DOE 2 v. SHANAHAN

No. 18-5257.

917 F.3d 694 (2019)

Jane DOE 2, et al., Appellees, v. Patrick M. SHANAHAN, in His Official Capacity as Acting Secretary of Defense, et al., Appellants.

United States Court of Appeals, District of Columbia Circuit.

Decided March 8, 2019.


Attorney(s) appearing for the Case

Brinton Lucas , Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Hashim M. Mooppan , Deputy Assistant Attorney General, Marleigh D. Dover , and Tara S. Morrissey , Attorneys.

Jennifer Levi argued the cause for appellees. With her on the brief were Paul R.Q. Wolfson , Washington, DC, John T. Byrnes , Washington, DC, Kevin M. Lamb , Washington, DC, Alan E. Schoenfeld , New York, NY, Shannon P. Minter , San Francisco, CA, and Christopher Stoll .

Maura Healey , Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Robert E. Toone , Assistant Attorney General, Janet T. Mills , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maine, Brian E. Frosh , Attorney General for the State of Maryland, Lori Swanson , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Minnesota, Gurbir S. Grewal , Attorney General, Office of the Attorney General for the State of New Jersey, Hector Balderas , Attorney General, Office of the Attorney General for the State of New Mexico, Barbara Underwood , Attorney General at the time the brief was filed, Office of the Attorney General for the State of New York, Joshua H. Stein , Attorney General, Office of the Attorney General for the State of North Carolina, Xavier Becerra , Attorney General, Office of the Attorney General for the State of California, George Jepsen , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Connecticut, Matthew P. Denn , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Delaware, Karl A. Racine , Attorney General, Office of the Attorney General for the District of Columbia, Russell A. Suzuki , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Hawaii, Lisa Madigan , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Illinois, Tom Miller , Attorney General, Office of the Attorney General for the State of Iowa, Peter F. Kilmartin , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Rhode Island, Thomas J. Donovan, Jr. , Attorney General, Office of the Attorney General for the State of Vermont, Mark R. Herring , Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Ellen F. Rosenblum , Attorney General, Office of the Attorney General for the State of Oregon, and Josh Shapiro , Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, were on the brief for amici curiae The States of Massachusetts, et al. in support of appellees and affirmance of the District Court decision.

Peter C. Renn , Diana K. Flynn , Chicago, IL, and Tara L. Borelli , Los Angeles, CA, were on the brief for amici curiae National Center for Transgender Equality and Other Advocacy Organizations in support of plaintiffs-appellees and affirmance.

Andrew J. Ehrlich , New York, NY, George W. Kroup , New York, NY, Eric A. Felleman , New York, NY, and Craig A. Benson , Washington, DC, were on the brief for amici curiae American Veterans Alliance, et al. in support of plaintiffs-appellees and in support of affirmance.

Eamon P. Joyce , New York, NY, John T. Hebden , Christopher A. Eiswerth , Washington, DC, and Robert S. Chang , Seattle, WA, were on the brief for amici curiae Asian American Legal Defense and Education Fund, et al. in support of plaintiffs-appellees.

Cynthia Cook Robertson , Washington, DC, and Suzanne B. Goldberg were on the brief for amici curiae The National Organization for Women Foundation, et al. in support of plaintiffs-appellees.

Douglas H. Hallward-Driemeier , Washington, DC, Irina Finkel , New York, NY, and Douglas E. Brayley , Boston, MA, were on the brief for amici curiae The Organization of Historians and 47 Historians of the Military, National Security, and Foreign Relations supporting plaintiffs-appellees.

Elizabeth B. Wydra , San Francisco, CA, and Ashwin P. Phatak were on the brief for amicus curiae Constitutional Accountability Center in support of plaintiffs-appellees.

Steven G. Thompson Reed , Washington, DC, was on the brief for amici curiae The Service Women's Action Network and Other Veterans Service Organizations and Veterans Advocacy Groups in support of affirmance.

Harold Hongju Koh and Phillip Spector were on the brief for amici curiae Retired Military Offices and Former National Security Officials in support of plaintiffs-appellees.

Daniel S. Harawa , Sherrilyn A. Ifill , New York, NY, and Janai S. Nelson were on the brief for amicus curiae NAACP Legal Defense & Educational Fund, Inc. in support of appellees and affirmance.

Devi M. Rao , Washington, DC, was on the brief for amici curiae American Medical Association and Seven Other Health-Care Organizations in support of plaintiffs-appellees and affirmance.

Stuart F. Delery , Washington, DC, was on the brief for amicus curiae The Trevor Project in support of plaintiffs-appellees and affirmance.

Susan Baker Manning and Stephanie Schuster , Washington, DC, were on the brief for amici curiae Vice Admiral Donald C. Arthur, USN (Ret.) et al. in support of plaintiffs-appellees and affirmance of the District Court decision.

Before: Griffith and Wilkins, Circuit Judges, and Williams, Senior Circuit Judge.


Concurring opinion filed by Circuit Judge Wilkins.

Opinion concurring in the result filed by Senior Circuit Judge Williams.

"[T]he passage of time frequently brings about changed circumstances — changes in the nature of the underlying problem, changes in governing law or its interpretation...

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