DOE et al v. TRUMP et al

Filing 160

MEMORANDUM OPINION Regarding 159 ORDER DENYING Defendants' 115 Motion to Dismiss Plaintiffs' Second Amended Complaint or, in the Alternative, Defendants' Motion for Summary Judgment, and DENYING Plaintiffs' 131 Cross-Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 8/24/2018. (lcckk3)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 2, et al.,
Plaintiffs
v.

Civil Action No. 17-1597 (CKK)

JAMES N. MATTIS, et al.,
Defendants
MEMORANDUM OPINION
(August 24, 2018)
On July 26, 2017, President Donald J. Trump issued a statement via Twitter announcing
that “the United States Government will not accept or allow transgender individuals to serve in
any capacity in the U.S. Military.” A formal Presidential Memorandum followed on August 25,
2017. Before the 2017 Presidential Memorandum, the Department of Defense had announced
that openly transgender individuals would be allowed to enlist in the military, effective January
1, 2018, and had prohibited the discharge of service members based solely on their gender
identities. The 2017 Presidential Memorandum reversed these policies. It indefinitely extended
the prohibition against transgender individuals entering the military (a process formally referred
to as “accession”), and required the military to authorize the discharge of transgender service
members. The President ordered Secretary of Defense James N. Mattis to submit a plan for
implementing the policy directives of the 2017 Presidential Memorandum by February 2018.
Plaintiffs filed suit and sought preliminary injunctive relief, which the Court granted.
Currently pending before the Court are Defendants’ [115] Motion to Dismiss Plaintiffs’
Second Amended Complaint or, in the Alternative, Defendants’ Motion for Summary Judgment,
and Plaintiffs’ [131] Cross-Motion for Summary Judgment. The Court issued a Memorandum
Opinion and Order denying Defendants’ Motion to the extent that it sought the dismissal of
Plaintiffs’ claims on mootness and standing grounds. As an alternative form of relief,
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Defendants’ Motion also seeks summary judgment. Plaintiffs oppose Defendants’ motion for
summary judgment, and have filed their own cross-motion for summary judgment. However,
Plaintiffs also ask this Court to defer ruling on summary judgment because Plaintiffs have not
been able to conclude the discovery process to develop a record, due to Defendants’ overly broad
assertions of privilege.
Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a
whole, the Court DENIES both parties’ motions for summary judgment. Defendants claim that
their decisions regarding transgender military service are owed great deference because they are
the product of extensive deliberation, study and review. However, at the same time, Defendants
have withheld information concerning this deliberation, study and review from Plaintiffs. As a
result, there undeniably are factual disputes in this case. Among other areas of dispute, the
parties disagree about the nature of the process that resulted in the challenged policies. The facts
about that process are clearly material. They affect the threshold question that the Court must
answer before assessing the constitutionality of Defendants’ policy: what level of scrutiny the
Court should apply. Because genuine disputes of material fact exist, summary judgment for
either party cannot be entered. Instead, the Court will grant Plaintiffs’ request to continue with
discovery.

1

The Court’s consideration has focused on the following documents:
• Defs.’ Mem. in Supp. of Mot. to Dismiss Pls.’ 2d Am. Compl., or, in the Alternative,
Defs.’ Mot. for Summ. J., ECF No. 115 (“Defs.’ Mem.”);
• Pls.’ Opp’n to Defs.’ Mot. for Summ. J. and Cross-Mot. for Summ. J., ECF No. 131-1
(“Pls.’ Opp’n and Cross-Mot.”);
• Defs.’ Reply in Supp. of their Mot. to Dismiss Pls.’ 2d Am. Compl., or, in the Alternative,
for Summ. J., and Opp’n to Pls.’ Cross-Mot. for Summ. J., ECF No. 138 (“Defs.’
Reply”); and
• Pls.’ Reply in Support of their Cross-Mot. for Summ. J., ECF No. 149 (“Pls.’ Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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I. BACKGROUND
Plaintiffs are current and aspiring transgender service members. Many have years of
experience in the military. Some have decades. They have been deployed on active duty in Iraq
and Afghanistan. They have and continue to serve with distinction. All fear that the directives
of the 2017 Presidential Memorandum will have devastating impacts on their careers and their
families. Accordingly, they filed this lawsuit challenging those directives and moved this Court
to enjoin the implementation of the 2017 Presidential Memorandum. They claimed that the
President’s directives violate the fundamental guarantees of due process afforded by the Fifth
Amendment to the United States Constitution.
On October 30, 2017, the Court issued a preliminary injunction in this case. The Court
found that Plaintiffs had standing and were likely to succeed on their Fifth Amendment claim.
The Court concluded that, as a form of government action that classifies people based on their
gender identity, and disfavors a class of historically persecuted and politically powerless
individuals, the President’s directives were subject to heightened scrutiny. Plaintiffs claimed that
the President’s directives could not survive such scrutiny because they were not genuinely based
on legitimate concerns regarding military effectiveness or budget constraints, but were instead
driven by a desire to express disapproval of transgender people generally. The Court found that
a number of factors—including the breadth of the exclusion ordered by the directives, the
unusual circumstances surrounding the President’s announcement of them, the fact that the
reasons given for them did not appear to be supported by any facts, and the recent rejection of
those reasons by the military itself—strongly suggested that Plaintiffs’ Fifth Amendment claim
was meritorious. Accordingly, the Court enjoined Defendants from enforcing the President’s
directives. The effect of the Court’s preliminary injunction was to revert to the status quo ante

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with regard to accession and retention that existed before the issuance of the 2017 Presidential
Memorandum.
Defendants appealed, see Defs.’ Notice of Appeal, ECF No. 66, and moved this Court to
stay the portion of its preliminary injunction that required Defendants to begin accepting
transgender individuals into the military on January 1, 2018, see Defs.’ Mot. for Partial Stay of
Prelim. Inj. Pending Appeal, ECF No. 73. On December 11, 2017, the Court denied Defendants’
motion to stay. See Dec. 11, 2017 Order, ECF No. 75.
Defendants then sought the same relief from the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”). On December 22, 2017, the D.C. Circuit denied
Defendants’ motion to stay this Court’s preliminary injunction. See Doe 1 v. Trump, No. 175267, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017). The D.C. Circuit concluded that Defendants
had not demonstrated that they had a strong likelihood of success on appeal, that they would be
irreparably harmed absent a stay, or that the stay would not harm the other parties to the
proceeding. Id. The D.C. Circuit explained that “in the balancing of equities, it must be
remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and
dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation
from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to
protect the Nation, the people of the United States, and the Constitution against all who would
attack them.” Id. at *3. After the D.C. Circuit’s opinion was issued, Defendants voluntarily
dismissed their appeal of this Court’s preliminary injunction. The military began permitting
openly transgender individuals to accede on January 1, 2018.
This case then moved forward into the discovery stage. Defendants strenuously resisted
engaging in discovery. As noted above, the 2017 Presidential Memorandum had called for the

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Secretary of Defense to submit a plan to implement the President’s policy directives by February
2018. Defendants repeatedly argued that discovery should be halted until that plan was
submitted. Defendants even argued at one point that Plaintiffs were not entitled to discovery in
this case at all. The Court repeatedly rejected Defendants’ arguments and ordered Defendants to
cooperate with discovery so that this case could move forward efficiently toward an ultimate
resolution on the merits. Despite the Court’s orders, discovery remains unfinished because
Defendants have asserted that a substantial portion of the documents and information sought by
Plaintiffs are privileged (pursuant to the deliberative process privilege and the presidential
communications privilege), and the parties’ disputes about these assertions of privilege remain
outstanding.
In related cases throughout the country, Defendants’ assertions of privilege have not
fared well. The courts in Karnoski v. Trump, No. 17-cv-1297-MJP (W.D. Wash.) and Stone v.
Trump, No. 17-cv-2459-GLR (D. Md.) have recently rejected Defendants’ arguments and
ordered Defendants to produce much of the discovery that they have withheld.
In February 2018, as ordered by the 2017 Presidential Memorandum, Secretary of
Defense Mattis presented a memorandum to the President that proposed a policy to effectively
prevent transgender military service. See Defs.’ Mot. to Dissolve the Preliminary Injunction, Ex.
1, ECF No. 96-1 (hereinafter, the “Mattis Implementation Plan”). The Mattis Implementation
Plan, unlike the President’s 2017 tweet and memorandum, purports not to be a blanket ban on all
“transgender individuals.” However, the plan effectively implements such a ban by targeting
proxies of transgender status, such as “gender dysphoria” and “gender transition,” and by
requiring all service members to serve “in their biological sex.” Based on the conclusion “that
there are substantial risks associated with allowing the accession and retention of individuals

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with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course
of treatment to change their gender,” Mattis Implementation Plan at 2, the Mattis Implementation
Plan proposes the following policies:
•

Transgender persons with a history or diagnosis of gender
dysphoria are disqualified from military service, except under
the following limited circumstances: (1) if they have been stable
for 36 consecutive months in their biological sex prior to
accession; (2) Service members diagnosed with gender
dysphoria after entering into service may be retained if they do
not require a change of gender and remain deployable within
applicable retention standards; and (3) currently serving Service
members who have been diagnosed with gender dysphoria since
the previous administration’s policy took effect and prior to the
effective date of this new policy, may continue to serve in their
preferred gender and receive medically necessary treatment for
gender dysphoria.

•

Transgender persons who require or have undergone gender
transition are disqualified from military service.

•

Transgender persons without a history or diagnosis of gender
dysphoria, who are otherwise qualified for service, may serve,
like all other Service members, in their biological sex.

Id. at 2-3.
To summarize: under the Mattis Implementation Plan, individuals who require or have
undergone gender transition are absolutely disqualified from military service; individuals with a
history or diagnosis of gender dysphoria are largely disqualified from military service; and, to
the extent that there are any individuals who identify as “transgender” but do not fall under the
first two categories, they may serve, but only “in their biological sex.” By definition,
transgender persons do not identify or live in accord with their biological sex, which means that
the result of the Mattis Implementation Plan is that transgender individuals are generally not
allowed to serve openly in the military. There is only one narrow class of transgender
individuals who are allowed to serve as openly transgender under the Mattis Implementation
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Plan. Pursuant to a “grandfather provision,” those “currently serving Service members who have
been diagnosed with gender dysphoria since the previous administration’s policy took effect and
prior to the effective date of” the policy set forth in the Mattis Implementation Plan, may
continue to serve in their preferred gender.
The reasoning underlying the Mattis Implementation Plan is spelled out in a second
memorandum that was sent from the Department of Defense to the President in February 2018.
See Defs.’ Mot. to Dissolve the Preliminary Injunction, Ex. 2, ECF No. 96-2 (hereinafter, the
“Panel Report”). Like the Mattis Implementation Plan, the Panel Report carefully avoids
categorical language banning all transgender individuals. Instead, the document speaks in terms
of individuals with “gender dysphoria” and those who have undergone or will require “gender
transition” (both of which, again, are proxies for transgender status). Generally speaking, the
Panel Report concludes that individuals with gender dysphoria or who have undergone or will
require gender transition undermine the military. According to the report, these service members
are fundamentally incompatible with the military’s mental health standards, physical health
standards, and sex-based standards. The report suggests that they are a detriment to military
readiness and unit cohesion. It likens gender dysphoria to conditions such as “bipolar disorder,
personality disorder, obsessive-compulsive disorder, suicidal behavior, and even body
dysmorphic disorder.” Panel Report at 20. It concludes that individuals with gender dysphoria
or who have undergone or will require gender transition are more likely to have other mental
health conditions and substance abuse problems, and to commit suicide. Id. at 21. The Panel
Report also states that these individuals impose “disproportionate costs” on the military. Id. at
41. For the most part, in lieu of affirmative evidence, the Panel Report repeatedly cites
“uncertainty” in the medical field about these individuals as a reason to urge that the military

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“proceed with caution.” Id. at 6. Although not necessary to the outcome of this particular
Memorandum Opinion, it is worth noting that these conclusions were immediately denounced by
the American Psychological Association and the American Medical Association. See Decl. of
Lauren Godles Milgroom, ECF No. 128 (“Milgroom Decl.”), Exs. GG, HH.
On March 23, 2018, Defendants filed a Notice informing the Court that President Trump
had issued a second memorandum on military service by transgender individuals. See Defs.’
Notice, ECF No. 95. In the 2018 Presidential Memorandum, the President stated that he
“revokes” his 2017 Presidential Memorandum, “and any other directive [he] may have made
with respect to military service by transgender individuals.” Id. at 1. The President ordered that
“[t]he Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S.
Coast Guard, may exercise their authority to implement any appropriate policies concerning
military service by transgender individuals.” Id. To be clear, as has just been laid out, the
“appropriate policies” that the Secretaries intended to implement had already been developed and
proposed to the President at the time he issued this memorandum.
The events described above sparked a great debate between the parties as to the future of
this case, and prompted the filing of numerous motions. First, Defendants moved to dismiss and
to dissolve the preliminary injunction on the grounds that the Mattis Implementation Plan has
changed the circumstances of this case. Defendants argued that the Mattis Implementation Plan
represents a “new policy” divorced and distinct from the President’s 2017 policy directives that
were previously enjoined by this Court. They also argued that the Mattis Implementation Plan
does not harm the Plaintiffs in this case. Accordingly, Defendants sought the dismissal of
Plaintiffs’ Second Amended Complaint for lack of jurisdiction because Plaintiffs lack standing
and because their claims are moot. For largely the same reasons, Defendants also argued that the

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Court’s preliminary injunction should be dissolved. On August 6, 2018, the Court issued a
Memorandum Opinion and Order rejecting these arguments and denying Defendants’ Motion to
Dismiss Plaintiffs’ Second Amended Complaint and Defendants’ Motion to Dissolve the
Preliminary Injunction. See Doe 2 v. Trump, 315 F. Supp. 3d 474 (D.D.C. 2018).
Defendants have also moved for summary judgment. A major premise of Defendants’
summary judgment argument is their contention that the Court should defer to Defendants’
assessment about transgender military service because it was the product of a careful,
independent examination of this issue. Plaintiffs oppose Defendants’ motion for summary
judgment, and have also filed a cross-motion for summary judgment. However, citing Federal
Rule of Civil Procedure 56(d), Plaintiffs also ask this Court to defer ruling on the parties’ crossmotions “[i]f the Court determines that resolution of the parties’ cross-motions for summary
judgment turns on whether or not the process that resulted in the Mattis Plan and the Panel
Report reflected independent military judgment.” Pls.’ Opp’n and Cross-Mot. at 18 n.5. This is
because, according to Plaintiffs, “Defendants have objected to virtually all discovery requests
seeking evidence concerning whether, as a factual matter, the review process was an exercise of
independent judgment.” Id. Accordingly, “Plaintiffs seek the opportunity to complete fact
discovery.” Id.
The Court’s August 6, 2018 Memorandum Opinion and Order left the parties’ crossmotions for summary judgment unresolved. This Memorandum Opinion now addresses those
motions. The Court DENIES both motions for summary judgment because genuine disputes of
material fact remain. The parties dispute the facts related to the process used by Defendants to
prepare the current proposed policy on transgender military service. Those facts are material
because they affect the degree of deference owed by this Court to Defendants’ policy decisions,

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and the level of scrutiny this Court will apply to the challenged policy. The Court does not mean
to imply that these are the only genuine disputes of material fact that remain in this case. But the
existence of these disputes alone is sufficient to render summary judgment inappropriate.
Accordingly, instead of summarily adjudicating this case, the Court will allow the parties to
continue to engage in discovery.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Id. at
255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent
yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62,
66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this

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regard, the non-movant must “do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).
III. DISCUSSION
The Court cannot summarily adjudicate the claims in this case on the present record.
There are two steps to the Court’s analysis of Plaintiffs’ constitutional claims. The first step is to
determine what level of scrutiny the Court should apply, and how much deference should be
given, when reviewing the challenged policy. Only once that threshold step has been completed
can the Court move on to the second step: applying that level of scrutiny to the policy and
determining whether or not it is constitutional. Due in part to Defendants’ refusal to provide
discovery, summary judgment is not currently appropriate on the first step.
Defendants’ primary defense in this case thus far has been their argument that the Court
should apply an extremely low level of scrutiny to their proposed policy on transgender military
service. As support, Defendants primarily rely on Rostker v. Goldberg, 453 U.S. 57 (1981),
another case regarding alleged discrimination in the military context. In Rostker, the United
States Supreme Court assessed the constitutionality of a law that authorized the President to
require the registration of males, but not females, for military service. Id. at 59. The Supreme
Court in that case did not hold that courts must simply rubber stamp any allegedly discriminatory
policy if it relates to military personnel. The Court expressly declined to hold that the
heightened level of scrutiny that is generally applicable to gender discrimination does not apply
in the context of the military. Id. at 69. However, that Court did hold—based on the particular

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facts before it—that the district court in that case had not sufficiently deferred to the reasoned
consideration and decision-making of Congress regarding female military registration.
Defendants argue that the military personnel decision in this case—largely excluding
transgender persons from the military—deserves similar deference. When granting Plaintiffs’
motion for a preliminary injunction, this Court held that it was not convinced—at that
preliminary stage—that Rostker required the Court to apply a low level of scrutiny in this case.
See Doe 1 v. Trump, 275 F. Supp. 3d 167, 214 (D.D.C. 2017). This Court reasoned that the facts
in Rostker were starkly different than the facts in this case. Id. The Rostker Court had noted that
“Congress did not act unthinkingly or reflexively and not for any considered reason,” when it
passed the challenged policy. Rostker, 453 U.S. at 72. To the contrary, the Rostker Court relied
on Congress’ “studied choice of one alternative in preference to another,” and the fact that the
policy at issue in that case had been “extensively considered by Congress in hearings, floor
debate, and in committee.” Id. At the preliminary injunction stage, this Court held that such
reasoned decision-making did not appear to have occurred in this case. See Doe 1, 275 F. Supp.
3d at 214. The Court’s holding was, of course, based on the preliminary record at that time.
Now, Defendants contend that the military has conducted the sort of reasoned decisionmaking that warrants deference. According to Defendants, even if deference was not owed to
the President’s original directives (a point Defendants do not concede), the Court must now
engage in a “highly deferential form of review” because, after the President’s 2017 directives,
the military conducted an “independent reexamination” of the issue that consisted of “an
extensive deliberative process lasting over seven months and involving many of DoD’s highranking officials as well as experts in a variety of subjects.” Defs.’ Mot. at 35, 39. According to
Defendants, they “received extensive evidence on the issue,” and their decision to propose the

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policy set forth in the Mattis Implementation Plan “rested on the considered professional
judgment of multiple military experts.” Id. at 37. Defendants argue that this process entitles
them to the sort of deferential review discussed in Rostker. This is the crux of Defendants’
defense. It is restated in some form or another in nearly all of Defendants’ briefs.
But Plaintiffs do not agree that any legitimate, independent review of transgender
military service has taken place. They contend that the only process that has occurred since the
President’s 2017 Tweet and Memorandum was one merely to prepare a plan to implement an
initial, unsupported, decision of the President to ban transgender military service. According to
Plaintiffs, whatever process occurred was not meaningfully independent from, and indeed was
constrained by, that initial decision. Because there was no independent assessment of the issue
or independent exercise of military judgment, Plaintiffs argue that no special deference is owed.
Faced with this dispute, the Court holds that summary judgment is not appropriate at this
stage. Summary judgment cannot be granted to the Plaintiffs or the Defendants if there are
genuine disputes of material fact. See Fed. R. Civ. P. 56(a). The facts about the process leading
up to the development of the Mattis Implementation Plan are both material and in dispute.
First, the facts are material—they go to the heart of the degree of deference owed, and the
level of scrutiny to be applied, in this case. The military’s assessment of transgender military
service is a primary reason Defendants cite for their argument that this Court must be highly
deferential to their proposed policy. As the court in Karnoski v. Trump recently explained, the
constitutionality of the challenged policy “necessarily turns on facts related to Defendants’
deliberative process.” Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 3608401, at *4 (W.D.
Wash. July 27, 2018). In ordering discovery on this issue, that court held that “Defendants may
not simultaneously claim that deference is owed to the Ban because it is the product of

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‘considered reason [and] deliberation,’ ‘exhaustive study,’ and ‘comprehensive review’ by the
military . . . while also withholding access to information concerning these deliberations,
including whether the military was even involved.” Id. “This information is central to the
litigation.” Id. This Court agrees that this information is material to the parties’ dispute in this
case.
Second, these material facts are still in dispute. The parties disagree about the
fundamental nature of the process leading up to the issuance of the Mattis Implementation Plan,
and both cite support for their positions in the (limited) record. For example, Defendants cite
statements by Department of Defense officials regarding the “independent” nature of the process
and the fact that their “review” was not affected by “external factors.” Plaintiffs cite other
statements that suggest that the process was inherently circumscribed by an already-made
decision of the President to exclude transgender persons from the military. This is a genuine
factual dispute.
Citing Federal Rule of Civil Procedure 56(d), Plaintiffs have asked this Court to defer
ruling on the parties’ cross-motions for summary judgment “[i]f the Court determines that
resolution of the parties’ cross-motions for summary judgment turns on whether or not the
process that resulted in the Mattis Plan and the Panel Report reflected independent military
judgment.” Pls.’ Opp’n and Cross-Mot. at 18 n.5. This is because, Plaintiffs argue, “Defendants
have objected to virtually all discovery requests seeking evidence concerning whether, as a
factual matter, the review process was an exercise of independent judgment.” Id. Accordingly,
“Plaintiffs seek the opportunity to complete fact discovery.” Id.
Plaintiffs are entitled to complete discovery. As already stated above, despite the fact
that one of Defendants’ main defenses in this action is that their decisions regarding transgender

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military service are owed great deference because they are the product of reasoned deliberation,
study and review by the military, Defendants have withheld nearly all information concerning
this alleged deliberation. This is not how civil litigation works. Defendants cannot prevent
Plaintiffs from obtaining the facts about a disputed issue and then expect to be granted summary
judgment on that issue. Because genuine disputes of material fact exist and Plaintiffs are entitled
to continue pursuing discovery of those facts, the Court will not summarily adjudicate this case
at this time.
IV. CONCLUSION
For the foregoing reasons, the parties’ Cross-Motions for Summary Judgment will be
DENIED. The level of scrutiny the Court must apply, and the degree of deference owed, are
threshold questions that must be resolved before the Court can assess the constitutionality of the
challenged policy. Summary judgment on this question is not appropriate at this time because
the parties dispute the basic facts that will inform its answer, and Plaintiffs have asked for leave
to finish discovery into these facts before summary judgment is entered. Instead of granting
either of the parties’ motions for summary judgment, the Court will allow Plaintiffs the
opportunity to complete discovery. An appropriate Order accompanies this Memorandum
Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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