Category: Spotlight

Who’s Who Behind the Amicus Brief and Why It Matters for Every Veteran

Posted on by Becky Haugen

A powerful amicus curiae brief filed in Kelly v. Hegseth brings together an extraordinary coalition of former service secretaries, retired senior military leaders, and veteran advocates to deliver a unified warning to the court: punishing a retired service member for truthful public speech about military law threatens democratic self-government and chills the voices of millions of veterans nationwide.

This is not an abstract dispute about decorum or discipline. It is a case about who gets to speak, what the law actually requires, and whether veterans remain full participants in civic life after they hang up the uniform.

The Case at the Center

The lawsuit was brought by Mark Kelly, a retired U.S. Navy Captain and sitting U.S. Senator, after the Department of Defense took the unprecedented step of formally censuring him for public statements explaining a settled principle of military law: service members have a duty to disobey unlawful orders.

The defendant is Pete Hegseth, sued in his official capacity.

The amicus brief supports Senator Kelly’s request for a preliminary injunction, warning that allowing this punishment to stand would dramatically expand executive power over veteran speech.

Who Filed the Amicus Brief—and Why Their Voices Matter

Former Service Secretaries: Civilian Oversight at Stake

Among the amici are former civilian leaders entrusted with oversight of the armed forces, including:

  • Louis E. Caldera
  • Sean C. O’Keefe

Their participation signals that this case is not about politics—it is about preserving lawful civilian-military norms and constitutional boundaries.

Retired Generals and Admirals: Unmatched Military Authority

More than 40 retired senior officers across every branch of the armed forces signed the brief. Collectively, they served under every president from Dwight D. Eisenhower to Donald J. Trump.

Notable signatories include:

  • Antonio Taguba, known for leading the Abu Ghraib investigation
  • Michael V. Hayden, former Director of the CIA and NSA
  • Claudia J. Kennedy, the first woman to reach three-star rank in the Army
  • Thad W. Allen, former Commandant of the Coast Guard

These are not marginal critics. They are the leaders who trained troops, commanded forces, enforced military law, and safeguarded the institution’s credibility.

Veteran Civil Society: The Broader Impact

The brief is also joined by Vet Voice Foundation, a non-partisan organization representing nearly two million veterans and military family members.

Their involvement highlights the real-world consequences: when veteran speech is chilled, public debate suffers—and so does democratic accountability.

Counsel for the Amici

The amici are represented by leading democracy and constitutional-law organizations:

  • Protect Democracy Project
  • States United Democracy Center

What the Amicus Brief Argues—At a Glance

  1. Veteran Participation Is Essential to Democracy

Veterans serve throughout public life—as legislators, judges, journalists, educators, and advocates. Silencing them deprives the public of informed perspectives on national security and military policy.

  1. The Duty to Disobey Unlawful Orders Is Settled Law

The brief traces this principle through U.S. military case law, the Law of War, the Uniform Code of Military Justice, and post-World War II precedent. Explaining this duty publicly is accurate, lawful, and necessary, not misconduct.

  1. UCMJ Speech Limits Do Not Apply to This Case

Even for active-duty service members, speech may be restricted only where there is a direct and palpable connection to military mission or discipline. That standard is nowhere close to being met here—especially for a retired officer holding elected office.

If the government’s position were accepted, the brief warns, no meaningful First Amendment protection would remain for veterans.

Why This Moment Matters

The amici make clear that they filed this brief despite recognizing the risk of retaliation themselves. That chilling effect is the constitutional injury at the heart of this case.

If a retired service member can be punished for accurately explaining military law—then every veteran’s voice becomes conditional, subject to political approval.

This case is about more than one Senator. It is about whether service ends with silence—or whether veterans remain full participants in the democracy they defended.

Documents

Kelly amicus brief

1 Complaint Kelly v. Hegseth, 1.12.26

2 Kelly motion for emergency TRO and PI, 1.12.26

Amicus brief in support of Kelly, 1.20.26

4 Govt opposition to Kelly PI motion, 1.22.26 

Senator Kelly Reply brief in support of PI motion, 1.26.26

Citations & References

  • Brief of Amici Curiae Former Service Secretaries, Retired Senior Military Officers, and Vet Voice Foundation in Support of Plaintiff’s Motion for Preliminary Injunction and Stay, Kelly v. Hegseth, No. 1:26-cv-00081-RJL (D.D.C. Jan. 20, 2026). Kelly amicus brief
  • Uniform Code of Military Justice; Manual for Courts-Martial
  • United States v. Calley, 48 C.M.R. 19 (1973)
  • United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995)
  • Department of Defense Law of War Manual

What the Erosion of the MSPB Means for Federal and Military Fairness

Posted on by Becky Haugen

MSPB
The MSPB system exists, but who is it serving now?”

When Independence Becomes Illusion: What the Erosion of the MSPB Means for Federal and Military Fairness

For nearly half a century, Congress intended the Merit Systems Protection Board to serve as a quiet but essential guardian of fairness, an independent forum where federal employees could challenge unjust personnel actions without fear of political retaliation. That independence was not an accident. It was a deliberate legislative choice, born of historical abuses, designed to ensure that careers in public service would rise or fall on merit, not on politics.

Today, that vision is in jeopardy.

In recent months, a series of developments, judicial, administrative, and structural have converged to fundamentally weaken the MSPB’s ability to function as Congress intended. What was once an independent adjudicatory body increasingly resembling a procedural bottleneck: nominally restored, but substantively constrained.

The D.C. Circuit’s January 9 decision declining to rehear Harris v. Bessent marked a quiet but consequential turning point. By allowing a panel decision to stand that casts doubt on statutory protection shielding MSPB members from at-will presidential removal, the court effectively signaled that the Board’s independence is constitutionally suspect. The reasoning rests on the idea that the MSPB exercises “substantial executive power” and therefore must be directly accountable to the president. That framing collapses the distinction Congress carefully built between executive enforcement and neutral adjudication.

As Lawfare observed in its recent analysis, this reasoning places the MSPB squarely in the crosshairs of modern separation-of-powers doctrine. Once the Board is treated as an extension of executive authority rather than a buffer against it, the premise of impartial review begins to erode. Independence becomes performative, existing in name, but not in function.

This erosion did not occur in a vacuum. For much of the past year, the MSPB lacked a quorum altogether, rendering it unable to issue final decisions. During that period, federal workers successfully argued in court that pursuing administrative relief would be futile. Judges agreed. Lawsuits moved forward. For a brief moment, access to Article III courts provided a meaningful alternative when the administrative system failed.

That window has now largely closed.

With the Senate’s confirmation of a new Board member restoring a quorum, the MSPB is technically operational again. But restoration of form does not equal restoration of justice. The Board returns burdened by a massive backlog and operating under a legal cloud that undermines its structural independence. For tens of thousands of federal employees, this means a return to mandatory administrative exhaustion, long delays, uncertain outcomes, and limited judicial review before ever setting foot in a courtroom.

For civil servants, this is more than an inconvenience. It is a narrowing of practical access to justice.

And for military service members, the implications are even more sobering.

Although uniformed service members often navigate separate statutory regimes, the logic now applied to the MSPB does not stop at civilian agencies. Military correction boards, discharge review boards, and administrative tribunals operate on similar assumptions of deference and internal review. When courts weaken the independence of civilian adjudicatory bodies, the ripple effects reinforce a broader judicial posture: one that increasingly favors executive control over independent review in personnel matters.

Congress never intended merit-based protections to function this way. The MSPB was designed as a shield, not a speed bump. It was meant to provide fair, neutral adjudication precisely because courts recognized the danger of politicized employment decisions within government. By insulating Board members and empowering them to decide cases free from executive pressure, Congress sought to preserve both fairness and public trust.

What we are witnessing now is a slow inversion of that design.

A board that can be restructured, influenced, or constrained through removal power and judicial reinterpretation cannot credibly promise impartiality. A system that forces employees into years-long administrative limbo before permitting judicial review does not meaningfully protect due process. And a legal framework that treats adjudicators as mere extensions of executive authority undermines the very concept of neutral review.

This moment calls for clarity, not partisanship.

If fairness and independence remain core values in federal service, Congress must confront the gap between its original intent and present reality. That may require statutory reform, clearer jurisdictional pathways to federal court, or renewed protections for adjudicatory independence. Without such action, the merit system risks becoming an artifact of history rather than a living safeguard.

For federal employees and service members alike, justice delayed and independence diluted is justice denied.

About Military Defense Law

Military Defense Law is published by the Law Offices of David P. Sheldon, PLLC, providing analysis and advocacy on military justice, federal employment law, and the constitutional rights of those who serve.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Individuals facing adverse personnel actions should consult qualified legal counsel regarding their specific circumstances.

Citations & References

Federal Court Challenge Highlights Systemic Failures in Correcting Injustice Within the Uniformed Force, the United States Public Health Service

Posted on by Becky Haugen

USPHS Justice

A federal lawsuit now before the U.S. District Court for the District of Columbia brings renewed attention to the obligation of military correction boards to correct injustices in the records of uniformed service members, particularly when clear evidence shows systemic failures in supervision, medical oversight, and administrative review.  The case arises for a uniformed officer serving in the United States Public Health Service (PHS).

In this case, an accomplished commissioned officer seeks judicial review after a federal agency official overturned a formal PHS Board for Correction (BFC) finding that an injustice had occurred. The complaint challenges whether the agency’s leadership may disregard its own correction board’s fact-based conclusions without evidentiary support, and whether such actions violate long-standing administrative law principles.

A Record Showing Red Flags, But No Intervention

According to the court filings, the correction board determined that the officer’s service record reflected unmistakable warning signs of a serious medical condition tied to a line-of-duty injury and prescribed treatment. Despite repeated absences and performance concerns that should have triggered inquiry and assistance, the record showed no evidence that supervisors ever confronted the officer, investigated the underlying cause, or referred the matter for appropriate treatment.

The PHS BFC concluded that this failure constituted a clear injustice, particularly where governing regulations emphasize early identification, supervisory responsibility, and mandatory referral when substance-related or medical impairment is suspected. Those findings were grounded in the administrative record and supported by established precedent recognizing that silence and stigma often prevent individuals from self-reporting medical conditions.

Despite the PHS BFC’s determination, a senior agency official rejected the recommendation and denied relief without identifying evidence contradicting the Board’s findings. The complaint argues that this reversal was arbitrary and capricious, as it failed to grapple with the record evidence, ignored the board’s conclusions, and substituted unsupported assertions in place of reasoned analysis

Equally significant, the agency attempted to deny the officer’s application “with prejudice.” In response, the government has now effectively conceded in its court filings that such denials are not permitted under the governing statute—an admission that carries implications well beyond this individual case.

At its core, this litigation is about accountability. Federal correction boards exist to remedy injustice when the system fails. When their findings are overridden without evidence, service members lose faith in the very mechanisms designed to protect them.

This case underscores:

  • The duty of supervisors to act when medical or behavioral red flags appear
  • The legal limits on agency discretion when overturning correction-board decisions
  • The continuing role of federal courts in safeguarding due process for those who served

For service members navigating complex medical and administrative challenges, the outcome of this case may shape how agencies nationwide honor their statutory responsibilities.

About the Firm

The Law Offices of David P. Sheldon, PLLC, is a nationally recognized military and federal employment law firm based in Washington, D.C. The firm represents service members, veterans, and federal employees worldwide in courts-martial, security clearance matters, military correction boards, disability and retirement cases, and complex federal litigation.

Disclaimer

This press release is provided for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this publication. Past results do not guarantee future outcomes.

 

 

Constitution vs. Unlawful Retaliation: Why This Lawsuit Matters to Every Service Member

Posted on by Becky Haugen

Gavel military judge

A constitutional line has been crossed, and every service member, veteran, and military family should be paying close attention.

In a newly filed federal lawsuit, a retired U.S. Navy service member, Arizona Senior Senator Mark Kelly, CAPT, USN (retired) is challenging what many legal experts are calling an unprecedented and unlawful act: a post-retirement demotion allegedly driven by political retaliation. The case, now drawing national attention, raises fundamental questions about free speech, civilian control, and the integrity of military justice itself.

As reported in Axios, Senior Military Defense Attorney Annie Morgan did not mince words in her assessment, calling the action “patently politically motivated” and warning that it represents a direct attack on long-standing constitutional protections afforded to both active-duty personnel and retirees.

A Dangerous Expansion of Power

At the center of the lawsuit is an effort reportedly tied to Pete Hegseth that seeks to retroactively punish a retired service member, someone no longer subject to the day-to-day authority of the chain of command. If allowed to stand, this move would represent a dramatic expansion of government power into territory that has historically been off-limits.

Military retirement is not a conditional privilege that can be revoked for disfavored speech. It is an earned status, grounded in decades of service and protected by constitutional principles. As Morgan explains, using rank demotion as a political weapon risks transforming military justice into a tool of retaliation rather than discipline.

The Chilling Effect on Free Speech

The implications extend far beyond one individual.

If retirees can be punished years later for expressing political views, criticizing government leadership, or participating in public discourse, the result will be a chilling effect across the entire military community. Active-duty service members, reservists, and veterans alike may reasonably fear that speaking out, even lawfully, could jeopardize their careers, benefits, or reputations.

That outcome cuts directly against the First Amendment and undermines the trust that service members must have in a fair, apolitical system of justice.

Why This Lawsuit Is a Line in the Sand

This case is not about politics; it is about limits.

It asks whether the government can reach backward in time to impose punishment on someone who has already completed honorable service. It challenges whether military authority ends at retirement, as the law has long recognized, or whether it can be revived whenever speech becomes inconvenient.

As covered in Axios, the lawsuit positions itself as a landmark challenge to government overreach, one that could set precedent for how far retaliation may go if left unchecked.

What Comes Next

Courts now have the opportunity and the responsibility to reaffirm that constitutional protections do not disappear at the end of active service. For veterans who have already given years, and often decades, to the nation, that assurance is not symbolic. It is essential.

This case will shape the future of military justice, free speech, and the relationship between service and citizenship.

Read the full Axios reporting here to understand why this lawsuit matters not just to one retired officer, but to every person who has worn the uniform.

When Fitness Becomes a File: Why the Navy’s New PT Policy Deserves a Closer Look

Posted on by Becky Haugen

When Fitness Tests Are COER and Discharge of Military Status

For many sailors, a physical fitness assessment is not just a test, it is a line in a permanent record. A line that follows them into evaluations, promotion boards, medical reviews, and sometimes into the final decision on whether they are allowed to finish their service or earn the retirement and benefits they have spent years working toward.

That is why the Navy’s recent decision to double the annual physical fitness assessment requirement  and to mandate administrative separation after three failures within four years, deserves more than a headline glance. It deserves a careful, human review of how policy decisions ripple through real careers.

According to reporting by Navy Times, the Navy frames this policy as a readiness initiative. In theory, higher standards and clearer enforcement promote fairness. In practice, however, sailors know that what looks clean on paper often becomes complicated in the lived reality of injury, recovery, command climate, and medical evaluation boards.

For the sailor who twists a knee on deployment.
For the one navigating chronic pain while still meeting mission demands.
For the service member who followed every rule, every profile, every medical instruction and still finds themselves one failed test away from an administrative process that can end a career.

This policy change does not exist in a vacuum.

A failed fitness test is rarely just about fitness. It can trigger a counseling entry, influence a COER or FITREP, or quietly color how a service member is perceived by leadership. Once in the record, it often requires significant time and legal literacy to rebut, contextualize, or undo.

Under the new policy, the Navy has removed much of the discretion that once allowed commanding officers to weigh the totality of a sailor’s service. Where leaders previously had room to recognize exemplary performance despite a temporary setback, the system is now largely automatic. Three failures in four years, and separation proceedings must begin.

For sailors navigating the MEB/PEB process, this rigidity can be especially dangerous. Medical evaluations already place service members in a vulnerable administrative position, one where timelines, documentation, and narrative framing matter enormously. Add a fitness failure into that mix, and the consequences can multiply.

The result? Sailors spend months and sometimes years fighting to prove that a single metric does not define their service.

This is not the first time policy shifts have left scars on service records.

During COVID, fitness testing requirements were paused, altered, and then reinstated. While many service members were eventually allowed to return to service, the administrative damage was not always undone. Negative marks remained in records. Morale suffered. Trust eroded. And in many cases, sailors bore the burden of correcting problems created by rapidly changing policies they did not control.

The lesson from that period is clear: even when policies are later softened or reversed, the paper trail often remains.

The Navy has announced that prior PFA failures will be “reset” for certain purposes. But sailors should not mistake that for a complete erasure. Selection boards, special programs, and discretionary reviews may still see the past and once a negative evaluation exists, it can take significant effort to neutralize its impact.

What Is Really at Stake

Administrative separation is not a neutral outcome. It can affect:

  • Eligibility to complete an agreed-upon term of service
  • Retirement timelines and pension qualification
  • VA disability claims and benefit offsets
  • Post-service employment and security clearances
  • The dignity of a career defined by years of honorable service

When fitness policy becomes a blunt instrument, it risks transforming short-term readiness goals into long-term injustice.

Service members who have played by the rules, complied with medical guidance, and maintained exemplary duty performance should not find their careers derailed by a system that lacks nuance — especially when medical realities and command culture play such a large role in outcomes.

A Call for Vigilance, Not Fear

This opinion is not an argument against fitness standards. It is a call for awareness and self-advocacy.

Sailors must understand that every fitness test, counseling entry, and evaluation comment contributes to a larger administrative story, one that may later be reviewed by medical boards, separation authorities, or retirement adjudicators. Protecting the right to serve a full term and to receive the benefits earned through that service often depends on how well that story is documented and defended.

Readiness matters.
But so does fairness.
And fairness demands that policy never lose sight of the people it governs.

About the Firm

The Law Offices of David P. Sheldon, PLLC, is a Washington, D.C. based military and federal employment law firm representing service members worldwide in courts-martial, administrative separations, medical boards (MEB/PEB), security clearance matters, and retirement and disability cases. The firm is nationally recognized for protecting the rights, careers, and benefits of those who serve.

Disclaimer

This article is provided for informational and educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Service members facing adverse administrative action should seek individualized legal counsel.

References & Citations

  • Navy Times, Navy doubles annual PT test requirement, updates failure guidelines (Dec. 30, 2025).
  • MyNavy HR, NAVADMIN 264/25 Fact Sheet – Physical Fitness Assessment Policy Updates.

A Season of Gratitude for Those Who Serve and Those Still Waiting

Posted on by Becky Haugen

Sentiment for Holidays

As families gather during the holiday season, it is a time to pause and express gratitude—for service, for sacrifice, and for the quiet resilience of those who continue to serve even when recognition comes slowly, if at all.

Across the military and federal workforce, many service members and employees spend this time of year navigating unresolved challenges: pending medical evaluations, delayed retirement decisions, discharge reviews still under consideration, or careers placed on hold by administrative processes that move far more slowly than life itself. These are not abstract issues. They shape families’ futures, financial stability, and a sense of dignity earned through years of service.

This season invites reflection not only on what has been given, but on what is still owed—fair process, timely decisions, and lawful treatment. Gratitude does not require silence about the systems that affect those who serve. Instead, it can take the form of patient advocacy, careful attention to detail, and a commitment to ensuring that every case is reviewed on its merits.

For many, the holidays arrive without resolution. Yet service continues—often quietly, often unseen. Families adapt. Careers wait. And hope persists that the coming year will bring clarity, fairness, and accountability.

At this time of year, we extend our sincere thanks to service members, veterans, federal employees, and their families. Your service matters. Your patience is not unnoticed. And your right to fair treatment under the law remains essential—during the holidays and beyond.

Former Service Members Seeking Discharge Upgrades Face Continued Challenges

Posted on by Becky Haugen

Service members separated from the military without an honorable discharge have limited access to veterans’ benefits and may have trouble obtaining employment.  Veterans who believe their discharge involved an error or injustice can apply to have review boards consider their case for a potential upgrade or clemency.  Current and former Service members can also apply to have errors in their military records corrected.

 

Since 2011, the Department of Defense has issued six guidance memoranda directing those review boards on how to conduct their review of these requests:

  • The “Stanley Memo” (2011), on occasion of repeal of Don’t Ask, Don’t Tell, instructs boards to change discharge statuses, narrative reasons, and other derogatory information where veteran (1) discharged under DADT or prior policies and (2) no aggravating circumstances exist

 

  • The “Hagel Memo” (2014) requiring the boards to take a trauma-informed “liberal consideration” approach when evaluating discharge upgrade requests from veterans with Post-Traumatic Stress Disorder (PTSD) and related conditions.

 

  • The “Carson Memo” (2016) allows veterans with certain mental health conditions to apply to boards for correction no matter how long ago they were discharged, while also allowing previously-denied applicants to apply again with the benefit of the Hagel Memo.

 

  • The “Kurta Memo” (2017) greatly expanded on the Hagel Memo “liberal consideration” standard and clarifies how PTSD, traumatic brain injury (TBI), military sexual trauma (MST) and other mental health conditions should be reviewed.

 

  • The “Wilkie Memo” (2018) emphasized the importance of granting discharge upgrades to ensure fundamental fairness and required the boards to consider clemency and rehabilitation in their decision-making process

 

  • The “Vazirani Memo” (2024) provided clarifying guidance regarding the application of “liberal consideration” in cases requesting correction in order to establish eligibility for medical retirement or medical separation benefits.

 

Despite more than a decade of these policy reforms, veterans still face inconsistent application of the standards referenced in these memoranda.  For example, a 2025 GAO report found that discharge review boards and correction boards fail to apply “liberal consideration” consistently. Many veterans continue to experience delays, procedural errors, and unclear communication that can hinder access to benefits.

How Our Firm Can Help

We represent Service members, veterans, USPHS and NOAA officers, and federal employees nationwide in:

  • Discharge upgrades
  • BCMR/BCNR records corrections
  • Federal adverse actions and MSPB appeals
  • Security clearance and suitability issues
  • Medical licensure and privileging disputes

If you believe your discharge or personnel records do not reflect the full story of your service, our attorneys can help you navigate the process and present the strongest possible case.

About the Law Offices of David P. Sheldon, PLLC

 

The Law Offices of David P. Sheldon, PLLC, based in Washington, D.C., represents military service members, federal employees, and uniformed officers nationwide. Our attorneys have decades of experience in military justice, administrative law, and defending the rights of those who serve. From courts-martial defense to correction of military records and retirement benefits appeals, we fight to ensure fairness and justice for every client.

 

Disclaimer

 

This article is for informational purposes only and does not constitute legal advice. Viewing this information does not create an attorney-client relationship.

 

Department of Defense Directory of Memorandums

Memorandum – Stanley

Memorandum – Hagel

Memorandum – Carson

Memorandum – Kurta

Memorandum – Wilkie

Memorandum – Vazirani

 

 

Passports, Power, and Identity: The Supreme Court’s Latest Blow to Transgender Rights

Posted on by Becky Haugen

Passport

Passports, Power, and Identity: The Supreme Court’s Latest Blow to Transgender Rights:

Overview:

On November 6, 2025, the Supreme Court granted a stay, thus allowing the Department of State to continue to enforce a policy requiring all new U.S. passports to list the sex assigned at birth rather than a gender‐identity marker or an “X” designation.

The policy reversed 33 years of previous practice which allowed applicants to select gender markers consistent with their identity.

A lower federal court had preliminarily enjoined the new policy, finding potential irreparable harm to transgender, nonbinary, and intersex individuals (a position supported by the three Justices who dissented from the stay decision); the Supreme Court’s stay suspends that injunction while the underlying litigation continues.

In short: the Court’s action does not dispose of the merits, but it immediately permits the government’s policy to be enforced while appeals proceed—raising significant legal and practical implications for identity recognition and travel. Notably, the Court’s opinion also indicated its preliminary view that the Government is  likely to succeed in the case.

Effect on Military Service Members and Federal Employees

From a legal vantage point, this opinion is about much more than a technical change in the content of travel documents, it constitutes a meaningful shift in how identity, service, and federal recognition intersect for service members and federal employees who are transgender or nonbinary.

At its core, the policy change presents three principal categories of legal concern: (1) mobility and assignment risk; (2) documentary alignment and clearance/fitness burdens; and (3) the doctrinal posture of transgender rights under equal protection and administrative law.

Mobility and Assignment Risk

For a service member or federal employee, passports are not mere travel credentials, they can be mission-essential equipment. When a member’s official identity document reflects a gender marker inconsistent with their lived identity, the risk is operational: at foreign borders, in allied nation environments, on joint exercises, and during global deployments. A passport listing only the sex assigned at birth may immediately out a transgender or nonbinary individual, raising questions of security, host-nation reception, and force protection. The Court’s stay thus has the practical effect of making some assignments riskier for those individuals, even if their other credentials (military ID, DEERS, CAC, etc.) align with their gender identity.

Documentary Alignment and Federal Service Burden

The military and federal employment systems rely on coherence and consistency among personnel records, security clearances, travel documents, medical records, and identity verification systems. When a passport marker diverges from other records, it introduces friction: clearance adjudicators may wonder whether mismatched documents signal concealment or instability. Commanders may hesitate to send qualified individuals into roles where identity mismatches could degrade trust. Transgender and nonbinary persons, therefore, face a unique documentary burden: while their performance may meet standards, their identity alignment becomes a persistent administrative stressor.

Additionally, the policy sends a signal: even if the individual has changed their name, corrected records, and deployed without incident, the federal government now says that their passport will reflect their birth-sex, not their gender identity. That structural disjunction, between recognition in uniform and misrecognition in travel documents, raises novel career and administrative risks.

Doctrinal Posture: Equal Protection & Administrative Law

Legally, Trump v. Orr is important for how it frames transgender/nonbinary rights. In the district-court litigation underlying the stay (Orr v. Trump), the plaintiffs challenged the policy under the Fifth Amendment’s Equal Protection component, the Due Process right to travel, and the Administrative Procedure Act (APA) for arbitrary and capricious agency action. The government argued that listing sex at birth is a factual administrative classification and thus subject only to rational-basis review. The Supreme Court’s decision to allow the stay suggests that at least on the emergency docket it viewed the government’s interest in uniformity of government issuance and foreign-affairs deference as meriting temporary relief.

For military and federal employees, the doctrinal import is this: if the Court treats this kind of identity regulation as subject only to rational-basis review, then future policies impacting transgender and nonbinary individuals, whether in fitness standards, deployment eligibility, health care access, or records changes, may face a less rigorous judicial review threshold. The bureaucratic authority to define which identities count may grow larger.

Specific Implications for Service Members and Federal Employees

  • Service members with deployments, TDYs, or exchange billets abroad may now face additional barriers if their passport mis-identifies them. Commands may delay or cancel assignments citing “logistical or diplomatic risk.”
  • Noncommissioned and commissioned personnel seeking security clearances could face increased scrutiny if their records show inconsistencies between their identity and travel documentation—creating an unspoken impediment to advancement.
  • Veterans transitioning to federal civilian employment or contractor roles may see their mobility and international travel constrained, and their identity-related documentation mismatches may reduce eligibility for roles that require international travel or clearance.
  • The ruling signals to federal agencies that policies prerequisite to identity recognition (e.g., gender marker changes, name changes, affirming health care) may be vulnerable to future roll-backs or reinterpretations, complicating long-term planning for transgender and nonbinary federal employees.

Conclusion

While the stay in Trump v. Orr is temporary and the litigation remains ongoing, the immediate outcome is clear: the federal government will now issue passports that ignore gender identity in favor of sex assigned at birth. For transgender and nonbinary individuals in uniform or federal service, this decision shifts mobility from a right to a potential vulnerability, imposes administrative burdens, and signals that identity recognition by the state can be unilaterally narrowed. From a policy-defense standpoint, any advocacy for trans and nonbinary service members must now treat passports and travel documents as frontline rights, not peripheral concerns.

Key Legal Resources & References

  • Supreme Court Trump Passport Gender Ruling Washington Post
  • Orr v. Trump, Case No. 1:25-cv-10313 (D. Mass.). Case Law
  • Trump v. Orr, Application 25A319, Supreme Court. Supreme Court
  • Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Whitehouse.gov
  • ACLU Press Release, “Supreme Court Allows Trump Administration to Enforce Discriminatory Passport Policy.” American Civil Liberties Union
  • Lambda Legal, “Identity Document Guidance for Transgender, Nonbinary, Gender-Nonconforming + Intersex People.” Lambda Legal

After Years of Legal Barriers, Client Secures Critical Breakthrough in Mandamus Fight to Restore Full Appellate Review

Posted on by Becky Haugen

DC Barrett Perryman Courthouse

In a case defined by extraordinary perseverance and complex jurisdictional obstacles, a former Guantanamo detainee represented by Senior Military Defense Attorney Annie W. Morgan of the Law Offices of David P. Sheldon, PLLC, has taken a major step forward in the effort to secure the full measure of appellate review guaranteed under federal law.

For more than a decade, the client has fought, often against procedural roadblocks not of their own making, to obtain a lawful review of their conviction by the United States Court of Military Commission Review (USCMCR), as required under 10 U.S.C. § 950f(d). Despite years of delay, shifting interpretations of waiver rules, repeated abeyances, and a novel assertion of the fugitive disentitlement doctrine, the client has refused to abandon the pursuit of lawful, congressionally mandated review.

Today’s development underscores one truth: the client’s courage, resilience, and insistence on the rule of law have kept this case alive when institutions failed to act.

A Story of Unusual Persistence in the Face of Systemic Delay

The client’s path to justice has been anything but direct. Though Congress established mandatory appellate review for military commission cases, the procedural history of this matter has been marked by:

  • Multiple delays and long periods of abeyance at the USCMCR
  • Government-created procedural roadblocks to obtain the record necessary for appeal, requiring mandamus intervention
  • A eventual dismissal based on the fugitive disentitlement doctrine, despite the client’s transfer being conducted under a formal diplomatic agreement—not flight, evasion, or refusal to appear and client remaining subject to lawful extradition

At every stage, the client remained steadfast. At every barrier, the client continued to assert the right Congress guarantees.

“This case has always been about ensuring that the Rule of Law is honored,” said Annie Morgan. “Our client has shown extraordinary strength in the face of procedural obstacles that should never have occurred. Their resilience is the reason we are still moving forward. And we will continue to fight until the statutory right to review is finally fulfilled.”

Why This Case Matters

This fight extends well beyond a single appeal. At its core, it speaks to:

  • The long-standing brokenness of the military commissions systems;
  • The duty of tribunals to exercise the jurisdiction Congress mandates; and
  • The fundamental principle that no person, no matter the forum, should lose their rights due to administrative delay or misapplied doctrine.

Congress was explicit:
The USCMCR “shall review the record in each case submitted to it.” (10 U.S.C. § 950f(d)).

When agencies fail to act, the courts must intervene. That is the purpose of mandamus—and the reason this client’s fight continues.

ABOUT THE LAW OFFICES OF DAVID P. SHELDON, PLLC

The Law Offices of David P. Sheldon, PLLC is a premier national practice focused on military law, federal employment, veteran’s rights, and the defense of service members across all uniformed services. Our team litigates before military commissions, federal courts, the Board for Correction of Military Records, the MSPB, and agencies across the United States. We are committed to protecting those who serve.

DISCLAIMER

This press release provides general information regarding ongoing litigation and does not offer legal advice. No confidential client details have been disclosed. Past results do not guarantee future outcomes.