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D.C. Circuit Amicus Brief USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 1 of 32 [NOT YET SCHEDULED FOR ORAL ARGUMENT] No. 17-5267 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________ JANE DOE 1 et al., Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States, et al. Defendants-Appellants _________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________ MOTION FOR LEAVE TO FILE BRIEF OF RETIRED MILITARY OFFICERS AND FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF APPELLEES’ RESPONSE TO APPELLANTS’ EMERGENCY MOTION _________________________ Harold Hongju Koh Phillip Spector Matthew S. Blumenthal MESSING & SPECTOR LLP RULE OF LAW CLINIC 1200 Steuart Street #2112 Yale Law School Baltimore, MD 21230 127 Wall Street, P.O. Box 208215 202-277-8173 New Haven, CT 06520-8215 203-432-4932 [email protected] Counsel for Amici Curiae USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 2 of 32 Pursuant to Federal Rule of Appellate Procedure 29(a)(3), the proposed amici, the group of former national security officials identified below, hereby submit this Motion for Leave to file the accompanying amicus curiae brief in support of appellants’ emergency motion for administrative stay and partial stay pending appeal. Amici are retired military officers and former national security officials, who have collectively devoted countless decades to strengthening U.S. security interests. They have been responsible for the readiness of the service members under their command in times of hostilities and peace, and supervised and participated in policy processes involving military readiness and personnel at the senior-most levels of the U.S. government, across the administrations of both major political parties: 1. Brigadier General (Ret.) Clara L. Adams-Ender, USA 2. Brigadier General Ricardo Aponte, USAF (Ret.) 3. Vice Admiral Donald Arthur, USN (Ret.) 4. Major General (Ret.) Donna Barbisch, USA 5. Michael R. Carpenter served as Deputy Assistant Secretary of Defense for Russia, Ukraine, Eurasia from 2015 to 2017. 6. Brigadier General Stephen A. Cheney, USMC (Ret.) 7. Brigadier General (Ret.) Julia Cleckley, USA 0 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 3 of 32 8. Derek Chollet served as Assistant Secretary of Defense for International Security Affairs from 2012 to 2015. 9. Rear Admiral Christopher Cole, USN (Ret.) 10. Major General J. Gary Cooper, USMC (Ret.) 11. Rudy DeLeon served as Deputy Secretary of Defense from 2000 to 2001. Previously, he served as Under Secretary of Defense for Personnel and Readiness from 1997 to 2000. 12. Rear Admiral Jay A. DeLoach, USN (Ret.) 13. Brigadier General John W. Douglass, USAF (Ret.) served as Assistant Secretary of the Navy for Research, Development and Acquisition from 1995 to 1998. 14. Major General (Ret.) Paul D. Eaton, USA 15. Major General (Ret.) Mari K. Eder, USA 16. Andrew Exum served as Deputy Assistant Secretary of Defense for Middle East Policy from 2015 to 2017. 17. Brigadier General (Ret.) Evelyn "Pat" Foote, USA 18. Lieutenant General Walter E. Gaskin, USMC (Ret.) 19. Vice Admiral Kevin P. Green, USN (Ret.) 20. General Michael Hayden, USAF (Ret.), served as Director of the Central Intelligence Agency from 2006 to 2009, and Director of the National Security Agency from 1995 to 2005. 21. Chuck Hagel served as Secretary of Defense from 2013 to 2015. From 1997 to 2009, he served as U.S. Senator for Nebraska. 22. Kathleen Hicks served as Principal Deputy Under Secretary of Policy from 2012 to 2013. 1 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 4 of 32 23. Brigadier General (Ret.) David R. Irvine, USA 24. Lieutenant General Arlen D. Jameson (USAF) (Ret.), served as the Deputy Commander of U.S. Strategic Command. 25. Brigadier General (Ret.) John H. Johns, USA 26. Colin H. Kahl served as Deputy Assistant to the President and National Security Advisor to the Vice President. Previously, he served as Deputy Assistant Secretary of Defense for the Middle East from 2009 to 2011. 27. Rear Admiral Gene Kendall, USN (Ret.) 28. Lieutenant General (Ret.) Claudia Kennedy, USA 29. Major General (Ret.) Dennis Laich, USA 30. Major General (Ret.) Randy Manner, USA 31. Brigadier General (Ret.) Carlos E. Martinez, USAF (Ret.) 32. General (Ret.) Stanley A. McChrystal, USA, served as Commander of Joint Special Operations Command from 2003 to 2008, and Commander of the International Security Assistance Force and Commander, U.S. Forces Afghanistan from 2009 to 2010. 33. Kelly E. Magsamen served as Principal Deputy Assistant Secretary of Defense for Asian and Pacific Security Affairs from 2014 to 2017. 34. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency. 35. Major General (Ret.) Gale S. Pollock, CRNA, FACHE, FAAN. 36. Rear Admiral Harold Robinson, USN (Ret.) 37. Brigadier General (Ret.) John M. Schuster, USA 38. David Shear served as the Assistant Secretary of Defense for Asian and Pacific Security Affairs from July 2014 to June 2016. 2 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 5 of 32 39. Rear Admiral Michael E. Smith, USN (Ret.) 40. Brigadier General (Ret.) Paul Gregory Smith, USA 41. Julianne Smith served as Deputy National Security Advisor to the Vice President of the United States from 2012 to 2013. Previously, she served as the Principal Director for European and NATO Policy in the Office of the Secretary of Defense in the Pentagon. 42. Admiral James Stavridis, USN (Ret.), served as the 16th Supreme Allied Commander at NATO. 43. Brigadier General (Ret.) Marianne Watson, USA 44. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015. 45. Christine E. Wormuth served as Under Secretary of Defense for Policy from 2014 to 2016. 46. Rear Admiral Dick Young, USN (Ret.) Amici greatly appreciate and value military expertise and the need for the judiciary to defer to it when the circumstances demand. They file this submission to offer their perspective that this is not a case where such deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent governing how the U.S. military approaches major personnel policy changes. Furthermore, amici contend that the categorical exclusion of transgender individuals on the basis of group 3 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 6 of 32 characteristics rather than individual fitness to serve is inimical to the national security interests of the United States. Amici’s perspective is unique, and forged from their decades-long careers of service to their country. Amici previously submitted a motion for leave to file an amicus brief before the United States District Court for the District of Maryland in Stone v. Trump, No. 1:17-cv-02459 (D. Md. Oct. 27, 2017), which challenged the same Memorandum at issue in this case. The Court accepted the motion, and quoted from amici’s brief in its opinion granting a preliminary injunction to the plaintiffs in the case. Stone v. Trump, No. MJG-17-2459, 2017 WL 5589122 (D.Md. Nov. 21, 2017) Counsel for amici have sought and received consent from counsel for plaintiff-appellees on Thursday, December 14, and received notice from counsel for defendant-appellants that the U.S. Government did not object to amici’s participation on Friday, December 15. Due to the expedited nature of these proceedings, and the fact that amici are seeking to provide their views on a motion for an emergency stay rather than on the merits, amici file this motion seeking the Court’s leave to offer the attached amicus brief. CONCLUSION For the reasons stated above, the proposed amici respectfully request that this Court grant them leave to file the attached amicus curiae brief. 4 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 7 of 32 Respectfully submitted, __/s/ Harold Hongju Koh_ D.C. Circuit Bar No. 31446 Harold Hongju Koh Phillip Spector Matthew S. Blumenthal MESSING & SPECTOR LLP RULE OF LAW CLINIC 1200 Steuart Street #2112 Yale Law School Baltimore, MD 21230 127 Wall Street, P.O. Box 208215 202-277-8173 New Haven, CT 06520-8215 203-464-1801 Counsel for Amici Curiae 5 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 8 of 32 6 USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 9 of 32 [NOT YET SCHEDULED FOR ORAL ARGUMENT] No. 17-5267 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________ JANE DOE 1 et al., Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States, et al. Defendants-Appellants _________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________ BRIEF OF RETIRED MILITARY OFFICERS AND FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF APPELLEES’ RESPONSE TO APPELLANTS’ EMERGENCY MOTION FOR ADMINISTRATIVE STAY AND PARTIAL STAY PENDING APPEAL _________________________ Harold Hongju Koh Phillip Spector Matthew S. Blumenthal MESSING & SPECTOR LLP RULE OF LAW CLINIC 1200 Steuart Street #2112 Yale Law School Baltimore, MD 21230 127 Wall Street, P.O. Box 208215 202-277-8173 New Haven, CT 06520-8215 203-432-4932 [email protected] Counsel for Amici Curiae i USCA Case #17-5267 Document #1709085 Filed: 12/15/2017 Page 10 of 32 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTEREST OF AMICI CURIAE .............................................................................. 1 ARGUMENT ............................................................................................................ 1 I. The President’s actions departed sharply from decades of practice involving similar military policy changes .....................................................
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