Karnoski et al v. Trump et al

Filing 101

ORDER granting State of Washington's 55 Motion to Intervene. Signed by Judge Marsha J. Pechman. (PM)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

9
10
11
12
13
14
15
16
17
18
19
20

RYAN KARNOSKI, et al.,
Plaintiffs,

Case No. C17-01297MJP
ORDER GRANTING MOTION TO
INTERVENE

v.
DONALD J. TRUMP, et al.,
Defendants.
THIS MATTER comes before the Court on the State of Washington’s (“Washington
State”) Motion to Intervene. (Dkt. No. 55.) Washington State seeks to join Plaintiffs Ryan
Karnoski, et al. in challenging the constitutionality of Defendant President Donald J. Trump’s

21

Presidential Memorandum excluding transgender individuals from the military. Having

22

reviewed the motion, the responses (Dkt. Nos. 76, 77), the reply (Dkt. No. 81), and all related

23

papers, and having considered the arguments made in proceedings before the Court, the Court

24
25
26
27
28

GRANTS the State of Washington’s Motion to Intervene.
BACKGROUND
On July 26, 2017, President Donald J. Trump announced on Twitter that the United
States government will no longer allow transgender individuals to serve in the military. (Dkt.

ORDER GRANTING MOTION TO INTERVENE - 1

1

No. 32 at 3.) Following this announcement, the President issued a memorandum directing the

2

Secretaries of Defense and Homeland Security to: (1) return to the military’s policy authorizing

3

the discharge of openly transgender individuals; (2) prohibit openly transgender individuals

4

from accession into the military; (3) prohibit the use of Department of Defense and Department

5
6

of Homeland Security funds to provide certain medical procedures for transgender service

7

members; and (4) issue a plan to implement these directives. (Dkt. No. 55 at 1-2.) Plaintiffs

8

filed this suit challenging the constitutionality of the directives announced in this

9

memorandum. (Dkt. No. 30.) Washington State now moves to intervene under Rule 24 of the

10
11

Federal Rules of Civil Procedure. (Dkt. No. 55.)
DISCUSSION

12
13
14
15
16
17

I. Legal Standard
Rule 24 of the Federal Rules of Civil Procedure governs intervention. Fed. R. Civ. P.
24(a)-(b). Rule 24(a)(2) governs intervention as a matter of right, and requires that courts
permit intervention by a party who “claims an interest relating to the property or transaction

18

that is the subject of the action, and is so situated that disposing of the action may as a practical

19

matter impair or impede the movant’s ability to protect its interests, unless existing parties

20

adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). Intervention as a matter of right is

21

appropriate if the proposed intervenor shows: (1) a significant protectable interest relating to

22
23

the property or transaction that is the subject of the action; (2) the disposition of the action may,

24

as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the

25

application is timely; and (4) the existing parties may not adequately represent that applicant’s

26

interest. United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002) (quoting

27
28

Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). Because “[a] liberal policy in favor

ORDER GRANTING MOTION TO INTERVENE - 2

1

of intervention serves both efficient resolution of issues and broadened access to the courts,”

2

Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011) (citation and internal

3

quotation marks omitted), Rule 24(a)(2) “is construed broadly in favor of proposed

4

intervenors.” United States ex rel. McGough v. Covington Tech. Co., 967 F.2d 1391, 1394

5
6

(9th Cir. 1992).
Rule 24(b)(1)(B) governs permissive intervention, and permits intervention where

7
8

a proposed intervenor’s claim or defense shares a common question of law or fact with

9

the main action. Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention requires “(1) an

10
11

independent ground for jurisdiction; (2) a timely motion; and (3) a common question of

12

law and fact between the movant's claim or defense and the main action.” Freedom from

13

Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (citation omitted).

14

The independent jurisdictional grounds requirement does not apply to proposed

15

intervenors in federal-question cases where the proposed intervenor does not raise new

16
17
18

claims. Id. at 844.
II. Intervention as a Matter of Right

19

Washington State contends it has a right to intervene because it has significantly

20

protectable interests relating to the action; because disposition of the action will impair or

21

impede its interests; and because its interests are not adequately represented by Plaintiffs. (Dkt.

22
23

No. 55 at 6-11.) Defendants respond that intervention as a matter of right is not warranted, but

24

do not dispute the timeliness of the motion. 1 (Dkt. No. 76 at 8-14.) The Court addresses each

25

of Rule 24(a)(2)’s requirements in turn.

26
27
28

1

Defendants contend that Washington State may not intervene because neither Plaintiffs nor
Washington State have standing to bring their claims. (See Dkt. No. 76 at 3, 6-8.) Defendants’
Motion to Dismiss is pending, and the Ninth Circuit does not require intervenors to demonstrate
standing, so this contention is premature. See Perry v. Schwarzenegger, 630 F.3d 898, 906 (9th
ORDER GRANTING MOTION TO INTERVENE - 3

1
2
3
4

A. Significantly Protectable Interests
Washington has identified significantly protectable interests. While a proposed
intervenor need not demonstrate any “specific legal or equitable interest,” a “significantly
protectable interest” is required. Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 837

5
6

(9th Cir. 1996) (citation and internal quotation marks omitted). This requirement is satisfied

7

where the intervenor’s interest is protectable under some law, and there is a relationship

8

between the purported interest and the claims at issue. Arakaki v. Cayetano, 324 F.3d 1078,

9

1084 (9th Cir. 2003).

10
11

Washington State has demonstrated that its quasi-sovereign and sovereign interests are

12

significantly protectable interests. Quasi-sovereign interests include a state’s interest in the

13

health, and physical and economic well-being of its residents, and in “securing residents from

14

the harmful effects of discrimination.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,

15

Barez, 458 U.S. 592, 607, 609 (1982). States also have an interest in “assuring that the benefits

16
17

of the federal system are not denied to its general population.” Id. at 608. Washington State

18

contends that its quasi-sovereign interests include protecting its transgender residents from a

19

discriminatory policy that restricts access to employment and healthcare based on their gender

20

identity, and thereby implicates their physical and economic well-being. (Dkt. No. 55 at 7.)

21

The Court finds that Washington State has quasi-sovereign interests that are significantly

22
23

protectable. See Snapp, 458 U.S. at 607 (“[A] State has a quasi-sovereign interest in the health

24

and well-being-both physical and economic-of its residents in general.”); see also United States

25

v. Reserve Mining Co., 56 F.R.D. 408, 416-17 (D. Minn. 1972) (state satisfied protectable

26

interest requirement where it asserted quasi-sovereign interests).

27
28

Cir. 2011) (“In general, an applicant for intervention need not establish Article III standing to
intervene.”). Accordingly, the Court does not evaluate standing at this time.
ORDER GRANTING MOTION TO INTERVENE - 4

Washington State’s sovereign interests are also significantly protectable interests. A

1
2

state’s sovereign interests include the power to protect its territory and “the power to create and

3

enforce a legal code, both civil and criminal.” Snapp, 458 U.S. at 601. Washington State is

4

home to approximately 60,000 active, reserve, and National Guard members and military

5
6

service members, and the military is the second largest public employer in the state. (Dkt. No.

7

55 at 2.) Additionally, the Washington National Guard is comprised of military service

8

members who assist with emergency preparedness and disaster recovery planning, and have

9

been deployed to protect the State’s natural resources from flooding and wildfires. (Id. at 2-4.)

10
11

Washington State argues that excluding transgender individuals from the military will reduce

12

the number of individuals who are willing and able to join the Washington National Guard, and

13

will negatively impact the State’s ability to provide emergency response and disaster recovery.

14

(Id. at 8.) The Court is convinced that a directive that limits Washington State’s ability to

15

recruit for its National Guard directly affects the State’s ability to protect its territory. The

16
17

Court is also convinced that, if found to be discriminatory, the directive will directly affect

18

Washington State’s sovereign interest in maintaining and enforcing its own anti-discrimination

19

laws.

20
21

The Court is not convinced that the proprietary interests identified by Washington State
are significantly protectable interests. Washington State contends it has a proprietary interest in

22
23

its economic health and growth, and argues that excluding transgender individuals from

24

military service will result in a loss of employment and will reduce the property and sales tax

25

revenues that transgender service members and their families would otherwise contribute to the

26

state. (Id. at 7-8.) Washington State contends that these proprietary interests create a

27
28

“protectable interest” in the underlying litigation capable of satisfying Article III’s injury-in-

ORDER GRANTING MOTION TO INTERVENE - 5

1

fact requirement. (Id. at 7-8; Dkt. No. 81 at 4-5.) However, that a proposed intervenor satisfies

2

the injury-in-fact requirement does not give rise to a significantly protectable interest. Indeed,

3

the Ninth Circuit has indicated that the analyses for Article III standing and Rule 24

4

intervention are different. See, e.g., United States v. $129,374 in U.S. Currency, 769 F.2d 583,

5
6

586 (9th Cir. 1985) (acknowledging “it would be inappropriate to affirm the district court on

7

the ground that the conservator lacked standing to intervene under rule 24,” because standing

8

and intervention involve distinct analyses). Notably, “[a] claim based only on an indirect

9

economic effect of some action is rarely considered the same as a protectable right or interest

10
11

sufficient to justify intervention.” 6 James WM. Moore, Moore’s Federal Practice §

12

24.03[2][b] at 24–32 n.33 (Matthew Bender 3d ed. 2017); see also State of Montana v. U.S.

13

E.P.A., 137 F.3d 1135, 1142 (9th Cir. 1998) (“[A] speculative and purely economic interest

14

does not create a protectable interest in litigation concerning a statute that regulates

15

environmental, not economic, interests.”). Washington State asserts a general proprietary

16
17
18
19
20
21
22

interest in economic health and growth, but fails to demonstrate that this interest is directly
affected by Defendants’ directive.
The Court finds that Washington State’s quasi-sovereign and sovereign interests are
significantly protectable interests.
B. Disposition of Action May Impair or Impede Proposed Intervenor’s
Interest

23

Disposition of Plaintiffs’ action will, as a practical matter, impair or impede

24

Washington State’s ability to protect its quasi-sovereign and sovereign interests. The Ninth

25
26

Circuit has indicated that “[i]ntervention may be required when considerations of stare decisis

27

indicate that an applicant's interest will be practically impaired.” Greene v. United States, 996

28

F.2d 973, 977 (9th Cir. 1993) (citation omitted). Should the Court find that the directive does

ORDER GRANTING MOTION TO INTERVENE - 6

1

not violate Plaintiffs’ constitutional rights, any subsequent suit brought by Washington State to

2

protect its residents’ health, well-being, and economic security will be impeded. Therefore, the

3

Court finds that Washington State is “so situated that the disposition of the action may as a

4

practical matter impair or impede its ability to protect” its interests. Lockyer, 450 F.3d at 440-

5
6

41 (citation omitted).
C. Intervenor’s Interests Not Adequately Represented by Existing
Parties

7
8

Washington State’s interests will not be adequately represented by Plaintiffs in this

9
10

action. A proposed intervenor’s interests are adequately represented by the existing parties if:

11

(1) a present party will undoubtedly make all of the proposed intervenor's arguments; (2) a

12

present party is capable and willing to make such arguments; and (3) the proposed intervenor

13
14

would not offer any necessary elements to the proceeding. See Arakaki, 324 F.3d at 1086

15

(citation omitted). The first factor is the “most important factor,” and if “an applicant for

16

intervention and an existing party have the same ultimate objective, a presumption of adequacy

17

of representation arises.” Id. This presumption can be overcome with a “‘compelling showing’

18

to the contrary.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950–51 (9th Cir.

19
20
21

2009).
Washington State does not dispute that it shares the same “ultimate objective”

22

with Plaintiffs. (See Dkt. No. 81 at 7.) However, given its unique quasi-sovereign and

23

sovereign interests, the Court finds that Washington State has made a “compelling

24

showing” that its interests are distinct from those of the individual litigants and that

25
26

Plaintiffs will not adequately represent its interests.

27
28

ORDER GRANTING MOTION TO INTERVENE - 7

D. Timeliness of Motion

1
2

The Motion to Intervene is timely. Defendants do not dispute the timeliness of

3

Washington State’s motion, which was filed four weeks after Plaintiff’s Complaint and before

4

Defendants filed their responsive pleading. (See Dkt. No. 76 at 3-14.) Therefore, the Court

5
6

finds that Washington State has satisfied Rule 24(a)(2)’s requirements and is entitled to

7

intervene as a matter of right.

8

III.

9
10
11

Permissive Intervention
Washington State also satisfies Rule 24(b)(1)(B)’s requirements for permissive

intervention. The Court may grant permissive intervention where a proposed intervenor

12

“shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the

13

applicant's claim or defense, and the main action, have a question of law or a question of fact in

14

common.” Glickman, 82 F.3d at 839. Washington State does not raise any new claims, so the

15

independent jurisdictional requirement does not apply. Freedom, 644 F.3d at 844. Washington

16
17

State also shares common questions of law with Plaintiffs (namely, whether Defendants’

18

directive violates the Fifth Amendment). Therefore, the Court finds that Washington State

19

satisfies the requirements for permissive intervention.

20
21

CONCLUSION
Because Washington State satisfies the requirements for intervention under Rule 24 of

22
23
24
25
26
27
28

the Federal Rules of Civil Procedure, the Court hereby GRANTS the State of Washington’s
Motion to Intervene.
DATED this _27th__ day of November, 2017.

A
Marsha J. Pechman
United States District Judge
ORDER GRANTING MOTION TO INTERVENE - 8