Mayor and City Council of Balt v. Alex Azar, II

FILED: March 27, 2020
AMENDED: March 30, 2020
AMENDED: March 31, 2020
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 19-1614 (L)
(1:19-cv-01103-RDB)
___________________
MAYOR AND CITY COUNCIL OF BALTIMORE
Plaintiff - Appellee
v.
ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human
Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant
Secretary, Office of Population Affairs; UNITED STATES DEPARTMENT OF
HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS
Defendants - Appellants
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OHIO; ALABAMA; ARKANSAS; INDIANA; KANSAS; LOUISIANA; NEBRASKA;
OKLAHOMA; SOUTH CAROLINA; SOUTH DAKOTA; TENNESSEE; TEXAS;
UTAH; WEST VIRGINIA
Amici Supporting Appellant
NEW YORK, NEW YORK CITY HEALTH + HOSPITALS AND 10 LOCAL
GOVERNMENTS; NATIONAL HEALTH LAW PROGRAM; ADVOCATES FOR
YOUTH; AMERICAN MEDICAL STUDENT ASSOCIATION; AMERICAN
SOCIETY FOR REPRODUCTIVE MEDICINE; COMMUNITY CATALYST; THE
ENDOCRINE SOCIETY; FAMILIES USA; IN OUR OWN VOICE: NATIONAL
BLACK WOMEN'S REPRODUCTIVE JUSTICE AGENDA; JUVENILE LAW
CENTER; THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS;
NATIONAL COUNCIL OF JEWISH WOMEN; NARAL PRO-CHOICE AMERICA;
NATIONAL ABORTION FEDERATION; NATIONAL IMMIGRATION LAW
CENTER; NATIONAL INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL
LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL
PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN'S HEALTH
NETWORK; NATIONAL WOMEN'S LAW CENTER; NORTHWEST HEALTH
LAW ADVOCATES; POSITIVE WOMEN'S NETWORK-USA; POWER TO
DECIDE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF
AMERICAN RABBIS; WOMEN OF REFORM JUDAISM; MEN OF REFORM
JUDAISM; UNITE FOR REPRODUCTIVE & GENDER EQUITY; WHITMAN-
WALKER HEALTH; WOMENHEART; YWCA OF THE USA; NATIONAL
CENTER FOR LESBIAN RIGHTS; GLMA: HEALTH PROFESSIONALS
ADVANCING LGBT EQUALITY; THE LGBT MOVEMENT ADVANCEMENT
PROJECT; NATIONAL LGBTQ TASK FORCE; EQUALITY FEDERATION;
SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE UNITED
STATES; FAMILY EQUALITY COUNCIL; THE NATIONAL CENTER FOR
TRANSGENDER EQUALITY; HIV MEDICINE ASSOCIATION; GLBTQ LEGAL
ADVOCATES & DEFENDERS; LAMBDA LEGAL DEFENSE AND EDUCATION
FUND, INCORPORATED; THE HUMAN RIGHTS CAMPAIGN; TRANSGENDER
LAW CENTER; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM; THE
INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL
OF LAW; NATIONAL CENTER FOR YOUTH LAW; AMERICAN ACADEMY OF
PEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS;
SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR
MATERNAL FETAL MEDICINE
Amici Supporting Appellee
___________________
No. 20-1215
(1:19-cv-01103-RDB)
___________________
MAYOR AND CITY COUNCIL OF BALTIMORE
Plaintiff - Appellee
v.
ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human
Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant
Secretary, Office of Population Affairs; UNITED STATES DEPARTMENT OF
HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS
Defendants - Appellants
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___________________
ORDER
___________________
Upon consideration of submissions in case No. 20-1215 relative to the
government’s motion for a stay pending appeal of the district court’s permanent
injunction, the court denies the motion.
For the Court
/s/ Patricia S. Connor, Clerk
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THACKER, Circuit Judge, concurring in grant of initial hearing en banc and denial of the
motion to stay:
My dissenting colleague and I agree on one thing -- initial hearing en banc requires
extraordinary circumstances. I am convinced this case presents an extraordinary
circumstance. The final agency rule at issue here has forced Planned Parenthood,
Baltimore, and numerous states to withdraw from the Title X program. The short-term
nature of pregnancy, the brief window for obtaining a legal abortion, and the imminent
harm to the City of Baltimore and its residents counsel in favor of expedited, initial en banc
consideration.
Moreover, I firmly disagree with the suggestion that initial hearing en banc in this
case -- duly chosen by the majority of active judges -- is anything less than a “purposeful
procedure.” Infra at 7. To the contrary, the Federal Rules and statutory law clearly provide
for such a procedure. See Fed. R. App. P. 35(a) (“A majority of the circuit judges who are
in regular active service and who are not disqualified may order that an appeal or other
proceeding be heard or reheard by the court of appeals en banc.” (emphasis supplied)); 28
U.S.C. § 46(c) (“Cases and controversies shall be heard and determined by a court or panel
of not more than three judges . . . , unless a hearing or rehearing before the court in banc
is ordered by a majority of the circuit judges of the circuit who are in regular active service”
(emphasis supplied)). Our Local Rules similarly contemplate that rehearing or hearing en
banc “is a review of the judgment or decision from which review is sought and not a review
of the judgment of the panel.” 4th Cir. Local R. 35(c). And the Supreme Court has
recognized that “[section] 46(c) treats ‘hearings’ and ‘rehearings’ with equality” and that
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the statute contemplates “initial hearing” en banc. W. Pac. R. Corp. v. W. Pac. R. Co., 345
U.S. 247, 259 (1953).
The disagreement between the majority of the active judges and our dissenting
colleague is just that -- a disagreement. Nothing nefarious to see here.
My colleague also references a tradition of the “past fifty years” that purportedly
eschewed initial en banc review. Infra at 7. But this assertion is belied by history. Besides
being fully authorized under statute, initial hearing en banc has traditionally been utilized
to address the legality of nationwide executive or agency action. In fact, twice in the last
three years, the majority of active judges of this court has voted to hear an appeal en banc
in the first instance. See Int’l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir.
2018), cert. granted, judgment vacated, 138 S. Ct. 2710 (2018); Int’l Refugee Assistance
Project v. Trump, 857 F.3d 554 (4th Cir. 2017), vacated and remanded, 138 S. Ct. 353
(2017). Moreover, the mechanism of initial hearing en banc is not absent from this court’s
history. Indeed, my dissenting colleague cites to the concurrence in the denial of initial
hearing en banc in Belk v. Charlotte-Mecklenburg Board of Education, 211 F.3d 853 (4th
Cir. 2000). But of note, in the same case, dissenting in the denial of an initial hearing en
banc, Judge Luttig observed, “Our court has with some frequency considered cases en banc
initially, as contemplated and authorized by statute.” Belk, 211 F.3d at 861 (Luttig, J.,
dissenting in the denial of an initial hearing en banc) (noting “that five prior published
opinions in [a precursor case] have all been initially decided by our court en banc”).
And if we were to go back further, we find additional examples. See, e.g., Meadows
v. Holland, 831 F.2d 493, 494 (4th Cir. 1987) (initial hearing en banc), vacated on other
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grounds, 489 U.S. 1049 (1989). The en banc court has even heard matters after a panel
hearing but before an opinion was filed. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th
Cir. 1996) (en banc) (“[A] panel of this court heard argument. While the case was under
submission, a majority of the court voted to hear it en banc.”); Thomasson v. Perry, 80 F.3d
915, 921 (4th Cir. 1996) (en banc) (same); Wright v. Nat’l Archives & Records Serv., 609
F.2d 702, 706 n.3 (4th Cir. 1979) (en banc) (“This appeal was originally heard on April 5,
1978 by a panel of the Court. Before any panel opinion was filed, rehearing en banc was
ordered.”); Hirschknop v. Snead, 594 F.2d 356, 361 n.* (4th Cir. 1979) (en banc) (noting
the Court ordered rehearing en banc after an opinion was circulated but before it was filed);
Hirst v. Comm’r, 572 F.2d 427, 428 (4th Cir. 1978) (en banc) (per curiam) (same).
Therefore, because the majority ruling here is far from a “sharp break with settled
practice,” infra at 7, I find my colleague’s concerns to be of no moment, and I concur in
the grant of initial hearing en banc, and the denial of the motion to stay.
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RICHARDSON, Circuit Judge, dissenting from the order denying the motion to stay:
In a sharp break with settled practice, our Court invokes the once-extraordinary
mechanism of initial-en-banc review to circumvent our conventional three-judge panel
process. We used to place great value in entrusting a panel of our colleagues with first
adjudicating the appeal. Doing so not only fostered collegiality but reflected the value of
deciding even controversial matters with adherence to a purposeful procedure. We
departed from this procedure in only the rarest of extraordinary circumstances. See Belk v.
Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853 (4th Cir. 2000) (Wilkinson, C.J.,
concurring in the denial of an initial hearing en banc). For the past fifty years, we followed
this practice through varied administrations and court compositions. Times have changed.
After taking the case from the assigned panel, the en banc Court then denies the
government’s motion for a stay of the district court’s order. That order enjoined an agency
rule that amended regulations governing federal grants for preconception family-planning
programs. The agency’s amendments essentially returned those regulations to the version
that the Supreme Court blessed in Rust v. Sullivan, 500 U.S. 173 (1991). Even so, the
district court found some of the rule’s provisions to be “arbitrary and capricious.” Having
found some provisions improper, the court enjoined enforcement of the entire rule. And it
did so for the whole State of Maryland, even though only the City of Baltimore sued. I
would grant the motion for a stay, particularly as the district court’s injunction applies to
provisions never held to be unlawful and is geographically broader than necessary.
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