Federal Judge Losing Patience on DOJ Trans Military Discovery

US District Judge Marsha Pechman.

US District Judge Marsha Pechman, on February 7, issued yet another in a series of discovery orders in Karnoski v. Trump, one of the four federal court challenges to the constitutionality of President Donald Trump’s transgender military service ban.

Pechman, backed up by a Ninth Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the Fifth Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.

Since the Supreme Court stayed Pechman’s preliminary injunction (and ultimately, preliminary injunctions from three other courts were lifted, as well), the trans ban went into effect last April while the litigation continues. The policy clearly discriminates against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a ruling on the merits against the government by stretching out discovery as long as possible.

The district courts have already determined that a number of claims of deliberative process privilege asserted by the government are invalid in this suit, where the question boils down to whether the ban is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But the DOJ keeps stalling.

Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” of part of her order and a “stay pending appeal.” Every discovery appeal to the Ninth Circuit, which has shown no sympathy for the government’s position, nevertheless builds in several more months of delay.

Pechman is having none of it: Her February 7 order provides some “clarification” – which sounds from her description in this opinion as the DOJ not really needing clarification after the December 10 conference she held with the parties, which she quotes from the transcript by the court reporter. And she denies the stay.

“Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.”

She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.

Ryan Karnoski and co-plaintiffs are represented by Lambda Legal and the Modern Military Association, a group serving LGBTQ service members, veterans, and their families.