motions: (1) Defendants
President Donald J. Trump, Secretary of Defense Mark T.
Esper,  Acting Secretary of the Army Ryan
McCarthy,  Acting Secretary of the Navy Richard V.
Spencer, Secretary of the Air Force Heather Wilson, Acting
Secretary of Homeland Security Kevin McAleenan,
Commandant of the U.S. Coast Guard Karl L.
Schultz's 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' Cross-Motion for Summary
Judgment (ECF No. 163). 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
Pre-June 2016 Transgender Military Service Policy
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).
The Open Service Directive
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 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). 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.
The President's Tweets and August 2017
26, 2017, President Trump published a series of
Tweets 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).
The Implementation Plan
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). 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).
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).
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).
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.
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).
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. (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).
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
March 23, 2018, Defendants filed their Motion to
Dissolve. (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).
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.
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. (ECF No. 203).
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).
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).
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).
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).
Motion to Dissolve
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).
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. The Court is persuaded that Defendants
have established a significant change in circumstances for at
least two reasons.
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.
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
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
Defendants' Motion to Dismiss Plaintiffs' Second
Amended Complaint, or, in the
Alternative, Defendants' Motion for Summary Judgment
& Plaintiffs' Cross-Motion for Summary
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.
Rule 12(b)(1) Standard of Review
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)).
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)).
as here, the defendants raise a largely facial challenge,
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.
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.
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
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
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)).
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.
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.
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.
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.
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
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).
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).
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.
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
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.
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.
“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