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Government asks justices to act in document dispute in transgender-ban case (Updated)

[UPDATE: On September 18, U.S. solicitor general Noel Francisco sent a letter to the court withdrawing the government’s application. Francisco explained that the U.S. Court of Appeals for the 9th Circuit had granted the stay that the government had requested, eliminating the need for the Supreme Court to act.] 

The federal government today asked the Supreme Court to intervene in a dispute over documents in a lawsuit challenging the ban, announced in 2017, on open service in the U.S. military by transgender Americans.

The case came to the Supreme Court from the U.S. District Court for the Western District of Washington, where a federal judge in December 2017 blocked the government from implementing the ban. The district court declined to revisit that ruling after the government argued the case was moot because the original policy had been changed, and the government appealed to the U.S. Court of Appeals for the 9th Circuit, which rejected the government’s request to put the lower-court ruling on hold during the appeal.

The dispute now before the Supreme Court centers on a district-court order that requires the government to create and submit a log of the documents that the government regards as protected from disclosure because they contain communications made directly to the president. Such a “privilege log” would allow the district court to determine whether a document is indeed protected from disclosure by the “presidential communications” privilege and, if so, whether the plaintiffs have demonstrated a sufficient need for the document to trump the privilege. The district court also directed the government to turn over other documents that the government had previously withheld on the ground that they reflected discussions by government officials as part of the government’s decisionmaking process. For both sets of documents, the district court set a deadline of October 10.

The federal government, in a brief signed by U.S. solicitor general Noel Francisco, went to the Supreme Court today, arguing that a 2004 decision by the court in a case involving then-Vice President Dick Cheney “squarely forecloses the burdensome and intrusive discovery obligations” that the district-court order would impose. This is particularly true, the government argues, because the district-court’s ruling that the plaintiffs in the case need access to these documents flows from the court’s ruling on the plaintiffs’ request to block the transgender ban, which the government has appealed.

The government’s request for relief went to Chief Justice John Roberts, who since the retirement of Justice Anthony Kennedy has been responsible for emergency appeals from the 9th Circuit. Roberts could refer the request to the full court or (as he did over the weekend in another case) rule on it alone. And although the government’s brief focused primarily on asking the Supreme Court to block the district-court’s orders on discovery, it also suggested that the court could take broader action, including by agreeing to review the merits of the district-court’s decision blocking the government from implementing the ban. Whatever Roberts and the court decide to do, though, they are likely to act relatively quickly.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Government asks justices to act in document dispute in transgender-ban case (Updated), SCOTUSblog (Sep. 17, 2018, 3:23 PM),