U.S. Department of Justice
Civil Division

950 Pennsylvania Ave. NW, Rm. 3138
Washington, DC 20530
Tel: 202-305-7920

VIA CM/ECF
November 7, 2018
Ms. Molly C. Dwyer
Clerk, United States Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526
RE:

Karnoski v. Trump, No. 18-35347 (9th Cir.) (oral argument held October 10, 2018,
before Judges Fisher, Clifton, Callahan)

Dear Ms. Dwyer:
This is an appeal from the district court’s preliminary injunction against the
Department of Defense’s policy concerning military service by transgender individuals.
In July 2018, this Court denied the government’s motion for a stay pending appeal and
announced that it would hear argument in October 2018. Shortly thereafter, the
government filed a motion to expedite oral argument in order to allow the Court to
issue a decision as soon as possible, and no later than December 2018. As the
government explained, such expedition would preserve the opportunity for the
Supreme Court to decide these issues in the 2018 Term.
On further consideration of the Supreme Court’s calendar, the Solicitor General
has determined that the government would need to seek the Supreme Court’s review in
this case by November 23 in order to preserve that Court’s ability to hear and decide
the case this Term. If this Court decides the case before that time and the government
does not prevail, the government will likely file a petition for a writ of certiorari to
review this Court’s judgment. If this Court has not yet decided the case by that time,

 the government will file a petition for a writ of certiorari before judgment.* If this Court
were then to issue an adverse decision before the Supreme Court considered that
petition in January, the government would ask the Supreme Court to treat the petition
as one for a writ of certiorari seeking review of this Court’s decision.
The government recognizes and appreciates the time and energy that this Court
has already invested in this case, including in the recent oral argument, and we would
not lightly seek certiorari before judgment in these circumstances. But it may be
necessary to do so here, in light of the importance of the issues at stake, to preserve the
Supreme Court’s ability to consider those issues this Term. The district court’s
preliminary injunction prevents the military from implementing a policy that, in its
professional judgment, is necessary to ensure readiness, good order and discipline,
steady leadership, unit cohesion, and effectiveness and lethality, among other interests.
See, e.g., ER195-204. It is critically important to the armed forces that the injunction
not remain in place any longer than is necessary. The government therefore respectfully
requests that this Court issue its decision this month, or in any event by early January,
so that the Supreme Court will have the benefit of this Court’s decision in considering
whether to grant review.
Sincerely,
s/Brinton Lucas
Brinton Lucas
Counsel to the Assistant Attorney General
cc:

all counsel (via CM/ECF)

The government will also seek certiorari before judgment in the related case of
Doe 2 v. Trump, 315 F. Supp. 3d 474 (D.D.C. 2018), appeal docketed, No. 18-5257 (D.C.
Cir. Aug. 29, 2018).
*

 CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2018, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system. Participants in the case are registered CM/ECF
users, and service will be accomplished by the appellate CM/ECF system.

s/Brinton Lucas
BRINTON LUCAS