MAXWELL KADEL; JASON FLECK; CONNOR THONEN-FLECK, by his next friends and parents, JASON FLECK and ALEXIS THONEN; JULIA MCKEOWN; MICHAEL D. BUNTING, JR.; C.B., by his next friends and parents, MICHAEL D. BUNTING, JR. and SHELLEY K. BUNTING; and SAM SILVAINE v. DALE FOLWELL, in his official capacity as State Treasurer of North Carolina; DEE JONES, in her official capacity as Executive Administrator of the North
1:19CV272
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
March 10, 2020
LORETTA C. BIGGS, District Judge
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
North Carolina offers healthcare coverage to its employees through a State Health Plan (the “State Health Plan” or the “Plan“).
Before the Court are two motions to dismiss: Defendants University of North Carolina at Chapel Hill, North Carolina State University, and University of North Carolina at Greensboro (together, the “University Defendants“) move to dismiss Plaintiffs’ Title IX claim (ECF No. 30), whereas Defendants Dale Folwell, Dee Jones, and the North Carolina State Health Plan for Teachers and State Employees (“NCSHP“) (together, the “State Defendants“) seek dismissal of Plaintiffs’ Equal Protection and ACA claims, (ECF No. 32). For the reasons that follow, both motions will be denied.
I. BACKGROUND
Plaintiffs are all current or former employees of University Defendants, or the dependents of said employees. (ECF No. 1 ¶¶ 7-11.) All are enrolled, or were enrolled, in the State Health Plan. (Id. ¶ 1.) Further, all are, or are the parents of, transgender individuals with a condition called gender dysphoria. (See id. ¶¶ 3, 61, 69, 82, 98, 115.)
According to Plaintiffs’ complaint, each of us has an internal sense of being a particular gender; a gender identity. (Id. ¶ 24.) For most people, gender identity is consistent with the sex we are assigned at birth. However, transgender men and women have gender identities which differ from their assigned sexes. This incongruence can result in gender dysphoria— “a feeling of clinically significant stress and discomfort born out of experiencing that something is fundamentally wrong.” (Id. ¶ 27.) Gender dysphoria is a recognized medical condition which, if left untreated, may result in severe anxiety, depression, or suicidal ideation. (See id. ¶¶ 27-29.)
Further, the complaint alleges that treatment for gender dysphoria includes gender transition, which is the process of “com[ing] to live in a manner consistent with . . . gender identity.” (Id. ¶ 31.) For some people, medical intervention is “a critical part” of gender transition. (Id. ¶ 35.) Obtaining a psychological diagnosis of gender dysphoria is a first step. (Id.) Later, certain secondary sex characteristics (for example, hair-growth patterns and body fat distribution) can be masculinized or feminized through hormone replacement therapy. (Id. ¶ 36.) In some cases, gender-confirming surgery is ultimately needed to “better align . . . primary or secondary sex characteristics with . . . gender identity.” (Id. ¶¶ 37-38.) These treatments are not “cosmetic, elective, or experimental“; rather, they are “safe, effective, and medically necessary treatments for a serious health condition.” (Id. ¶ 39 (quotations omitted).)
With the exception of the 2017 plan year, the State Health Plan has categorically excluded coverage for transition-related healthcare since the 1990s. (Id. ¶ 45; ECF No. 33 at 8.) The Plan‘s third-party administrators—Blue Cross Blue Shield of North Carolina (“BCBSNC“), which administers
In this way, Plaintiffs allege, the Plan “single[s] out employees who are transgender, or who have transgender dependents, for unequal treatment.” (Id. ¶ 56.) On March 11, 2019, they initiated this action against their employers and the Plan‘s administrators for declaratory and injunctive relief, as well as damages. (Id. at 38.) Their three-count complaint asserts the following claims: (1) that by maintaining the Exclusion, Defendants Folwell and Jones discriminate on the bases of both sex and transgender status in violation of the Fourteenth Amendment‘s Equal Protection Clause; (2) that by offering the Plan to their employees, the University Defendants discriminate on the basis of sex in violation of Title IX; and (3) that by administering the Plan, Defendant NCSHP discriminates on the basis of sex in violation of Section 1557 of the ACA. (Id. ¶¶ 124-57.) Defendants now move to dismiss all three claims pursuant to Federal Rules of Civil Procedure 12(b)(1), (6), and (7).3 (ECF Nos. 30; 32.)
II. LEGAL STANDARDS
Under
A motion to dismiss filed pursuant to
Finally,
III. DISCUSSION
The Court‘s analysis will proceed as follows. Objections to the two statutory claims (Title IX and ACA) will be evaluated first. Next, the Court will analyze whether Plaintiffs have sufficiently pleaded an Equal Protection claim. Last, the Court will address joinder and Defendants’ suggestion that, barring dismissal, this Court should stay proceedings during the pendency of R.G. & G.R. Harris Funeral Homes, which is now before the Supreme Court.
A. Title IX Claim
i. Article III Standing
University Defendants challenge Plaintiffs’ Title IX claim on three fronts. The first is standing. Parties invoking federal jurisdiction bear the burden of establishing that they have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). As it relates to the Title IX claim, University Defendants contend that the second and third elements—traceability and redressability—are lacking. (See ECF No. 31 at 6-13.)
The State Health Plan‘s structure and core operating procedures are dictated by statute. NCSHP is the Plan‘s corporate
University Defendants argue that Plaintiffs’ alleged injuries are not “fairly traceable” to their conduct because, under the statutory framework detailed above, they cannot dictate the Plan‘s terms, benefits, or exclusions. (See ECF No. 31 at 7-11.) However, Article III traceability is not so rigid. As the Fourth Circuit has explained, “the fairly traceable standard is not equivalent to a requirement of tort causation.” See Hutton v. Nat‘l Bd. of Exam‘rs in Optometry, Inc., 892 F.3d 613, 623 (4th Cir. 2018) (quotations omitted); see also Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014) (“Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff‘s injury be fairly traceable to the defendant‘s conduct.“). Rather, traceability merely requires a causal connection between the defendant‘s conduct and the plaintiff‘s injury, such that “there is a genuine nexus” between the two. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000). Moreover, at the pleading stage, “general factual allegations of injury resulting from the defendant‘s conduct may suffice” to establish traceability, as “each element [of standing] must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561; see also Bennett v. Spear, 520 U.S. 154, 171 (1997) (acknowledging that, at the pleading stage, the traceability burden is “relatively modest“).
As alleged in the complaint, University Defendants “offer[ ]” (or offered) the Plan to Plaintiffs, and “participate” (or participated) in its availability. (ECF No. 1 ¶¶ 18, 143.) Indeed, had University Defendants not hired Plaintiffs, they would not have been permitted to enroll in the Plan at all. The Court finds that, at this stage, those facts provide a sufficient nexus between the alleged injuries and University Defendants. However, the case for traceability is further bolstered by other aspects of the statutory scheme governing the Plan.4 For example,
as “employing units,” University Defendants play an active role in collecting erroneous payments,
University Defendants also argue that a judgment against them would be unlikely to redress Plaintiffs’ alleged injuries. (See ECF No. 31 at 11-13.) To satisfy the redressability prong, a plaintiff must show that it is “likely, and not merely speculative, that a favorable decision will remedy the injury.” Friends of the Earth, 204 F.3d at 154 (citing Lujan, 504 U.S. at 561). University Defendants contend that they are incapable of remedying Plaintiffs’ alleged injuries because only State Defendants have the ability to formally lift the Exclusion. (See ECF No. 31 at 12-13.) Be that as it may, there are other ways in which a favorable ruling on Plaintiffs’ Title IX claim could give them the relief they seek. First, Plaintiffs have asked for—and “personally would benefit in a tangible way” from—an award of damages. See Friends of the Earth, 204 F.3d at 162 (quoting Warth v. Seldin, 422 U.S. 490, 508 (1975)); (ECF No. 1 at 38). Second, it appears that University Defendants could offer supplemental healthcare coverage, beyond what the Plan provides, for the treatment of gender dysphoria. The parties disagree as to whether University Defendants actually have such power under state law; University Defendants insist they do not,5 (see ECF No. 31 at 10), while Plaintiffs and State Defendants insist they do, (see ECF Nos. 33 at 9; 35 at 13). Regardless, it is clear that a favorable decision by this Court has the potential to redress Plaintiffs’ injuries. Thus, Plaintiffs have plausibly alleged sufficient facts to support standing at this stage of the litigation and may pursue their Title IX claim against University Defendants.
ii. Zone of Interests
Next, University Defendants argue that Plaintiffs Connor Thonen-Fleck and C.B. (the “minor plaintiffs“), as well as their respective parents, Plaintiffs Jason Fleck and Michael Bunting Jr. (the “parent plaintiffs“), lack a statutory cause of action under Title IX. (See ECF Nos. 31 at 15-17; 39 at 7-9). A plaintiff who seeks relief for violation of a statute must fall “within the class of plaintiffs whom Congress has authorized to sue” under that statute—the “zone of interests.” Lexmark, 572 U.S. at 128-29. “To determine if a plaintiff is within the ‘zone of interests,’ we simply look to the statute itself.” Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 656 (4th Cir. 2019). The test is therefore straightforward, “requir[ing] nothing more than [the application of] ‘traditional principles of statutory interpretation.‘” Id. (quoting Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 708 (4th Cir. 2016)).
Title IX provides, in relevant part, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
University Defendants argue that these connections are too tenuous to put Plaintiffs within the zone of interests. The language of Title IX says otherwise. The minor plaintiffs are “person[s] in the United States” who, as dependents, are entitled to the “benefits of” their parents’ employment, and they allege that University Defendants have “denied” them said benefits on the “basis of [their] sex.”6 See
As explained above, “the breadth of the zone of interests” hinges on the statute at issue. See Lexmark, 572 U.S. at 130 (citation omitted). Nevertheless, University Defendants argue that another statute—Title VII of the Civil Rights Act of 1964—should bear on the
Court‘s determination as to whether the parent plaintiffs may bring claims on their children‘s behalf. (See ECF No. 31 at 16.) It is true that courts sometimes look to Title VII for guidance in interpreting Title IX. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007). However, in key respects, the two are “vastly different statute[s].” See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005) (“Title IX is a broadly written general prohibition on discrimination . . . [while] Title VII spells out in greater detail the conduct that constitutes discrimination in violation of that statute.“). As is relevant here, Title VII‘s text limits its scope to discrimination against an individual “because of such individual‘s . . . sex.”
iii. 12(b)(6)
The last objection University Defendants make is that Plaintiffs have failed to state a cognizable claim for relief against them. (ECF No. 31 at 13.) To state a claim under Title IX, a plaintiff must allege: “(1) that he was [denied the benefits of] an education program because of his sex; (2) that the educational institution was receiving federal financial assistance
The Supreme Court recently heard arguments in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107, 139 S. Ct. 1599 (Mem) (2019). A decision is expected this term. The central question in that case is whether Title VII‘s sex discrimination provisions cover discrimination against transgender individuals based on (1) their status as transgender, or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See id. Because courts in this circuit often look to Title VII when construing like terms in Title IX, see Jennings, 482 F.3d at 695, the Supreme Court‘s decision could potentially impact the viability of the Title IX claim in this case.
At this time, however, this Court is left to make its own determination as to whether discrimination “on the basis of sex” encompasses discrimination on the basis of transgender status. While the Fourth Circuit has not ruled on the question, two district courts in this circuit have concluded that claims of discrimination on the basis of transgender status are per se actionable under Title VII (and, by extension, Title IX). See Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 746-47 (E.D. Va. 2018); M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 715 (D. Md. 2018). This Court agrees with their reasoning and follows it here.
In Price Waterhouse, six Justices agreed that Title VII bars discrimination not just on the basis of gender, but on the basis of gender stereotyping as well. 490 U.S. at 250-51; id. at 259 (White, J. concurring); id. at 272-73 (O‘Connor, J., concurring). In that case, a woman was denied partnership in an accounting firm for acting too masculine. See id. at 235 (“[I]n order to improve her chances for partnership . . . Hopkins [was advised to] “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.“). Noting that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,” the Price Waterhouse Court recognized that discrimination “because of sex” includes discrimination based on nonconformity with the norms and behaviors typically associated with a given sex. See id. at 251.
Over the last two decades, courts across the country have followed the logic of Price Waterhouse in allowing claims of sex discrimination brought by transgender individuals, who, by definition, do not adhere to the stereotypes associated with their assigned sexes. See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 571 (6th Cir. 2018); Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1048-50 (7th Cir. 2017); Glenn v. Brumby, 663 F.3d 1312, 1316-19 (11th Cir. 2011); Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213, 215-16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000); see also G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 654 F. App‘x 606, 607 (4th Cir. 2016) (Davis, J., concurring in denial of stay) (agreeing “that discrimination . . . based on . . . transgender status is discrimination because
More recently, in Boyden v. Conlin, the Western District of Wisconsin applied the principles outlined in Price Waterhouse to a case with facts extraordinarily similar to those here. See 341 F. Supp. 3d 979 (W.D. Wis. 2018). Like North Carolina, Wisconsin‘s health insurance plan for state employees excluded medical services “associated with gender reassignment.” Id. at 988. Siding with the transgender employees challenging the state‘s plan, the court reasoned that the exclusion unavoidably “implicate[d] sex stereotyping by limiting the availability of medical transitioning . . . thus requiring individuals to maintain the physical characteristics of their natal sex.” Id. at 997. This amounted to differential treatment “on the basis of sex,” the court held, and triggered the protections of both Title VII and the ACA‘s anti-discrimination provision. Id.
The same is true here. By denying coverage for gender-confirming treatment, the Exclusion tethers Plaintiffs to sex stereotypes which, as a matter of medical necessity, they seek to reject. See id. (“[T]he Exclusion entrenches the belief that transgender individuals must preserve the . . . attributes of their natal sex.“). This Court therefore finds that, under the reasoning outlined in Price Waterhouse, Plaintiffs have properly alleged discrimination “on the basis of sex.”
The Exclusion also discriminates on the basis of natal sex—that is, the sex one was assigned at birth—by denying equal access to certain medical procedures, depending on whether an individual‘s assigned sex is male or female. For example, a cisgender woman born without vagina may qualify for a vaginoplasty (the surgical creation of a vagina) to correct that congenital defect; however, a transgender woman (whose natal sex is male) would not be able to seek the same procedure, even if deemed medically necessary to treat gender dysphoria. Likewise, while a cisgender woman may opt to undergo breast reconstruction after a cancer-related mastectomy, a person whose assigned sex is male cannot receive coverage for breast augmentation to aid in gender transition. In this way, the Exclusion discriminates not just based on nonconformance with sex stereotypes, but based on employee‘s physical sex characteristics as well.
University Defendants do not seriously contest that discrimination because of transgender status is discrimination because of sex (though State Defendants do). Rather, in moving to dismiss for failure to state a claim, they simply rephrase their arguments related to standing. (See ECF No. 31 at 13-15.) There is no dispute that “a recipient of federal funds may be liable in damages under Title IX only for its own misconduct,” see Davis v. Monroe Cty. Bd. of Ed., 526 U.S. 629, 640 (1999) (emphasis added); the parties just disagree over whether University Defendants’ conduct is sufficiently implicated in this case, (compare ECF No. 31 at 14, with ECF No. 35 at 16). Plaintiffs have alleged that, as employing units, University Defendants offer the Plan and play a role in its operation. At this stage, those allegations are enough—both to plausibly allege standing and to support a Title IX claim against the universities. Accordingly, University Defendants’ motion to dismiss must be denied.
B. ACA Claim
Plaintiffs’ second statutory claim is brought under Section 1557 of the ACA, which provides, in relevant parts, (1) that “an individual shall not, on the ground prohibited under . . . [T]itle IX . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance,” and (2) that “[t]he
In our federalist system, Article III judicial power is constrained by principles of dual sovereignty. The Eleventh Amendment guarantees that, in the ordinary course, a private party may not sue an unconsenting state (or its governmental units) in federal court. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001); Madison v. Virginia, 474 F.3d 118, 129 (4th Cir. 2006). However, nothing prevents a state from choosing to waive its immunity. See Sossamon v. Texas, 563 U.S. 277, 284 (2011). For instance, Congress often conditions participation in federal spending programs on a waiver of sovereign immunity. See Madison, 474 F.3d at 124 (“The Spending Clause is a permissible method of encouraging a State to conform to federal policy choices, because the [State] . . . can always decline the federal grant.” (quotations omitted)). A state may waive its immunity by participating in such programs, so long as Congress has expressed “a clear intent to condition participation . . . on a State‘s consent to waive its constitutional immunity.” Litman v. George Mason Univ., 186 F.3d 544, 550 (4th Cir. 1999) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985)). Waiver may never be implied under these circumstances; rather, the requirement of consent must be “unmistakably clear in the language of the statute.” Sossamon, 563 U.S. at 284-85 (citation omitted).
Section 1557 does not purport to condition a state‘s acceptance of federal funding on a waiver of sovereign immunity. Nor does any other provision of the ACA. However, in the Civil Rights Remedies Equalization Act of 1986 (“CRREA“), Congress explicitly stated that a state shall not be immune from suit in federal court “for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.”
Like the four statutes named in CRREA, Section 1557 is a nondiscrimination provision which is directly aimed at recipients of federal funding. See id. (reasoning that, “[a]t a minimum” a provision must “be aimed at discrimination” and “require identical treatment of similarly situated individuals” to fit within CRREA‘s catch-all language). In fact, the kinds of discrimination prohibited by Section 1557 coincide with those referenced in CCREA. Compare
[T]itle IX . . . the Age Discrimination Act . . . or [Section 504 of the Rehabilitation Act]“), with
Nevertheless, State Defendants argue that North Carolina could not have waived its immunity with respect to this particular lawsuit, as “[n]othing in the text of Section 1557 [or CRREA] references discrimination on the basis of gender identity or transgender status.” (See ECF No. 33 at 26.) Of course, “[s]tates cannot knowingly accept conditions of which they are ‘unaware’ or which they are ‘unable to ascertain.‘” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). However, North Carolina‘s potential exposure to suits brought by transgender individuals for discrimination on the basis of sex should not have been “surprising.”9 See
Pennhurst, 451 U.S. at 25. As explained above, see supra at III.a.iii, courts across the country have acknowledged for decades that sex discrimination
In sum, the Court concludes that Section 1557, when read in conjunction with CRREA, effectuates a valid waiver of sovereign immunity. In light of that waiver, and because Plaintiffs have plausibly alleged a claim of sex discrimination under Title IX, see supra at III.A.iii, they have likewise succeeded in stating a plausible claim of discrimination under Section 1557. See
C. Equal Protection Claim
In addition to their Title IX and ACA claims, Plaintiffs bring an Equal Protection claim against Defendants Folwell and Jones10 in their official capacities. (ECF No. 1 ¶¶ 124-38.)
The Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
Discrimination is not always obvious. A policy may appear facially neutral, but nonetheless be discriminatory by design or applied in a discriminatory fashion. See generally Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Sometimes, however, the government‘s chosen classification will be clear from the text of the law or policy itself. Plaintiffs argue that that is the case here, (see ECF No. 34 at 14), and the Court agrees.
On its face, the Exclusion bars coverage for “treatment in conjunction with proposed gender transformation” and “sex changes or modifications.” (ECF No. 1 ¶ 55 (emphasis added).) The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. State Defendants attempt to frame the Exclusion as one focused on “medical diagnoses, not . . . gender.” (ECF No. 37 at 6.) However, the diagnosis at issue—gender dysphoria—only results from a discrepancy between assigned sex and gender identity. Cf. McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (“[A]n employer cannot be permitted to use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination,” such as “gray hair as a proxy for age.“). In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.11
A policy that classifies on the basis of gender violates the Equal Protection Clause unless the state can provide an “exceedingly persuasive justification” for the classification. See United States v. Virginia, 518 U.S. 515, 531 (1996). “The burden of justification is demanding,” and the state must show “at least that the challenged classification [1] serves important governmental objectives and [2] that the discriminatory means employed are substantially related to the achievement of those objectives.” Id. at 533 (citation omitted). At this early stage, State Defendants have failed to satisfy this demanding standard. In fact, the only justification presented thus far is that the Exclusion “save[s] money.” (ECF No. 33 at 19.) Under ordinary rational-basis review, that could potentially be enough to thwart Plaintiffs’ claim. See, e.g., Armour v. City of Indianapolis, 566 U.S. 673, 682 (2012) (holding that concerns about administrative expense provided a rational basis for classification). However, when heightened scrutiny applies, “a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens.” Mem. Hosp. v. Maricopa Cty., 415 U.S. 250, 263 (1974). Accordingly,
D. Joinder
As its final ground for dismissal, State Defendants assert that Plaintiffs have failed to join the Plan‘s Board of Trustees as a required party. (See ECF No. 33 at 11 n.1.) State Defendants are correct that, under North Carolina law, “[t]he Treasurer and the Board of trustees must agree to alter Plan benefits.” Id. However, that does not mean that the Board‘s absence would prevent this Court from “accord[ing] complete relief among [the] existing parties.” See
E. Request for Stay
The Court will now consider Defendants’ alternative request that this action be stayed pending the Supreme Court‘s resolution of Harris Funeral Homes, 139 S. Ct. 1599 (2019). (See ECF Nos. 31 at 17-18; 37 at 6 n.1.) As acknowledged above, Harris could have a significant effect on this case. See Hickey v. Baxter, 833 F.2d 1005 (4th Cir. 1987) (unpublished table decision) (affirming district court‘s discretionary stay pending Supreme Court resolution of relevant issues). Nevertheless, “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936). A party seeking a stay must therefore “justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative.” Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983). Accepting their allegations as true, the potential harm to Plaintiffs resulting from even a mild delay is significant, as they will continue to be denied healthcare coverage for medically necessary procedures. In contrast, the “harm” to Defendants of not staying this case appears to be nothing more than the inconvenience of having to begin discovery.
Judicial economy is, of course, a consideration. However, this case is in its infancy, and it may be months before a decision is issued in Harris—a substantial delay for those seeking to vindicate their civil rights. See, e.g., Sehler v. Prospect Mortg., LLC, No. 1:13cv473(JCC/TRJ), 2013 WL 5184216, at *3 (E.D. Va. Sept. 16, 2013) (denying stay because four to six months represented a “significant period of delay“). Given the ongoing harm to Plaintiffs, and Defendants’ failure to present “clear and convincing circumstances” outweighing that harm, this Court declines to exercise its discretion to stay the proceedings.
IV. CONCLUSION
For the foregoing reasons, the Court will deny Defendants’ motions to dismiss and alternative request for stay. Plaintiffs have stated cognizable claims under Tile IX, the ACA, and the Equal Protection Clause. They have sufficiently alleged both Article III standing and entitlement to pursue statutory causes of action under Title IX and the ACA. State Defendants’ claim of sovereign immunity also fails here, as does its argument that the absence of the Plan‘s Board of Trustees
ORDER
IT IS THEREFORE ORDERED that University Defendants’ Motion to Dismiss, (ECF No. 30), and State Defendants’ Motion to Dismiss, (ECF No. 32), are each DENIED in their entirety.
This, the 10th day of March 2020.
/s/ Loretta C. Biggs
United States District Judge