The D.C. Circuit issued only one opinion last week, in a criminal case. The motions panel has been busy in December, however. As has been fairly common, the D.C. Circuit issued two administrative stays to give itself time to resolve two motions. (For a useful overview of administrative stays, see Rachel Bayefsky, Administrative Stays: Power and Procedure, 97 Notre Dame L. Rev. 1941 (2022)).

One administrative stay allowed the continuation of the National Guard deployment to D.C. (for now), temporarily staying the district court’s injunction pending the D.C. Circuit’s determination of the government’s motion for stay pending appeal.

The second administrative stay paused the district court’s order compelling the government to produce witnesses to testify in the long-running dispute over potential contempt proceedings stemming from the government’s noncompliance with a (now-vacated) TRO prohibiting removal of certain individuals to El Salvador under the Alien Enemies Act. The administrative stay (by 2-1 vote) pauses the order pending the D.C. Circuit’s resolution of the government’s mandamus petition and motion for stay pending appeal.

Last, the D.C. Circuit granted a stay pending appeal in Talbott v. United States, No. 25-5087, the case challenging the new policy barring military service by transgender individuals. In voting to stay the district court’s preliminary injunction enjoining the policy, Judge Katsas, joined by Judge Rao, focused predominantly on assessing plaintiffs’ likelihood of success on the merits of their equal protection claims and concluded they were unlikely to succeed. The panel “doubt[ed] that the policy triggers any form of heightened scrutiny” and that even if it did, “the judiciary must tread carefully when asked to second-guess considered military judgments of the political branches.”

Judge Pillard dissented. She agreed with the majority “that we owe the greatest deference to the political branches’ expert judgments on military policy.” But, she emphasized, the government declined “to provide evidence of considered judgment supporting” the new policy. Though prior defense secretaries had “adopted varying policies regarding transgender people’s accession,” unlike the new policy, “none categorically barred current servicemembers who are transgender from remaining in their roles so long as they continue to meet military standards.” Judge Pillard agreed with the district court that the policy was not a medical standard, but rather “a ban on transgender troops writ large,” whether they suffer from gender dysphoria or not. She reasoned that plaintiffs were likely to succeed on the merits primarily because the ban was based on animus.