414 F.Supp.3d 928
N.D. Tex.2019Background:
- Plaintiffs (including Franciscan Alliance and state and private plaintiffs) challenged HHS’s 2016 "Nondiscrimination in Health Programs & Activities" Rule (45 C.F.R. § 92) interpreting Section 1557 to prohibit discrimination on the basis of gender identity and to forbid categorical exclusions for abortion/termination-of-pregnancy coverage.
- The district court entered a nationwide preliminary injunction on December 31, 2016 and stayed further proceedings while HHS reconsidered the Rule; the stay was later lifted after two years when the Rule remained on the books.
- Putative intervenors (ACLU of Texas and River City Gender Alliance) sought to intervene to defend the Rule; the court deferred intervention earlier but revisited it after defendants (HHS) changed position and declined to defend the Rule.
- Defendants ultimately agreed the Rule’s provisions on gender identity and termination of pregnancy conflict with Section 1557 and did not oppose renewed intervention; Plaintiffs opposed intervention as of right, arguing intervenors lacked a legally protectable interest.
- The court granted the intervenors’ motion to intervene as of right (finding inadequate representation and sufficient associational interests for intervention at this stage), held that the Rule violates the APA and RFRA as applied, and VACATED and REMANDED the unlawful portions of the Rule; it declined to issue a separate nationwide injunction because vacatur and the defendants’ position made an injunction unnecessary.
- The court severed and retained APA and RFRA claims (severing other claims) and invited Plaintiffs to seek further relief if defendants fail to comply; order dated October 15, 2019.
Issues:
| Issue | Plaintiffs' Argument | Defendants'/Putative Intervenors' Argument | Held |
|---|---|---|---|
| Intervention—right to intervene under Rule 24(a)(2) | Intervenors lack a legally protectable interest and their evidence is hearsay/speculative | Defs no longer defend Rule; intervenors have associational interests and seek to defend the Rule | Intervention granted as of right: timeliness, protectable interest, impairment, and inadequate representation satisfied (Defendants now concede Rule unlawful) |
| Permissive intervention under Rule 24(b) | Plaintiffs worried intervention could delay; would accept limited participation | Intervenors say their defense raises common legal questions; Defs do not oppose | Court would have permitted permissive intervention; conditions on participation imposed to avoid delay |
| APA claim—whether Rule is contrary to law (Section 1557/Title IX) | Rule exceeds or conflicts with Section 1557/Title IX and is unlawful | Intervenors defend Rule’s interpretation and urge record review; Defs later concede conflict | Court holds Rule is contrary to law under the APA and grants plaintiffs’ summary judgment in part; vacates and remands unlawful portions |
| RFRA—whether Rule substantially burdens religious exercise and survives strict scrutiny | Private plaintiffs: Rule substantially burdens their sincere religious exercise and is not least restrictive means | Intervenors assert government has compelling interest in nondiscriminatory access and preamble suffices; urge review of record | Court finds Rule substantially burdens Plaintiffs’ religious exercise and (with Defendants failing to carry RFRA burden) that Rule fails strict scrutiny; RFRA violation sustained |
| Remedy—vacatur vs permanent nationwide injunction | Plaintiffs seek vacatur and permanent nationwide injunction | Defendants ask limitation/postponement; intervenors oppose broad injunction | Court VACATES and REMANDS unlawful portions under APA and declines separate nationwide injunction because vacatur (and defendants’ position) provides meaningful relief; plaintiffs may return if enforcement occurs |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562 (5th Cir. 2016) (Rule 24 should be liberally construed; intervention where no one hurt)
- New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452 (5th Cir. 1984) (elements and standards for intervention as of right)
- Haspel & Davis Milling & Planting Co. v. Bd. of Levee Comm’rs, 493 F.3d 570 (5th Cir. 2007) (failure to satisfy any intervention prong precludes intervention)
- Town of Chester v. LaRoe County Estates, Inc., 137 S. Ct. 1645 (2017) (intervenor must have Article III standing to pursue relief different from an existing party)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (RFRA framework and strict-scrutiny two-prong test)
- Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006) (RFRA requires case‑by‑case, person‑specific analysis)
- Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360 (5th Cir. 2018) (vacatur in toto appropriate where regulation not severable)
- Sw. Elec. Power Co. v. EPA, 920 F.3d 999 (5th Cir. 2019) (vacatur/remand and severability principles under APA)