                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

    JANE DOE 2, et al.,
         Plaintiffs
         v.                                                 Civil Action No. 17-1597 (CKK)
    DONALD J. TRUMP, et al.,
        Defendants


                                   MEMORANDUM OPINION
                                      (August 6, 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.” This lawsuit followed. On October 30, 2017, the Court

issued a preliminary injunction, the effect of which was to revert to the status quo ante with

regard to military policy on transgender service.

         Defendants have filed several motions which are currently pending before the Court,

including Defendants’ [89] Motion for a Protective Order and [90] Partial Motion for Judgment

on the Pleadings and Unopposed Motion to Partially Dissolve the Preliminary Injunction, both of

which relate only to the status of President Donald J. Trump as a party in this litigation. In

summary form, Defendants move for the dismissal of the President as a party in this case. In

addition, Defendants move to dissolve the preliminary injunction as it applies to the President

only. Finally, Defendants also move for an order that the President himself does not have to

respond to certain discovery requests that Plaintiffs have issued to him as a party in this case.

         Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a

whole, the Court will GRANT Defendant’s Partial Motion for Judgment on the Pleadings and to


1
    The Court’s consideration has focused on the following documents:


                                                    1
Partially Dissolve the Preliminary Injunction only as to President Trump as a Defendant in this

case. The President will be dismissed as a party and the Court’s preliminary injunction will be

dissolved only as it applies to the President. The Court shall not grant injunctive or declaratory

relief directly against the President with respect to his discretionary acts that are the focus of this

lawsuit. Because no relief will be granted directly against the President in this case, the Court

will dismiss him as a party to avoid unnecessary constitutional confrontations. The Court

emphasizes that, regardless of this decision, the Court is still able to review the legality of the

President’s actions, and Plaintiffs—if successful—can still obtain all of the relief that they seek.

Given that the President is no longer a party to the case, the Court will DENY as MOOT

Defendants’ Motion for a Protective Order. That motion sought to prevent discovery that

Plaintiffs had requested from the President as a party to this case. The President is no longer a

party.

                                      I. LEGAL STANDARD

         Pursuant to Federal Rule 12(c), a party may move for judgment on the pleadings “[a]fter

the pleadings are closed—but early enough not to delay trial.” The standard for reviewing a

motion for judgment on the pleadings is virtually identical to that applied to a motion to dismiss




   •    Defs.’ Mot. for a Protective Order, ECF No. 89;
   •    Defs.’ Partial Mot. for Judgment on the Pleadings and Mot. to Partially Dissolve the
        Prelim. Inj., ECF No. 90 (“Defs.’ Mot.”);
    • Pls.’ Opp’n to Defs.’ Mot. for a Protective Order, ECF No. 91;
    • Pls.’ Opp’n to Defs.’ Partial Mot. for Judgment on the Pleadings and Resp. to Mot. to
        Partially Dissolve the Prelim. Inj., ECF No. 92 (“Pls.’ Opp’n”);
    • Defs.’ Reply in Supp. of Mot. for a Protective Order, ECF No. 93; and
    • Defs.’ Reply in Supp. of Partial Mot. for Judgment on the Pleadings and Mot. to Partially
        Dissolve the Prelim. Inj., ECF No. 94 (“Defs.’ 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).
                                                   2
under Rule 12(b)(6). See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987),

abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006); Jung v. Ass’n of Am.

Med. Colleges, 339 F.Supp.2d 26, 36 (D.D.C. 2004) (“[T]he standard of review for motions for

judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is essentially

the same as that for motions to dismiss under Rule 12(b)(6).”). “The court is limited to

considering facts alleged in the complaint, any documents attached to or incorporated in the

complaint, matters of which the court may take judicial notice, and matters of public record.”

Baumann v. D.C., 744 F. Supp. 2d 216, 222 (D.D.C. 2010).

                                         II. DISCUSSION

A. Partial Motion for Judgment on the Pleadings and Motion to Partially Dissolve the
   Preliminary Injunction

       As an initial matter, Plaintiffs do not oppose the dissolution of the preliminary injunction

insofar as it runs against the President. See Pls.’ Opp’n at 14. In fact, in their recently-filed

Second Amended Complaint, Plaintiffs specify that they are no longer seeking preliminary (or

permanent) injunctive relief from the President at all. See Second Amended Compl., ECF No.

106 (“Compl.”), at 20. Accordingly, the Court GRANTS Defendants’ motion to partially

dissolve the preliminary injunction as unopposed. The Court will dissolve its October 30, 2017

preliminary injunction to the extent that the injunction applied to the President. The injunction

remains in force as it applies to all other Defendants.

       Next, the Court also GRANTS Defendants’ motion in that it will dismiss the President

himself as a party to this case. Through this lawsuit, Plaintiffs ask this Court to enjoin a policy

that represents an official, non-ministerial act of the President, and declare that policy unlawful.

See Compl. at 20. Sound separation-of-power principles counsel the Court against granting these

forms of relief against the President directly. See Franklin v. Massachusetts, 505 U.S. 788, 802-

                                                  3
03 (1992) (holding that “in general ‘this court has no jurisdiction of a bill to enjoin the President

in the performance of his official duties.’”) (quoting State of Mississippi v. Johnson, 71 U.S. 475,

501 (1866)); Id. at 827 (Scalia, J., concurring in part and concurring in the judgment) (“The

apparently unbroken historical tradition supports the view, which I think implicit in the

separation of powers established by the Constitution, that the principals in whom the executive

and legislative powers are ultimately vested—viz., the President and the Congress (as opposed to

their agents)—may not be ordered to perform particular executive or legislative acts at the behest

of the Judiciary. For similar reasons, I think we cannot issue a declaratory judgment against the

President.”); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (“With regard to the

President, courts do not have jurisdiction to enjoin him, and have never submitted the President

to declaratory relief”) (internal citation omitted); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir.

1996) (holding that courts do not have authority to enjoin the President in the performance of his

official duties, and noting that the rationale for this limitation is “painfully obvious”); Id. at 976

n.1 (“similar considerations regarding a court’s power to issue relief against the President

himself apply to [plaintiff’s] request for a declaratory judgment.”); Newdow v. Bush, 355 F.

Supp. 2d 265, 280 (D.D.C. 2005) (“There is longstanding legal authority that the judiciary lacks

the power to issue an injunction or declaratory judgment against the co-equal branches of the

government—the President and the Congress.”). 2

        Given that the Court will not grant Plaintiffs the relief that they seek against the President

himself, the President should be dismissed. “‘[O]ccasion[s] for constitutional confrontation



2
 Indeed, Plaintiffs themselves appear to recognize that at least the injunctive relief they
originally sought in this case should not be entered against the President, as they have now
amended their complaint to exempt the President from their prayer for that relief. See Compl. at
20.

                                                   4
between the two branches’ should be avoided whenever possible.” Cheney v. U.S. Dist. Court

for D.C., 542 U.S. 367, 389-90 (2004) (quoting United States v. Nixon, 418 U.S. 683, 692

(1974)). Confrontation can be easily avoided here, because dismissing the President will have

little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President

himself are central to this case, and the Court agrees. But dismissing the President as a

Defendant does not mean that those acts will not be subject to judicial review. The Court can

still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional,

Plaintiffs can still obtain all of the relief that they seek from the other Defendants. See Defs.’

Mot. at 7 (conceding that “Plaintiffs could obtain full relief for their alleged injuries through

injunctive relief against” the Defendants other than the President); see also Swan, 100 F.3d at

978 (“In most cases, any conflict between the desire to avoid confronting the elected head of a

coequal branch of government and to ensure the rule of law can be successfully bypassed,

because the injury at issue can be rectified by injunctive relief against subordinate officials.”).

        Plaintiffs raise a number of arguments against dismissal of the President, but none of

them are persuasive. First, Plaintiffs argue that the case law cited above addresses whether

injunctive and declaratory relief is available against the President, not whether the President must

be dismissed from a civil lawsuit altogether. This is true. However, the Court’s decision,

informed by this case law, that it will not grant relief against the President still counsels in favor

of dismissing him as a party from this case. It makes little sense to retain a party in a case from

whom no relief will be granted under ordinary circumstances, and especially little sense when

retaining that party risks unnecessary constitutional confrontations. By this ruling the Court does

not, as Plaintiffs suggest, announce a new rule of “absolute immunity” for the President from

civil suits for equitable relief. The Court merely holds that on the particular facts of this case—



                                                   5
where no relief is available from the President himself, the Court can review the policy at issue

without the President as a party, and Plaintiffs can obtain all of the relief that they seek from

other Defendants—there is no sound reason for risking constitutional confrontations by retaining

the President as a Defendant. 3

       Second, Plaintiffs point out that Defendants did not move to dismiss the President earlier,

and suggest that Defendants are only now seeking to do so now in order to avoid the President

having to respond to pending discovery requests. Defendants’ motion was technically timely. A

party may move for judgment on the pleadings “[a]fter the pleadings are closed—but early

enough not to delay trial.” Fed. R. Civ. P. 12(c). More importantly, even assuming that

Plaintiffs are correct about Defendants’ motive in moving to dismiss the President, the Court

would hesitate to deny the motion on that basis. Regardless of the motivation for filing it,

Defendants’ motion presents sound reasons for dismissing the President based on well-

established separation of power principles set forth in United States Supreme Court and D.C.

Circuit precedent. Plaintiffs argue that if the President is dismissed, seeking discovery from him

will be more difficult. Pls.’ Opp’n at 1-2. But it would not be appropriate to retain the President

as a party to this case simply because it will be more complicated to seek discovery from him if

he is dismissed. To the extent that there exists relevant and appropriate discovery related to the

President, Plaintiffs will still be able to obtain that discovery despite the President not being a

party to the case.


3
 Plaintiffs point to a number of cases where the President has been a named party. See, e.g.,
Pls.’ Opp’n at 4. But in those cases, the issue of dismissing the President as a party does not
appear to have been raised or analyzed. The Court is unwilling to interpret those Courts’ silence
as an implicit holding on whether retaining the President under the present circumstances is
appropriate. Cf. Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011) (“When a
potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision
does not stand for the proposition that no defect existed.”).

                                                  6
       Third, Plaintiffs cite Nat’l Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir.

1974) (“NTEU”) for the proposition that “no immunity established under any case known to this

Court bars every suit against the President for injunctive, declaratory or mandamus relief.” Id. at

609. As an initial matter, NTEU predated the Supreme Court’s decision in Franklin—which

warned that injunctive relief against the President personally is an extraordinary measure not

lightly to be undertaken—and accordingly the D.C. Circuit has commented that “[i]t is not

entirely clear, of course, whether, and to what extent, [that] decision[ ] remain[s] good law.”

Swan, 100 F.3d at 978. Regardless, NTEU is distinguishable. That case dealt with the

question—left open by Mississippi v. Johnson—of “whether a court can compel the President to

perform a ministerial act” (in that case, adjusting the pay of federal employees as required by an

act of Congress). Id. at 607 (emphasis added). “A ministerial duty . . . is one in respect to which

nothing is left to discretion.” State of Mississippi v. Johnson, 71 U.S. at 498. “It is a simple,

definite duty, arising under conditions admitted or proved to exist, and imposed by law.” Id.

The acts of the President at issue in this case cannot plausibly be considered “ministerial.” In

addition, the court in NTEU distinguished the facts of that case from those in Mississippi v.

Johnson by noting that “[i]n sharp contrast to Mississippi v. Johnson are the circumstances of

this suit wherein failure to permit the President to be sued on the ground of separation of powers

would prevent the appellant from enforcing its legal rights in federal court.” NTEU at 614-15.

In this case, as discussed above, Plaintiffs will be able to enforce their legal rights and obtain all

relief sought in this case without the President as a party.

       In sum, the Court GRANTS Defendants’ Partial Motion for Judgment on the Pleadings

and to Partially Dissolve the Preliminary Injunction. The President will be dismissed as a




                                                   7
Defendant and the Court’s preliminary injunction will be dissolved only as it applies to the

President.

B. Motion for a Protective Order

       Through their Motion for a Protective Order, Defendants sought an order excusing the

President himself from responding to certain discovery requests Plaintiffs had issued to him as a

party in this case. Because the President will no longer be a party in this case, he will not

personally be obligated to respond to those requests. Defendants’ motion is accordingly MOOT

and will be DENIED on that basis. However, the Court reiterates that dismissing the President

as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related

to the President. The Court understands that the parties dispute whether discovery related to the

President which has been sought by Plaintiffs is precluded by the deliberative process or

presidential communication privileges, and the Court makes no ruling on those disputes at this

point. 4 The Court will be issuing further opinions addressing other dispositive motions that have

been filed in this case. After all of those opinions have been issued, if necessary, the Court will

give the parties further guidance on the resolution of the discovery disputes in this case. 5




4
  The Court is aware that the court in Karnoski v. Trump, No. C17-1297-MJP (W.D. Wash.), has
recently ordered Defendants to produce materials that they have withheld on the basis of
privilege and that Defendants have sought appellate review of that order.
5
  Restating the arguments in their Partial Motion for Judgment on the Pleadings and Motion to
Partially Dissolve the Preliminary Injunction, Defendants argue in their recently-filed Motion to
Dismiss that the Court should “dismiss Plaintiffs’ claims against the President because any
alleged injury caused by the President is not redressable.” Defs.’ Mem. in Support of Mot. to
Dismiss Pls.’ 2d Amended Compl. or, in the Alternative, for Summ. J., ECF No. 115, at 14-17.
Because the President will be dismissed as a party, these aspects of Defendants’ Motion to
Dismiss are now moot.
                                                  8
                                    III. CONCLUSION

       For the foregoing reasons, the Court will GRANT Defendants’ Partial Motion for

Judgment on the Pleadings and to Partially Dissolve the Preliminary Injunction, and DENY as

MOOT Defendants’ Motion for a Protective Order. An appropriate Order accompanies this

Memorandum Opinion.

                                                     /s/
                                                  COLLEEN KOLLAR-KOTELLY
                                                  United States District Judge




                                              9
