Karnoski et al v. Trump et al

Filing 596

ORDER denying Defendants' 556 557 558 591 Motions to Quash Third-Party Subpoenas. The Court finds that Plaintiffs have demonstrated that extraordinary circumstances justify the depositions of third-party witnesses General Paul J. Selva, Secretary Robert Wilkie Jr., Secretary James N. Mattis, and Admiral William F. Moran. Signed by Judge Marsha J. Pechman. (LH)

Case 2:17-cv-01297-MJP Document 596 Filed 09/02/20 Page 1 of 13

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RYAN KARNOSKI, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,
Defendants.

CASE NO. C17-1297 MJP
ORDER DENYING MOTION TO
QUASH THIRD-PARTY
SUBPOENAS ISSUED TO
GENERAL PAUL J. SELVA (DKT.
NO. 556)
SECRETARY ROBERT WILKIE
JR. (DKT. NO. 557);

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SECRETARY JAMES N. MATTIS
(DKT. NO. 558);
ADMIRAL WILLIAM F. MORAN
(DKT. NO. 591)

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THIS MATTER comes before the Court on Defendants’ motions to quash third-party

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subpoenas issued to General Paul J. Selva (Dkt. No. 556), Secretary Robert Wilkie Jr. (Dkt. No.

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557), Secretary James N. Mattis (Dkt. No. 558), and Admiral William F. Moran (Dkt. No. 591).

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Having reviewed the Motions, the Responses (Dkt. Nos. 577, 582, 587, 594), the Replies (Dkt.

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Nos. 578, 584, 589, 595), and the related record, the Court DENIES the Motions.

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ORDER DENYING MOTION TO QUASH THIRD-PARTY SUBPOENAS ISSUED TO GENERAL PAUL J.
SELVA (DKT. NO. 556) - 1

Case 2:17-cv-01297-MJP Document 596 Filed 09/02/20 Page 2 of 13

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Background
Plaintiffs filed this action on August 28, 2017, following President Trump’s July 2017

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tweet announcing that transgender individuals would not be allowed to serve in the military and

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the President’s August 2017 Memorandum implementing that announcement. The President’s

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announcement reversed the year-old policy announced by then-Secretary of Defense Ashton

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Carter allowing transgender individuals to serve openly in the military.

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In their initial complaint, Plaintiffs alleged that President Trump made his announcement

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without engaging in “any meaningful study, deliberation, or consultation with key military

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officials,” providing then-Secretary of Defense James N. Mattis with only one day’s notice of the

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decision and making his announcement while the Secretary was on vacation. (Dkt. No. 1

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(“Compl.”) ¶ 102.) Pointing to several statements from the President’s political advisors,

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Plaintiffs also alleged that the President’s announcement was meant to bolster his political

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standing and was divorced from any consideration of military needs. (Id. ¶¶ 103-06, 110-11.)

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After this lawsuit and four related suits were filed, the DoD began developing a “plan to

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implement the policy and directives in the Presidential Memorandum.” (Dkt. No. 587, Ex. 9

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(“Mattis Memorandum”); Doe 1 v. Trump, 275 F. Supp. 3d 167, 177 (D.D.C. 2017); Stone v.

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Trump, 280 F. Supp. 3d 747, 769 (D. Md. 2017); Stockman v. Trump, No. EDCV 17-1799 JGB

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(KKx), 2017 WL 9732572, at *16 (C.D. Cal. Dec. 22, 2017). One of the central questions the

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Court must evaluate is whether the resultant policy was “dictated” by the President and therefore

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“preordained,” or whether it is the product of independent military judgment, separate and apart

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from the President’s Tweet. Karnoski v. Trump, 926 F.3d 1180, 1201-02 (9th Cir. 2019); (See,

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e.g., Dkt. No. 575 at 10, Ex. E at 17; Dkt. No. 587 at 12-36.)

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On September 14, 2017, the same day Plaintiffs filed their Motion for a Preliminary

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Injunction, Secretary Mattis promised to “present the President with a plan to implement the

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policy and directives in the Presidential Memorandum” no later than February 21, 2018 and

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issued “Interim Guidance” providing that the pre-2016 policies prohibiting the accession of

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transgender individuals into the military would remain in effect. Secretary Mattis directed

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General Paul Selva, then the Vice Chair of the Joint Chiefs of Staff (“VCJCS”) and the Deputy

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Secretary of Defense Patrick Shanahan “to lead the Department of Defense (DoD) in developing

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an Implementation Plan on military service by transgender individuals, to effect the policy and

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directives in Presidential Memorandum[.]” (Dkt. No. 587, Ex. 11 at 1.) General Selva and

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Deputy Secretary Shanahan would be supported by a panel of experts comprised of the “Military

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Department Under Secretaries, Service Vice Chiefs, and Service Senior Enlisted Advisors,” who

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reported directly to them. (Id.) The Panel held its first meeting on October 13, 2017.

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On December 13, 2017 the Panel presented its Final Report to General Selva, Deputy

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Secretary Shanahan, and Secretary Mattis. (Dkt. No. 19 at 2.) One observer to the briefing later

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wrote to the Secretary of the Navy:

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General Selva doesn’t believe SECDEF can defend the recommendations on the Hill or
before the press. [Deputy Secretary Shanahan] believes that given the competitive
economy we need to compete for all people who can do the job and we need to be clear
on the standards we expect – if you can meet them, regardless of what class of person you
identify with, then you should be acceptable for military service.

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(Dkt. No. 19 at 2.) The Panel’s recommendation was rejected. Due to decisions made by the

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four subpoenaed witnesses and the Parties’ long-standing discovery dispute, the process that

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followed is particularly opaque.

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After the Panel’s recommendations were rejected, the Panel met four more times without
recording any meeting minutes. (Dkt. No. 18, Ex. 14.) Then on January 11, 2018, the

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Undersecretary of Defense for Personnel and Readiness, Robert Wilkie, conveyed a one-and-a-

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half-page memorandum to Secretary Mattis that once again included the Panel’s

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recommendations, which were identical to the recommendations that were previously rejected.

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(See, e.g., Dkt. No. 576, Ex. 20 at 1.) A month later, on February 22, 2018, the DoD issued a 44-

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page anonymous Report and Recommendation. In response to a discovery request, Defendants

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have now provided Plaintiffs with a list of the 53 individuals who took part in drafting the

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Report. (Dkt. No. 576, Ex. 13 at 11-13.) This list includes 25 Department of Justice lawyers,

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two of whom have entered appearances in this case. (Id.; Dkt. No. 96)

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Other than the basic framework described above, Plaintiffs have little insight into the

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decision to delay implementation of the Carter policy, the initial rejection of the Panel’s

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recommendations, the Panel’s final four meetings, the decision-making process about what data

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was provided to the Panel, or the process used in drafting the Report and Recommendation.

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(See, e.g., Dkt. No. 594 at 13-17.) In large part, this is due to the Parties’ years-long discovery

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dispute and Defendants’ pending mandamus petition that seeks relief from the Court’s Order

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requiring production of “Documents or Communications relating to Secretary of Defense Ash

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Carter’s Directive Type Memo 16-005,” and “Documents or Communications relating or

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referring to the February 2018 Department of Defense Report and Recommendations.” (Dkt.

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No. 398 at 2-3; Dkt. No. 402 at 34:19-20.) Plaintiffs therefore seek to depose General Paul J.

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Selva, Secretary Robert Wilkie Jr., Secretary James N. Mattis, and Admiral William F. Moran,

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third-party witnesses who were personally involved in the decision to delay implementation of

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the Carter Policy, oversaw or served on the Panel, or worked on the DoD’s Report and

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Recommendation. Defendants have moved to quash the subpoenas of these witnesses based on

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the apex doctrine.

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Discussion
Under the judicially created apex doctrine “[h]eads of government agencies are not

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normally subject to deposition,” especially where the information sought can be obtained

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through another witness or method. Kyle Eng’g Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir.

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1979); See also Jay E. Grenig, Jeffrey S. Kinsler Handbk. Fed. Civ. Disc. & Disclosure, §

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1:70.50 (4th ed.).

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The need for controlling the use of subpoenas against high-ranking government officials

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was first recognized by the Supreme Court in United States v. Morgan, 313 U.S. 409, 421-22

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(1941), where the Court held that allowing the Secretary of Agriculture’s deposition interfered

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with the independence of the administrative process. Since Morgan, the apex doctrine has been

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applied widely to protect the time and decision-making processes of high-ranking government

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officials. See, e.g., In re U.S., 197 F.3d 310, 314 (8th Cir. 1999); In re United States (Kessler),

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985 F.2d 510, 512 (11th Cir.1993) (per curiam); In Re Office of Inspector General, 933 F.2d

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276, 278 (5th Cir.1991); Simplex Time Recorder Co. v.. Secretary of Labor, 766 F.2d 575, 586

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(D.C.Cir.1985).

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Further, “the general rule prohibiting depositions of high-ranking government officials

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also applies to former high-ranking officials.” Thomas v. Cate, 715 F. Supp. 2d 1012, 1049

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(E.D. Cal. 2010), order clarified, No. 1:05CV01198LJOJMDHC, 2010 WL 797019 (E.D. Cal.

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Mar. 5, 2010). “Subjecting former officials decision-making processes to judicial scrutiny and

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the possibility of continued participation in lawsuits years after leaving public office would serve

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as a significant deterrent to qualified candidates for public service.” United States v. Wal-Mart

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Stores, Inc., No. CIV.A. PJM-01-1521, 2002 WL 562301, at *3 (D. Md. Mar. 29, 2002) (“If the

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immunity Morgan affords is to have any meaning, the protections must continue upon the

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official's departure from public service.”).

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In sum, “Morgan has come to stand for the notion that as for high-ranking government

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officials, their thought processes and discretionary acts will not be subject to later inspection

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under the spotlight of deposition. Decision-makers enjoy a mental process privilege.” United

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States v. Wal-Mart Stores, Inc., No. CIV.A. PJM-01-1521, 2002 WL 562301, at *1 (D. Md. Mar.

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29, 2002). “But this limitation is not absolute.” Bogan v. City of Bos., 489 F.3d 417, 423 (1st

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Cir. 2007). The courts will require the high-ranking official to submit to deposition in litigation

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not specifically directed at his conduct if: 1) extraordinary circumstances are shown; or 2) the

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official is personally involved with the matter in a material way. United States v. Wal-Mart

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Stores, Inc., No. CIV.A. PJM-01-1521, 2002 WL 562301, at *3 (D. Md. Mar. 29, 2002).

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In each of their four motions, Defendants argue that: (1) depositions are especially

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inappropriate in this case given the deference owed to military judgments, (2) the information

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Plaintiffs seek is privileged, and (3) Plaintiffs cannot establish exceptional circumstances justify

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taking the depositions. (See Dkt. Nos. 575, 580, 585, 592.) The Court addresses each argument

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in turn.

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A. Military Deference

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Defendants argue that the rationale for the apex doctrine applies with particular force in

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the military setting, where “[t]he Supreme Court has recognized that ‘[o]rderly government

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requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the

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Army must be scrupulous not to intervene in judicial matters.’” (See, e.g., Dkt. No. 575 at 21

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(quoting Rostker v. Goldberg, 453 U.S. 57, 71 (1981)). According to Defendants, “even

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testimony that ‘contradict[s]’ the reasons behind a military policy would be ‘quite beside the

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point,’ so long as the policy had been ‘decided by the appropriate military officials” in ‘their

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considered professional judgment.’” Goldman v. Weinberger, 475 U.S. 503, 509. But

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Defendants’ argument highlights the very reason Plaintiffs are seeking to depose these four

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witnesses: to determine whether the policy has been decided by the appropriate military officials.

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(See, e.g., Dkt. No. 582 at 7.)

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Additionally, while the Court is required to apply “appropriate military deference to its

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evaluation of the 2018 Policy,” “‘deference does not mean abdication’” and “Defendants bear the

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burden of establishing that they reasonably determined the policy ‘significantly furthers’ the

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government’s important interests, and that is not a trivial burden.” Karnoski v. Trump, 926 F.3d

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1180, 1202 (9th Cir. 2019) (quoting Witt, 527 F.3d at 821). Further, Plaintiffs are permitted to

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“present evidence to support their theory that ‘the 2018 Policy was nothing more than an

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implementation of the 2017 Memorandum, or that the review that produced the 2018 Policy was

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limited to this purpose.’” Id. Thus, even where Defendants are entitled to deference, Plaintiffs

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must be permitted to obtain evidence in support of their theory through the discovery process,

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including through the depositions of relevant witnesses.

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B. Privileged Information

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Defendants next argue that the subpoenas should be quashed because any information

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that Plaintiffs seek regarding deliberations outside of the Panel’s development of the policy are

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protected by the deliberative process privilege and questions about communications with the

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President are subject to the presidential communications privilege. (See, e.g., Dkt. No. 585 at

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27-29.) As Plaintiffs note, Defendants cite no authority allowing a court to quash a deposition

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because some yet-unasked questions may draw a privilege objection. (See Dkt. No. 594 at 8.)

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The Court therefore finds Defendants privilege concerns are premature.

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C. Extraordinary Circumstances

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Finally, Defendants argue that Plaintiffs have failed to demonstrate that extraordinary

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circumstances justify the depositions of high-ranking government officials in this matter. (See,

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e.g. Dkt. No. 585 at 23-27.) To demonstrate that exceptional circumstances justify deposing a

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current or former high-ranking government official, a party must demonstrate “the official has

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unique first-hand knowledge related to the litigated claims or that the necessary information

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cannot be obtained through other, less burdensome or intrusive means.” Lederman v. New York

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City Dep’t of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013). “Generally, the depositions

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of former government officials are granted where the official has been personally involved in the

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events at issue in the case.” Toussie v. County of Suffolk, No. 05–1814, 2006 WL 1982687, at

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*2 (E.D.N.Y. July 13, 2006) (citing Gibson v. New York Police Officer Carmody, 1991 WL

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161087, at *1 (S.D.N.Y. Aug. 14, 1991)). For the reasons discussed below, the Court finds that

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Plaintiffs have demonstrated that each witness has been personally involved in the events at issue

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in this case and that the necessary information cannot be obtained through other means.

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1. General Selva

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General Selva is the only current or former member of the Joint Chiefs that Plaintiffs plan

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to depose. He was personally involved in the decision to delay implementation of the Carter

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Policy and was responsible for overseeing the Panel of Experts. Plaintiffs intend to question

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General Selva about his alleged recommendation that the Carter Policy be delayed and why he

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later raised an unspecified “Question/Concern” about the delay in a meeting with military

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leadership. (Dkt. No. 577 at 25, Ex. 37.) The reasons for the delay are material to assessing

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Defendants’ assertion that prior to the President’s Tweet, Secretary Mattis found it “necessary to

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defer” the Carter accession standards “so that the military could ‘evaluate more carefully’ the

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effect of accessions by transgender individuals ‘on readiness and lethality.’” (Dkt. No. 575 at

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10.)

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Plaintiffs also seek to understand the guidance and boundaries General Selva provided to

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the Panel, which reported directly to him. (Dkt. No. 18 at 27; citing id. Ex. 40 at 3 (email

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explaining that General Selva expects “all members of the panel to be knowledgeable on the

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President’s TG guidance memo.”) General Selva also has first-hand knowledge about the

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reasons the Panel’s recommendations were initially rejected, and the subsequent decision to not

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document the Panel’s reconvened meetings. (Dtk. No. 19 at 29.)

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Defendants contend that Plaintiffs can obtain this information from the materials

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Defendants have already produced in discovery or by taking the depositions of Anthony Kurta,

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the former Deputy Assistant Secretary of Defense for Military Personnel Policy, or Lernes

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Hebert, who followed Mr. Kurta as Deputy Assistant. (Dkt. No. 575 at 27-30.) First, as

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discussed infra, Defendants have not produced materials that answer Plaintiffs questions.

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Defendants have produced no minutes for the last four meetings and Plaintiffs have provided

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evidence that at least one member of the Panel complained that the minutes that do exist are

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incomplete and inaccurate. (See Dkt. No. 577 at 14-15, Ex. 15 at 2-3 (Panel member Thomas

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Dee writing “for this panel to be credible, the minutes need to reflect the objectivity of our

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analysis. Current version of the minutes doesn’t seem to do that”). Neither Mr. Kurta nor Mr.

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Hebert can address General Selva’s role in delaying the Carter Policy or the role the President’s

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order and directives played in General Selva’s decision to reject the Panel’s “Final Report.”

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2. Secretary Wilkie

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As the Under Secretary of Defense for Personnel and Readiness, Secretary Wilkie

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chaired the final six meetings of the Panel, “signed the transmittal memorandum of the Panel’s

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recommendations to the Secretary of Defense, and briefed then-Secretary Mattis on the Panel’s

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findings.” (Dkt. No. 580 at 29.) After General Selva’s and Mr. Shanahan’s rejection of the

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Panel’s initial recommendations, Mr. Wilkie created a schedule with due dates for

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“deliverables,” that appear to address General Selva’s and Mr. Shanahan’s concerns. (Id., Ex.

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Nos. 2, 21.) Secretary Wilkie was also one of three former members or chairs of the Panel who

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assisted in drafting the DoD Report. (Dkt. No. 580, Ex. 13 at 10-12.)

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Plaintiffs intend to question Mr. Wilkie about circumstances outside the Panel’s official

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documented meetings, “most importantly during the critical time period between General Selva

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and Mr. Shanahan’s rejection of the Panel’s Final Report on December 15, 2017, the preparation

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of the Wilkie Memorandum on January 11, 2018, and the development of the February 2018

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DoD Report and Mattis Memorandum.” (Dkt. No. 582 at 25.) Plaintiffs will also question Mr.

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Wilkie about his role controlling the flow of information to and from the Panel and his efforts to

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collect evidence supporting the policy on his own, without Panel involvement. (Id. at 26, 28; Ex.

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Nos. 38-39, 42.) Through this questioning, Plaintiffs seek to rebut “Defendants’ claim that the

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Panel—and not political appointees like Mr. Wilkie—was the driving force behind the Mattis

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Policy.” (Id.)

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Defendants contend that Mr. Kurta, Mr. Wilkie’s predecessor would provide

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“substantially similar or superior expertise and information regarding the development of the

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challenged policy.” (Dkt. No. 580 at 30.) Defendants also suggest that Plaintiffs can obtain

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similar information from Lernes J. Hebert, who facilitated the Panel’s deliberations at each of the

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meetings Mr. Wilkie chaired. (Id. at 31.) But neither Mr. Kurta nor Mr. Hebert can address Mr.

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Wilkie’s actions in re-convening the Panel to address Mr. Selva’s and Mr. Shanahan’s concerns,

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collecting additional support for the Panel’s findings, and drafting the DoD Report.

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3. Secretary Mattis

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Plaintiffs seek to depose Secretary Mattis about the central issue in this case: whether the

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“Mattis Policy” was the result of Secretary Mattis following the orders of his

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Commander-in-Chief or the military’s exercise of “independent judgment.” (Dkt. No. 587 at

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25.) Plaintiffs will ask Secretary Mattis about his role in drafting the Mattis Memorandum and

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the DoD Report, the extent to which he obtained input from the Panel, whether he sought

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information from sources outside the Panel, and whether he was instructed to obtain particular

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information that was absent from the Panel’s Final Report. (Id. at 29.) Secretary Mattis played a

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central role in each of the key events in this case and his testimony is necessary for completing

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the record and evaluating the Parties’ arguments.
Defendants argue that Plaintiffs have failed to make a clear showing of “bad faith or

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improper behavior,” which is required before they may probe Secretary Mattis’s mental

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processes. (Dkt. No. 585 at 24.) First, Plaintiffs’ proposed questions concern the facts

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surrounding the creation of the Mattis Policy, and as Plaintiffs note, Secretary Mattis’s mental

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processes are irrelevant to Plaintiffs’ claims.

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Second, Plaintiffs have made the prerequisite showing of bad faith. The Ninth Circuit

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has already determined that the Mattis Policy “discriminates on the basis of transgender status on

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its face.” Karnoski, 926 F.3d at 1201 n.18. Further, Plaintiffs point to evidence that Secretary

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Mattis’s decision-making process may have been influenced by animus, noting his interest in

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contacting anti-transgender rights advocates, and his email correspondence with a former

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colleague, discussing the “psychological” problems of transgender persons. (Dkt. No. 585 at 32,

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Ex. 25 at 5.) In a note to himself, Secretary Mattis listed several anti-transgender advocates he

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was interested in speaking with, writing that they are “[a]uthoritative people, who defy PC

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doctrine,” while acknowledging that speaking with them would appear inappropriate: “[I] can’t

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talk to them, but perhaps someone trustworthy can.” (Dkt. No. 587, Ex. 40.) Indeed, Secretary

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Mattis’s special assistant contacted these advocates to solicit their input after the Panel

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completed its work. (Id. at 32.)

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4. Admiral Moran

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Retired Admiral William Moran is one of only two voting members of that 17-member

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Panel that Plaintiffs seek to depose. Plaintiffs allege that Admiral Moran was the only voting

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member who also served on the prior Working Group appointed by Secretary Carter, which only

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a year before had recommended transgender persons be permitted to serve openly. (Dkt. No. 14

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at 7; Dkt. No. 2, Ex. E, Declaration of William F. Moran (“Moran Decl.”), ¶ 6.) He attended

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seven of the thirteen Panel Meetings, where he “listen[ed] to the presentation of data and

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testimony from a variety of sources” and “took part in the Panel’s deliberations and voted on a

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number of recommendations concerning the military’s policy regarding service by transgender

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individuals.” (Moran Decl., ¶¶ 7-8.)

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Further, Admiral Moran expressed concerns that the ban on transgender persons serving

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in the military was not supported by evidence, writing that “[t]he panel is unanimous in the

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opinion that the data” presented to it was “so poor that it is nearly impossible to take a purely

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analytic approach.” (Dkt. No. 594, Ex. 30.) To this end, in a December 18, 2017 email to Panel

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members, Admiral Moran proposed several questions seeking data that might show whether the

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ban on transgender persons serving in the military was supported by military interests. (Id.)

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Plaintiffs intend to ask Admiral Moran whether this data was gathered, and if it was, why it was

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not cited in the DoD Report. (Id. at 24.)

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While Defendants assert that Admiral Moran’s testimony is unnecessary because

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Defendants have agreed to allow depositions of another voting Panel member, Thomas Dee, and

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the Panel chair, Anthony Kurta, these witnesses were not on the Carter working group and

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therefore cannot compare the development of the Carter and Mattis Policies. Further, Mr. Dee

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and Mr. Kurta cannot speak to Admiral Moran’s concerns about the data underlying the Mattis

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Policy. The Court finds that Admiral Moran “has unique first-hand knowledge related to the

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litigated claims” which cannot be obtained from other sources. Lederman, 731 F.3d at 203.

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Conclusion

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In conclusion, the Court finds that Plaintiffs have demonstrated that extraordinary

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circumstances justify the depositions of third-party witnesses General Paul J. Selva, Secretary

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Robert Wilkie Jr., Secretary James N. Mattis, and Admiral William F. Moran. The Court

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therefore DENIES Defendants’ motions to quash.

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The clerk is ordered to provide copies of this order to all counsel.

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Dated September 2, 2020.

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A

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Marsha J. Pechman
United States Senior District Judge

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