Doe v. Trump

No. 17-5267, 2017 U.S. App. LEXIS 26477 (D.C. Cir. Dec. 22, 2017)



When considering whether to grant a stay pending appeal, courts traditionally consider: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies.


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." A formal Presidential Memorandum followed on August 25, 2017. Before the 2017 Presidential Memorandum, the Department of Defense had announced that openly transgender individuals would be allowed to enlist in the military, effective January 1, 2018, and had prohibited the discharge of service members based solely on their gender identities. The 2017 Presidential Memorandum reversed these policies. It indefinitely extended the prohibition against transgender individuals entering the military (a process formally referred to as "accession"), and required the military to authorize the discharge of transgender service members. They claimed that the President's directives violate the fundamental guarantees of due process afforded by the Fifth Amendment to the United States Constitution. The Appellants filed an emergency motion for an administrative stay and partial stay pending appeal.


Are the appellants entitled to the emergency motion for an administrative stay and partial stay pending appeal?




Appellants have not satisfied the stringent requirements for a stay pending appeal.[1]- Appellants have not shown a strong likelihood that they will succeed on the merits of their challenge to the district court's order. [2]-Appellants also failed to demonstrate that allowing the accession of transgender troops on January 1, 2018, would cause them irreparable harm; [3]-They had not shown that any training or medical demands associated with the accession of transgender troops--all of whom must be medically stable for 18 months before entry, absent a waiver--were different in kind or degree from the demands associated with the retention of existing troops; [4]-Appellants failed to show that issuance of the stay would not substantially injure the other parties to the proceeding; [5]-Appellants failed to make a compelling case on the current record that any of the stay factors weighed in their favor.

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