“There’s something about black holes that draws in scientists and the rest of us terrestrial dwellers,” lawyers included. Last week, however, the D.C. Circuit concluded that the military is not a constitutional “black hole of futile claims.”

The case was Talbott v. United States. (See here and here for news coverage about the case, and here for a prior D.C. Circuit order in the litigation). Talbott is about the constitutionality of the Trump Administration’s ban on transgender troops. The district court, having found that the ban was “soaked in animus” against transgender people, preliminarily enjoined its implementation. A divided panel left part of that injunction in place, with Judge Wilkins writing that the policy “is both arbitrary and based upon animus, and for those reasons . . . violates Plaintiff-Appellees’ constitutional right to equal protection of the law.” 

Judge Wilkins and Judge Rogers voted to affirm the district court’s preliminary injunction against the Administration’s move to expel active-duty service members. In his opinion for the Court, Judge Wilkins concluded that the challenged policy, known as the “Hegseth Policy” for Secretary of Defense (“now redesignated as Secretary of War”) Hegseth, “appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender.” As Judge Wilkins explained, “the District Court found that the Hegseth Policy, which disqualifies from service anyone with a history of gender dysphoria, constitutes a ban on all transgender troops.” Based on this finding, he held that the plaintiffs were likely to succeed on the merits of their equal protection claim. 

Judge Wilkins rejected the notion that a reviewing court should ignore the evidence of the Trump Administration’s animus and instead imagine a non-discriminatory rationale to sustain the Hegseth Policy:

It is neither conceivable nor reasonable to conclude that the President acted for reasons other than those he expressly gave in the Executive Order, nor is it conceivable or reasonable to conclude that the Secretary acted for reasons other than the ones he expressly gave when promulgating the Hegseth Policy. [citations omitted] If we are at the point where invidious reasons that were expressly given for a classification can be completely ignored and replaced with our imagined noninvidious reasons, then equal protection jurisprudence has truly become bankrupt.

The constitutional standard of review was “a ‘reasonable and evenhanded’ test,” which “consider[s] military purposes and interests as presumptively legitimate and due great deference.” This deferential test is not “a judicial rubber stamp.” Instead, it requires a reviewing court to consider whether a challenged “classification [is] sufficiently related to” the presumptively legitimate military purpose. In applying this test, a court should determine whether challenged classifications are “based on invidious discrimination.” Judge Wilkins concluded that the Hegseth Policy was based on invidious discrimination and thus distinguishable from the ban at issue in United States v. Skrmetti. 

Judge Wilkins and Judge Rogers disagreed, however, about the scope of the preliminary injunction. In balancing the equities, Judge Wilkins distinguished between plaintiffs already serving in the military and those who want to enlist and serve. Judge Wilkins had this to say about the latter group:

[W]e must also consider that this is only a preliminary determination of the merits. It is still possible that following complete factual development and briefing, Appellants could prevail on the merits. If that were to happen, and in the meantime new servicemembers were admitted who would have been excluded under the Hegseth Policy, that would have caused Appellants to admit persons they were actually legally entitled to exclude—a distinct harm. This is against the public interest.

Judge Rogers thought that the district court did not abuse its discretion in protecting the plaintiffs who want to enlist “based on the uncontested declarations by military officials about the very issue now of concern to Judge Wilkins: potential harm to the military if plaintiffs-appellees were permitted to join the military service.” 

Judge Walker dissented and argued that the majority had arrogated to itself the authority of the Commander in Chief and his generals. Judges, he wrote, “have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks.” In his view, the Supreme Court’s constitutional jurisprudence in cases involving the composition of the military is a “black hole of futile claims.” The lesson of these cases is simple: military decisions, including the Hegseth Policy, should “receive ‘great deference.’” 

***

There were three more published opinions last week. 

In MISO Transmission Owners v. FERC, Judge Edwards wrote for a panel that included Judges Pan and Garcia. The case was about the return-on-equity component of the rate that transmission owners charge electricity customers. One group of petitioners argued that FERC had (i) violated the Federal Power Act in backdating the effective date of a return and (ii) erred in considering successive complaints about the return. As to the first challenge, the court concluded that FERC had the authority to make the effective date of the return line up with a prior order of the D.C. Circuit under the rule that FERC may make retroactive rate adjustments to remedy “‘its own errors after being reversed in court[.]’” As to the second challenge, the court dismissed the petitions for lack of Article III standing. In addition, another petitioner challenged the percentage of the return and FERC’s response to some data the petitioner submitted to it. As to this challenge, the court applied the law-of-the-case and held that FERC was reasonable when it concluded that the petitioner submitted the data too late in the proceedings. 

In Grafton & Upton Railroad Co. v. STB, a panel of Judges Pillard, Walker, and Ginsburg issued a per curiam opinion in a faceoff between a railroad and a town about ownership of land. The town sued the railroad in a state court and argued that it had a right of first refusal to the land, which the railroad argued it had validly bought. The railroad wanted the STB to declare that federal law preempted the state statute that the town cited for its right of first refusal. The STB said there was no basis for preemption, a conclusion that the D.C. Circuit did not disturb. While the Interstate Commerce Commission Termination Act “preempts state law that would control or frustrate a railroad’s use of its own land for rail transportation,” the Act “does not displace generally applicable property law governing land a railroad does not own.” It was for the state court to decide whether the railroad “has a valid property interest in the land.” 

In Kitchen v. CFTC, Judge Henderson wrote for a panel that included Judges Childs and Garcia. The panel affirmed orders of the CFTC that denied a whistleblower award, concluding that the relevant “enforcement actions were not based on conduct about which [the appellant] provided specific, credible and timely information.”