Toomey v. Arizona, State of ( 2021 )

1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Russell B Toomey, No. CV-19-00035-TUC-RM (LAB) 12 Plaintiff, ORDER 13 v. 14 State of Arizona, et al., 15 Defendants. 16 17 Pending before the Court are Plaintiff’s Motion for Preliminary Injunction (Doc. 18 115), Magistrate Judge Leslie A. Bowman’s Report and Recommendation (“R&R”) 19 recommending denial of the Motion for Preliminary Injunction (Doc. 134), Plaintiff’s 20 Objection to the R&R (Doc. 135), and a Response to the R&R filed by Defendants 21 Arizona Board of Regents (“ABOR”), Ron Shoopman, Larry Penley, Ram Krishna, Bill 22 Ridenour, Lyndel Manson, Karrin Taylor Robson, Jay Heiler, and Fred DuVal 23 (collectively, “University Defendants”) (Doc. 139). Defendants State of Arizona, Andy 24 Tobin, and Paul Shannon (“State Defendants”) replied to Plaintiff’s Objection. (Doc. 25 144.) The Court will deny the Motion for Preliminary Injunction, adopt in part the R&R, 26 and overrule Plaintiff’s and the University Defendants’ Objections. 27 . . . . 28 . . . . 1 I. Background 2 Plaintiff Dr. Russell B. Toomey is a transgendered male. (Doc. 1 at 12.) “He has a 3 male gender identity, but the sex assigned to him at birth was female.” (Id.) Dr. Toomey 4 has been living as a male since 2003 and has received medically necessary hormone 5 therapy and chest reconstruction surgery as treatment for diagnosed gender dysphoria. 6 (Doc. 1 at 12; Doc. 24 at 2.) Dr. Toomey is employed as an Associate Professor at the 7 University of Arizona. (Doc. 1 at 4.) His health insurance (“the Plan”) is a self-funded 8 plan provided by the State of Arizona. (Id. at 3, 10.) While the Plan provides coverage for 9 most medically necessary care, including care related to transsexualism and gender 10 dysphoria such as mental health counseling and hormone therapy, “gender reassignment 11 surgery” is excluded from coverage. (Id. at 3, 10, 13; Doc. 24 at 3.) 12 At the recommendation of his doctor, Dr. Toomey sought preauthorization for a 13 total hysterectomy from his provider, Blue Cross Blue Shield of Arizona (“BCBSAZ”). 14 (Doc. 24 at 3.) BCBSAZ refused to approve the procedure due to the Plan’s exclusion of 15 “gender reassignment surgery.” (Id. at 4.) Subsequently, Dr. Toomey filed an Equal 16 Employment Opportunity Commission (“EEOC”) Charge against the ABOR, alleging 17 sex discrimination under Title VII. (Doc. 24–1.) Upon receiving a Notice of Right to Sue, 18 he filed this lawsuit. (Doc. 39 at 15.) Plaintiff seeks declaratory relief, “including but not 19 limited to a declaration that Defendants . . . violated Title VII and . . . the Equal 20 Protection Clause,” as well as permanent injunctive relief “requiring Defendants to 21 remove the Plan’s categorical exclusion of coverage for gender reassignment surgery and 22 evaluate whether [Plaintiff’s] . . . surgical care for gender dysphoria is ‘medically 23 necessary’ in accordance with the Plan’s generally applicable standards and procedures.” 24 (Doc. 1 at 22.) 25 On December 23, 2019, this Court denied the State Defendants’ Motion to 26 Dismiss. (Doc. 69.) On June 15, 2020, this Court granted Plaintiff’s Motion to Certify 27 Class. (Doc. 108.) On that same day, the United States Supreme Court issued a decision 28 in Bostock v. Clayton County, Georgia holding that an employer violates Title VII by 1 firing an individual for being a transgender person, as doing so is discrimination “because 2 of” the individual’s sex. 140 S. Ct. 1731, 1741 (2020). In light of the Bostock decision, 3 the parties engaged in settlement discussions. (Doc. 110.) No settlement was reached. 4 On September 1, 2020, Plaintiff filed the instant Motion for Preliminary 5 Injunction. (Doc. 115.) On November 30, 2020, Magistrate Judge Bowman issued an 6 R&R recommending that this Court deny the Motion for Preliminary Injunction. (Doc. 7 134.) Plaintiff and the University Defendants filed Objections to the R&R. (Docs. 135, 8 139.) 9 II. Standard of Review 10 A district judge “may accept, reject, or modify, in whole or in part, the findings or 11 recommendations made by” a magistrate judge. 28 U.S.C. § 636(b)(1). The district 12 judge must “make a de novo determination of those portions” of the magistrate judge’s 13 “report or specified proposed findings or recommendations to which objection is made.” 14 Id.; see also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no 15 objection or only partial objection is made, the district court judge reviews those 16 unobjected portions for clear error.”). 17 In determining whether to grant preliminary injunctive relief, the Court considers: 18 (1) whether the movant “is likely to succeed on the merits”; (2) whether the movant is 19 “likely to suffer irreparable harm” in the absence of preliminary injunctive relief; (3) the 20 “balance of equities” between the parties; and (4) “the public interest.” Winter v. Nat. 21 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 22 III. Motion for Preliminary Injunction 23 Plaintiff seeks a preliminary injunction on behalf of himself and the class members 24 (1) barring Defendants from enforcing the categorical exclusion of coverage for gender 25 reassignment surgery from the Plan; (2) requiring Defendants to evaluate, on a case by 26 case basis, whether Dr. Toomey’s and/or any other class members’ prescribed surgical 27 care for gender dysphoria is “medically necessary” in accordance with the Plan’s 28 generally applicable standards and procedures; and (3) providing notice of the 1 preliminary injunction to individuals enrolled in the Plan. (Doc. 115 at 3.) 2 Plaintiff argues that he has met the four factors for granting preliminary injunctive 3 relief. (Id. at 7.) First, Plaintiff argues that he has demonstrated a likelihood of success on 4 the merits of the Title VII claim. (Id.) In support of this argument, Plaintiff relies on this 5 Court’s Order denying the Motion to Dismiss (Doc. 69), as well as two recent out-of- 6 circuit district court decisions and the Supreme Court’s Bostock decision. (Id. at 7-8.) 7 Plaintiff further argues that he is likely to succeed on the merits of the equal protection 8 claim. (Id. at 9.) Plaintiff argues that, as a matter of law, heightened scrutiny applies to 9 his equal protection claim, and Defendants are unlikely to carry their burden of proof 10 under the heightened scrutiny standard. (Id.) 11 Second, Plaintiff argues that he and the class members will suffer irreparable harm 12 absent the requested injunctive relief. (Id. at 10.) Plaintiff argues that, as a matter of law, 13 the denial of medically necessary care constitutes irreparable harm. (Id.) Plaintiff further 14 argues that discrimination against transgender individuals constitutes irreparable harm as 15 a matter of law. (Id. at 10-11.) Third, Plaintiff argues that the public interest and the 16 balance of equities between the parties both weigh in favor of granting injunctive relief. 17 (Id. at 11.) Plaintiff argues that the denial of both constitutional rights and medically 18 necessary care supports a finding that the balance of hardships and the public interest tip 19 in Plaintiff’s favor. (Id.) 20 The State Defendants oppose the requested injunctive relief. (Doc. 123.) First, the 21 State Defendants argue that the injunctive relief sought would effectively decide the case 22 because it would provide Plaintiff and the class members with all of the relief they seek 23 and effectively render this action moot; the State Defendants contend that such a result is 24 disfavored as a matter of law. (Id. at 2.) The State Defendants further argue that Plaintiff 25 seeks a mandatory injunction and has not met the heightened standard for granting such 26 relief. (Id.) Next, the State Defendants argue that Plaintiff is not likely to succeed on the 27 merits of his Title VII or equal protection claims. (Id.) Finally, the State Defendants 28 argue that Plaintiff has failed to show that he or the class members will suffer irreparable 1 harm in the absence of injunctive relief. (Id.) 2 The University Defendants also responded to the Motion for Preliminary 3 Injunction. (Doc. 122.) They do not oppose the requested injunctive relief as long as: (1) 4 the injunction entered against the ABOR is no greater than the injunction entered against 5 the State Defendants; and (2) the injunction is not entered against the individually named 6 Regents. (Id.) The University Defendants object to an injunction entered against the 7 ABOR but not the State, because the ABOR has no independent authority to provide the 8 health insurance coverage that Plaintiff seeks. (Id.) 9 IV. Report and Recommendation 10 The R&R recommends denying Plaintiff’s Motion for Preliminary Injunction. 11 (Doc. 134.) The R&R finds that Plaintiff’s burden of proof is heightened because he 12 seeks a mandatory injunction that would order Defendants to grant him the relief he seeks 13 in this case, and preliminary injunctive relief of that nature is generally disfavored. (Id. at 14 2-4.) 15 Addressing the first Winter factor, the R&R finds that Plaintiff is not likely to 16 succeed on the merits of his Title VII claim because he has not shown that the Plan’s 17 exclusion of gender reassignment surgery is discrimination on the basis of transgender 18 status. (Id. at 4.) The R&R construes Plaintiff’s Title VII claim as a disparate-treatment 19 claim, under which an employer treats an individual less favorably than others because of 20 a protected trait and a plaintiff must show that the discrimination was intentional. (Id.); 21 see also Ricci v. DeStefano, 557 U.S. 557, 577 (2009). The R&R reasons that Plaintiff is 22 not likely to succeed on his Title VII claim because he has not shown that the Plan’s 23 categorical exclusion of gender reassignment surgery provides proof of the State’s intent 24 to discriminate against transgender persons. (Id. at 4-8.) The R&R further reasons that 25 because the Plan’s exclusion discriminates against some natal females but not all, the 26 exclusion is not, on its face, discrimination based on sex. (Id. at 8.) The R&R further 27 finds that Plaintiff cannot show a likelihood of success on his equal protection claim 28 because the Plan exclusion is not facially discriminatory against all transgender persons. 1 (Id. at 8-9.) 2 The R&R finds that Plaintiff has shown that he is likely to suffer irreparable harm 3 in the absence of the requested injunctive relief, because without the relief he will be 4 denied timely medical care and such an injury cannot be remediated by money damages. 5 (Id. at 9.) The R&R makes no specific finding as to the balance of hardships and the 6 public interest, noting that there is no evidence before the Court regarding the cost of 7 surgery, how many class members might seek surgery, or the amount of suffering that 8 might be alleviated by granting injunctive relief. (Id. at 10.) 9 V. University Defendants’ Response to Report and Recommendation 10 The University Defendants filed a Response to the R&R that reiterates the 11 arguments they raised in their Response to the Motion for Preliminary Injunction. (Docs. 12 139, 122.) The University Defendants indicate they do not object to the requested 13 injunctive relief as long as (1) the injunction entered against the Arizona Board of 14 Regents is no greater than the injunction entered against the State, and (2) the injunction 15 is not entered against the individually named Regents. (Doc. 139.) 16 For the reasons explained below, the Court will not grant the requested injunctive 17 relief. Accordingly, to the extent the University Defendants’ Response to the R&R 18 constitutes an objection, it will be overruled. 19 VI. Plaintiff’s Objection to Report and Recommendation 20 Plaintiff filed an Objection the R&R. (Doc. 135.) First, Plaintiff argues that the 21 R&R erred in concluding that Plaintiff and the class members are unlikely to succeed on 22 the Title VII and equal protection claims. (Id. at 1.) Plaintiff disputes the R&R’s reliance 23 on and application of General Electric Co. v. Gilbert, 429 U.S. 125 (1976) (Title VII) and 24 Geduldig v. Aiello, 417 U.S. 484 (1974) (equal protection) for its finding that he is not 25 likely to succeed on the merits of his claims. (Id.) Plaintiff further disputes the R&R’s 26 finding that he can only prove his Title VII disparate-treatment claim by providing 27 evidence that Defendants were subjectively motivated by a discriminatory intent or 28 animus. (Id. at 1-2.) Plaintiff contends that the applicable standard is whether the Plan’s 1 exclusion is facially discriminatory, not whether the exclusion was motivated by a 2 discriminatory intent. (Id. at 2.) Plaintiff, relying on Bostock, contends that he has shown 3 that the gender reassignment surgery exclusion facially discriminates on the basis of sex 4 because the Plan’s exclusion directly implicates the characteristics of sex and gender and 5 discriminates based on gender nonconformity. (Id. at 3-4.) Plaintiff argues that Gilbert is 6 no longer controlling precedent following the passage of the Pregnancy Discrimination 7 Act, and that the R&R erred in concluding that the question under Title VII is whether a 8 given policy discriminates against all women or all men. (Id. at 5.) 9 Plaintiff further objects that he and the class members are likely to succeed on the 10 merits of the equal protection claim. (Id. at 6.) Plaintiff contends that the R&R made 11 similar errors analyzing the equal protection claim that it made analyzing the Title VII 12 claim. (Id. at 7.) Specifically, Plaintiff contests the R&R’s reliance on Geduldig and 13 argues that there is no rule that a facially discriminatory policy must affect every member 14 of a particular group in order to trigger heightened scrutiny. (Id.) Plaintiff argues that 15 facial discrimination in violation of the equal protection clause exists when a “defendant 16 discriminates against individuals on the basis of criteria that are almost exclusively 17 indicators of membership in the disfavored group,” and that such discrimination is 18 present here. (Id. at 8 (citing Pac. Shores Properties, LLC v. City of Newport Beach, 730 19 F.3d 1142, 1160 n.23 (9th Cir. 2013)).) Plaintiff further argues that Defendants have 20 failed to provide any evidence to carry their burden of proof under heightened scrutiny of 21 demonstrating that the exclusion serves an important governmental interest and “that the 22 discriminatory means employed” “are substantially related to the achievement of those 23 objectives.” (Id. at 9 (citing Sessions v. Morales-Santana, 137 S. Ct. 1678, 1690 (2017)).) 24 Plaintiff objects to the R&R’s findings regarding the balance of hardships and the 25 public interest, contending that the balance of hardships tips in his favor because the 26 denial of medically necessary care can violate the Eighth Amendment. (Id. at 9 (citing 27 Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019)).) 28 Lastly, Plaintiff objects to the R&R’s characterization of the requested injunctive 1 relief as a mandatory injunction. (Id. at 10.) Plaintiff argues that an injunction to prevent 2 future constitutional violations is a classic form of prohibitory injunction and should not 3 be subjected to the heightened mandatory injunction standard. (Id. (citing Hernandez v. 4 Sessions, 872 F.3d 976, 998 (9th Cir. 2017)).) Plaintiff disputes the R&R’s reliance on 5 past decisions that conflict with the Ninth Circuit’s more recent precedent in Hernandez. 6 (Id.) 7 The State Defendants responded to Plaintiff’s Objection. (Doc. 144.) The State 8 Defendants argue first that the R&R correctly determined that Plaintiff seeks a mandatory 9 injunction that disrupts the status quo rather than a prohibitory injunction that maintains 10 the status quo, and that Plaintiff has not met the heightened standard for mandatory 11 injunctive relief. (Id. at 2-3 (citing Stanley v. Univ. of S. California, 13 F.3d 1313, 1320 12 (9th Cir. 1994)).) The State Defendants further contend that the preliminary injunctive 13 relief sought would prematurely grant the ultimate relief Plaintiff and the class members 14 seek in this litigation—that is, gender-transition surgeries being paid for by the State— 15 even if the State ultimately prevails in the litigation. (Id. at 3-5 (citing Tanner Motor 16 Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-9 (9th Cir. 1963); RoDa Drilling Co. v. 17 Siegal, 552 F.3d 1203, 1208-9 (10th Cir. 2009)).) The State Defendants contend that 18 Plaintiff’s reliance on Hernandez is inapposite because Plaintiff has not demonstrated a 19 constitutional violation akin to the erroneous detention at issue in Hernandez. (Id. at 4.) 20 The State Defendants further argue that Plaintiff has not met the Winter factors 21 required for a preliminary injunction to issue. (Id. at 5.) Specifically, the State Defendants 22 argue that Plaintiff has not shown that (1) he is likely to succeed on the merits of either 23 his Title VII or his equal protection claim; (2) the balance of hardships favors granting 24 injunctive relief; or (3) the public interest favors granting injunctive relief. (Id. at 5-10.) 25 The State Defendants do not respond to or argue the “irreparable harm” factor. 26 VII. Applicable Law and Analysis 27 The Court declines to issue the requested preliminary injunctive relief for two 28 reasons. First, Plaintiff and the class members seek a mandatory injunction and have not 1 met the heightened standard for such relief to issue. Second, the requested injunctive 2 relief is identical to the ultimate relief Plaintiff and the class members seek in this 3 litigation, and the Court finds it premature to grant such relief prior to discovery and 4 summary judgment briefing. 5 A. Plaintiff has not met the standard for a mandatory injunction. 6 “A prohibitory injunction preserves the status quo,” while a “mandatory injunction 7 goes well beyond simply maintaining the status quo pendente lite and is particularly 8 disfavored.” Stanley, 13 F.3d at 1320 (internal citation and quotation omitted). “When a 9 mandatory preliminary injunction is requested, the district court should deny such relief 10 unless the facts and law clearly favor the moving party.” Id. “[G]enerally an injunction 11 will not lie except in prohibitory form.” Anderson v. United States, 612 F.2d 1112, 1115 12 (9th Cir. 1979) (internal citation omitted). Mandatory injunctions “are not granted unless 13 extreme or very serious damage will result and are not issued in doubtful cases or where 14 the injury complained of is capable of compensation in damages.” Id. Before reaching the 15 merits of a preliminary injunction, courts consider whether the injunctive relief sought is 16 prohibitory or mandatory. Stanley at 1320. 17 The injunctive relief that Plaintiff and the class members seek “goes well beyond 18 simply maintaining the status quo.” (See Doc. 115.) The status quo is the Plan as it 19 currently exists, including its exclusion of coverage for gender reassignment surgery. 20 Accordingly, Plaintiff seeks mandatory injunctive relief. Furthermore, the Court agrees 21 with the State that Hernandez does not support Plaintiff’s argument that an injunction 22 that orders compliance with the Constitution is necessarily prohibitory rather than 23 mandatory. Hernandez involves a violation of the Fifth Amendment Due Process Clause 24 in the immigration detention context. 872 F.3d at 998. Here, Plaintiff alleges a violation 25 of the Fourteenth Amendment Equal Protection Clause in the context of an employer’s 26 health insurance plan. (Doc. 86.) The Court does not find Hernandez sufficiently 27 analogous to the present case to justify applying Hernandez in the manner that Plaintiff 28 proposes. (Doc. 135 at 10.) 1 Plaintiff has not shown that “extreme or very serious damage will result” if the 2 injunctive relief sought does not issue. Anderson, 612 F.2d at 1115. Furthermore, it is not 3 clear that “the injury complained of is [not] capable of compensation in damages,” id., as 4 Plaintiff could potentially pay out-of-pocket for gender reassignment surgery and be 5 reimbursed by Defendants if he prevails on the merits. 6 B. Courts disfavor preliminary injunctive relief that is identical to the 7 ultimate relief sought. 8 “It is so well settled as not to require citation of authority that the usual function of 9 a preliminary injunction is to preserve the status quo . . . pending a determination of the 10 action on the merits.” Tanner Motor Livery, 316 F.2d at 808–09. “[I]t is not usually 11 proper to grant the moving party the full relief to which he might be entitled if successful 12 at the conclusion of a trial” in a preliminary injunction. Id. “This is particularly true 13 where the relief afforded, rather than preserving the status quo, completely changes it.” 14 Id.; see also RoDa Drilling, 552 F.3d at 1208–09 (“[B]efore we will grant [mandatory 15 injunctive] relief, we require a movant seeking such an injunction to make a heightened 16 showing of the four factors.”) 17 Plaintiff seeks injunctive relief (1) barring Defendants from enforcing the 18 exclusion of coverage for gender reassignment surgery from the Plan and (2) requiring 19 Defendants to evaluate, on a case by case basis, whether Dr. Toomey’s and/or any other 20 class members’ prescribed surgical care for gender dysphoria is “medically necessary” in 21 accordance with the Plan’s generally applicable standards and procedures. (Doc. 115.) 22 Plaintiff’s Amended Complaint seeks, in relevant part, “permanent injunctive relief. . . 23 requiring Defendants to remove the Plan’s categorical exclusion of coverage for ‘gender 24 reassignment surgery’ and evaluate whether Dr. Toomey and the proposed classes’ 25 surgical care for gender dysphoria is ‘medically necessary’ in accordance with the Plan’s 26 generally applicable standards and procedures.” (Doc. 86 at 15.) 27 The injunctive relief and the ultimate relief that Plaintiff seeks are identical. 28 Precedent counsels against granting such relief in the absence of extraordinary 1 || circumstances that are not present here. 2 Accordingly, 3 IT IS ORDERED that the Report and Recommendation (Doc. 134) is adopted 4|| only to the extent it recommends denying the Motion for Preliminary Injunction on the □□ grounds that Plaintiff has not met the heightened standard for obtaining mandatory || preliminary injunctive relief, and is otherwise rejected. 7 IT IS FURTHER ORDERED that the Motion for Preliminary Injunction (Doc. 8 || 115) is denied. 9 IT IS FURTHER ORDERED that Plaintiff's Objection (Doc. 135) is overruled. 10 IT IS FURTHER ORDERED that the University Defendants’ Objection (Doc. 11 |} 139) is overruled. 12 Dated this 26th day of February, 2021. 13 14 ff phils □□ 16 Honorable Rostehary Mafquez 17 United States District □□□□□ 18 19 20 21 22 23 24 25 26 27 28 -ll-