Stone et al v. Trump et al

Filing 101

MEMORANDUM AND ORDER denying 91 MOTION for Clarification and, if necessary, a Partial Stay of Preliminary Injunction Pending Appeal. Signed by Judge Marvin J. Garbis on 12/28/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BROCK STONE, et al.
Plaintiffs

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vs.

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DONALD J. TRUMP et al.

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Defendants
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CIVIL ACTION NO. MJG-17-2459

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MEMORANDUM & ORDER RE: CLARIFICATION

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The Court has before it Defendants’ Motion for
Clarification and, if Necessary, a Partial Stay of Preliminary
Injunction Pending Appeal [ECF No. 91] and the materials related
thereto.

I.

The Court finds a hearing unnecessary.

CLARIFICATION
Defendants seek clarification from the Court that the

Preliminary Injunction [ECF No. 84], issued on November 21,
2017, does not prohibit the Secretary of Defense from exercising
his independent discretion to defer the January 1, 2018
effective date for the accessions provision of the Open Service
Directive.1

The Court’s Order did not address nor contemplate

1

The Open Service Directive was issued by then-Secretary of
Defense Carter on June 30, 2016, and the accessions provision
was scheduled to go into effect on July 1, 2017. On June 30,
2017, Secretary of Defense Mattis delayed the effective date to
January 1, 2018.

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addressing any legitimate independent reasons for delaying the
accessions provision.

Defendants have not shown the

impossibility of implementing the accessions provision within
the planned timeframe.

Nor have defendants shown a likelihood

that the Secretary of Defense intends to take an action that
would present the alleged issue.
By this motion, Defendants essentially ask this Court to
issue an advisory opinion as to whether a hypothetical action
that could be taken by Secretary Mattis could achieve the denial
of accession to transgender applicants without violation of the
outstanding Order.

Determination of the legality of an action

that would effectively delay the application of the Court Order
would likely require resolution of a myriad of factual disputes.
The motion seems to request judicial advice as to what can be
done to delay transgender accession to the military that will
not risk a contempt finding.

The role of the federal courts is

“neither to issue advisory opinions nor to declare rights in
hypothetical cases, but to adjudicate live cases or
controversies consistent with the powers granted the judiciary
in Article III of the Constitution.”

Thomas v. Anchorage Equal

Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000).
Court shall DENY Defendants’ motion.

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Thus, the

II.

PARTIAL STAY
In the alternative, Defendants seek a partial stay of the

Preliminary Injunction pending appeal.2

Subsequent to filing the

instant motion, Defendants also filed in the Fourth Circuit
appellate case (No. 17-2398) an emergency motion for
administrative stay and partial stay pending appeal.

On

December 21, 2017, the Fourth Circuit denied the motion.
Order, ECF No. 99.

See

To the extent that the instant motion is not

moot, the Court finds that Defendants have not met their burden
to establish irreparable harm if they must implement the
accessions provision by January 1, 2018.

Nor have Defendants

shown that the Court abused its discretion in weighing the
equities to decide that a preliminary injunction was warranted
such that they are likely to succeed on the merits of their
appeal of the Preliminary Injunction.

Granting a stay may harm

Plaintiffs and is not in the public interest.
Accordingly, upon considering the four factors, Nken v.
Holder, 556 U.S. 418, 434 (2009), the Court finds that they do
not weigh in favor of a stay of the accession provision of the
Court’s preliminary injunction while the Fourth Circuit decides
Defendants’ appeal.
2

The Court notes that in the corresponding D.C. Court case,
Doe 1 v. Trump, No. 17-cv-0159-CKK, Defendants sought a partial
stay pending appeal, and it was denied on December 11, 2017, the
day before the instant motion was filed.

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Defendants’ Motion for Clarification and, if Necessary, a
Partial Stay of Preliminary Injunction Pending Appeal [ECF No.
91] is DENIED.

SO ORDERED, on Thursday, December 28, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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