SUSAN NEESE, et al., Plaintiffs, v. XAVIER BECERRA, in his official capacity as the Secretary of the United States Department of Health and Human Services, et al., Defendants.
2:21-CV-163-Z
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
November 11, 2022
OPINION AND ORDER
In his Bostock dissent, Justice Alito foresaw how litigants would stretch the majority opinion like an elastic blanket to cover categories, cases, and controversies expressly not decided. Justice Alito warned: “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court‘s reasoning.” 140 S. Ct. 1731, 1783 (2020) (Alito, J., dissenting); see also id. at 1781 (Alito, J., dissenting) (“Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.“).
And here we are . . . .
Before the Court is Plaintiffs Susan Neese and James Hurly‘s Motion for Summary Judgment (“Plaintiffs’ Motion“) (ECF No. 46) and Defendants’ Motion for Summary Judgment (“Defendants’ Motion“) (ECF No. 55).1 Having considered the pleadings and applicable law, the Court GRANTS IN PART Plaintiffs’ Motion and GRANTS IN PART Defendants’ Motion.
BACKGROUND
Section 1557 of the Affordable Care Act prohibits discrimination “on the basis of sex.” See
Citing Bostock, the United States Department of Health and Human Services (“HHS“) announced it would “interpret and enforce” Section 1557‘s prohibition on discrimination “on the basis of sex” to include “on the basis of sexual orientation” and “on the basis of gender identity.” See generally
Plaintiffs — two Texas-based physicians — allege Defendants misread Bostock and argue that healthcare providers may continue sex-specific medical decisions relevant to “gender identity” “so long as one does not engage in ‘sex’ discrimination when doing so.” ECF No. 11 at 5. Specifically, Plaintiffs allege neither Section 1557 nor Bostock prohibits such discrimination, “as long as they would have acted in the exact same manner if the patient had been a member of the opposite biological sex.” ECF No. 17 at 16. Plaintiffs “object only to the Secretary‘s claim that Bostock defined ‘sex’ discrimination to encompass all forms of discrimination on the basis of sexual orientation or gender identity.” Id. Plaintiffs state they “fully intend to comply with Bostock and its interpretation of ‘sex.‘” Id.
Plaintiffs make sex-specific decisions relevant to “gender identity” in their medical practices — and both receive federal money subject to Section 1557. See generally ECF No. 11. Dr. Neese “has treated patients suffering from gender dysphoria in the past and has on occasion prescribed hormone therapy for them.” Id. at 5-6. But Dr. Neese “does not believe that hormone therapy or sex-change operations are medically appropriate for everyone who asks for them, even if those individuals are suffering from gender dysphoria, and she will on occasion decline to prescribe hormone therapy or provide referrals for sex-change operations.” Id. at 6. “Dr. Neese is categorically unwilling to prescribe hormone therapy to minors who are seeking to transition, and she is equally unwilling to provide referrals to minors seeking a sex-change operation.” Id. She “believes that it is unethical to provide ‘gender affirming’ care to transgender patients in situations where a patient‘s denial of biological realities will endanger their life or safety.” Id.
Plaintiffs allege “Dr. Neese has treated many transgender patients . . . in the past, and she expects to continue doing so in the future.” Id. Dr. Neese claims she “is likely to encounter minor transgender patients who will request hormone therapy and referrals for sex-change operations that she is unwilling to provide, as well as adult transgender patients who will deny or dispute their need for preventive care that corresponds to their biological sex, and she intends to provide care to these individuals in a manner consistent with her ethical beliefs.” Id.
Dr. Hurly “recognizes that some biological men may identify as women (and vice versa).” Id. at 7. In his practice, Dr. Hurly “has encountered situations . . . when he must insist that a patient acknowledge his biological sex rather than the gender identity that he asserts.” Id. Plaintiffs provide an example: Dr. Hurly “once diagnosed a biological male patient with prostate cancer, but the patient refused to accept Dr. Hurly‘s diagnosis because he identified as a woman and insisted that he could not have a prostate.” Id. Dr. Hurly “explain[ed] to this patient that he was indeed a biological man with a prostate, and that he needed to seek urgent medical treatment for his prostate cancer.” Id. Plaintiffs claim, “Dr. Hurly has treated transgender patients in the past, and he expects to continue doing so in the future.” Id. They allege: “Dr. Hurly is likely to encounter transgender patients who will deny or dispute their need for health care that corresponds to their biological sex, and he intends to provide care to these individuals
Plaintiffs bring two causes of action: one under the
The Court previously denied Defendants’ motion to dismiss and granted Plaintiffs’ motion for class certification. See generally ECF Nos. 30, 65. The Court certified a class of all healthcare providers subject to Section 1557. Plaintiffs now move for summary judgment on each claim. See generally ECF No. 46. Defendants also seek summary judgment, asking that the Court render judgment in Defendants’ favor on Plaintiffs’ two claims and dismiss this action. See generally ECF No. 55.
LEGAL STANDARD
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
When reviewing summary-judgment evidence, the court must resolve all reasonable doubts and draw all reasonable inferences in the light most favorable to the non-movant. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). A court cannot make a credibility determination when considering conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. If some evidence supports a disputed allegation, so that “reasonable minds could differ as to the import of the evidence,” the court must deny the motion. Id. at 250.
ANALYSIS
The issues raised in the motions for summary judgment are whether: (1) Plaintiffs possess standing; (2) the Notification is not in accordance with the law; and (3) Section 1557 prohibits discrimination on the basis of SOGI. The Court will address standing before proceeding to the two merits arguments.
A. Plaintiffs Have Standing
The judicial power of federal courts is limited to certain “cases” and “controversies.”
The Court previously found Plaintiffs have standing because they face a “credible threat of enforcement” that creates an “injury in fact” that is “concrete and particularized” and “actual or imminent.” ECF No. 30 at 9 (internal marks omitted); see also ECF No. 65 at 5 (same). The Court will not once again adjudicate standing here.
B. The Notification Is “Not in Accordance with the Law”
Congress enacted the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, collectively known as the Affordable Care Act (“ACA“), in March 2010.
Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under . . . title IX of the Education Amendments of 1972 (
20 U.S.C. 1681 et seq. ) . . . 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.
What does “on the basis of sex” mean as used in Title IX? Defendants offer a simple answer: apply Bostock. Bostock “proceed[ed] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” 140 S. Ct. at 1739. Notwithstanding this assumption, the Supreme Court devised a “but-for cause” test and determined Title VII‘s “because of . . . sex” terminology should be read to prohibit “sexual orientation” and “gender identity” discrimination in employment. See id. Applying Bostock, Defendants ask the Court to implement a “but-for cause” test and interpret Title IX‘s “on the basis of sex” terminology identically to Title VII‘s “because of . . . sex” language. See ECF No. 56 at 26.
For the reasons explained below, however, Bostock does not apply to Section 1557 or Title IX. And the Court will not export Bostock‘s reasoning to Section 1557 or Title IX. Instead, the Court analyzes “on the basis of sex,” as used in Title IX (and incorporated into Section 1557), by giving the term its ordinary public meaning at
1. Bostock does not apply to Section 1557 or Title IX.
Bostock does not purport to interpret Section 1557, Title IX, or any other non-Title VII statute. As the majority opinion states:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination . . . . But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today . . . .
The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual‘s sex.’
Bostock, 140 S. Ct. at 1753 (emphasis added).
Bostock decided only what Bostock decided: under Title VII, “[a]n employer who fires an individual merely for being gay or transgender defies the law.” Id. at 1754; see also Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021) (“[T]he rule in Bostock extends no further than Title VII.“); Adams v. Sch. Bd. of St. Johns Cnty., Fla., 3 F.4th 1299, 1336 (11th Cir. 2021) (Pryor, C.J., dissenting) (stating Bostock‘s reasoning applies to Title VII, not Title IX). One cannot rely on the words and reasoning of Bostock itself to explain why the Court prejudged what the Court expressly refused to prejudge. See Pelcha, 988 F.3d at 324 (”Bostock was clear on the narrow reach of its decision and how it was limited only to Title VII itself.” (emphasis added)); Washington v. U.S. Dep‘t of Health and Hum. Servs., 482 F. Supp. 3d 1104, 1115 (W.D. Wash. 2020) (“[I]t remains unclear whether, or to what extent, Bostock‘s rationale will ultimately be applied to Title IX and Section 1557.“).3
2. Bostock‘s reasoning does not apply to Section 1557 or Title IX.
Defendants argue Bostock and its reasoning apply to Section 1557 and, accordingly, discrimination “on the basis of sex” includes discrimination on the basis of “sexual orientation” and “gender identity.” See ECF No. 56 at 25 (“Section 1557‘s prohibition of discrimination ‘on the basis of sex’ can also be satisfied by showing but-for causation.“). “Defendants do not argue that Title IX includes discrimination on the basis of sexual orientation and gender identity as distinct, additional grounds of prohibited discrimination.” Id. at 25 n.5. They instead assert “Section 1557 prohibits discrimination on the basis of sexual orientation and discrimination on the basis of gender identity because discrimination on either of those grounds necessarily involves discrimination on the basis of sex.” Id. Defendants support this proposition with three categories of case law: (1) Supreme Court; (2) Fifth Circuit; and (3) other circuits. None of the law Defendants cite persuades the Court to export Bostock‘s reasoning into Section 1557 or Title IX.
a. No precedential authority exports Bostock to the Title IX context.
Defendants cite Franklin v. Gwinnett County Public Schools to argue the Supreme
Defendants next cite two Fifth Circuit cases. See ECF No. 56 at 26-27 (citing Lakoski v. James, 66 F.3d 751, 757 (5th Cir. 1995), and Pederson v. La. State Univ., 213 F.3d 858, 880 (5th Cir. 2000)). Defendants rely on these cases (which, again, pre-date Bostock by decades) for the proposition that “the prohibitions of discrimination on the basis of sex of Title IX and Title VII [are] the same.” Id. at 26 (quoting Lakoski, 66 F.3d at 757). Because, as the cases suggest, “Title IX‘s proscription of sex discrimination . . . does not differ from Title VII‘s,” Defendants assert the Court must interpret “on the basis of sex” under title IX to include discrimination because of “sexual orientation” and “gender identity.” Lakoski, 66 F.3d at 757; see also Pederson, 213 F.3d at 880 (explaining Title IX violated when an “institution intended to treat women differently because of their sex“).
The Court is not persuaded that these pre-Bostock cases have much force here. Notably, these cases consider only Title IX‘s application to biological sex. See generally Lakoski, 66 F.3d 751; Pederson, 213 F.3d 858. And although the opinions invoke “because of” terminology in relation to “sex,” they do not hold Title IX protects “sexual orientation” and “gender identity” status — or adopt the “but-for causation” test. See Manor Coll., 587 F. Supp. 3d at 255 (Once more, “Title IX does not use the word ‘because.‘“). In essence, Defendants seek to retroactively apply Bostock‘s interpretation of Title VII to judicial opinions predating Bostock by two decades and related to Title IX by incidental wordplay. It strains credulity to aver that the Fifth Circuit preemptively applied Bostock‘s “but-for” reasoning to Title IX because two words overlap.
Finally, Defendants cite two cases from the Fourth and Ninth Circuits. See ECF No. 56 at 27 (citing Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020), and Doe v. Snyder, 28 F.4th 103 (9th Cir. 2022)). Again, these cases do not persuade the Court to export Bostock‘s reasoning to the Title IX context. In Grimm, the Fourth Circuit stated with scant analysis: “Although Bostock interprets Title VII of the Civil Rights Act of 1964, it guides our evaluation of claims under Title IX.” 972 F.3d at 616 (internal marks omitted). The Fourth Circuit simply cited Jennings v. University of North Carolina for this proposition but did not elaborate further. See 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of
Likewise, the Ninth Circuit adopted Bostock‘s reasoning because that circuit “construe[s] Title IX‘s protections consistently with those of Title VII.” Snyder, 28 F.4th at 114. The Ninth Circuit did so despite expressly acknowledging that the statutes employ different language, reasoning that Bostock interchangeably used “because of sex” and “on the basis of sex” throughout the majority opinion. See id. True enough. Yet just because a judicial opinion employs two phrases interchangeably in one context does not mean Congress employed those same terms interchangeably in a different context.4
In the Fifth Circuit, however, all Title VII case law does not unquestionably apply to Title IX. See, e.g., Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 655-56 (5th Cir. 1997); Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993); Beasley v. St. Tammany Par. Sch. Bd., No. 96-2333, 1997 WL 382056, at *3 (E.D. La. July 9, 1997) (“Unlike other circuits, this circuit
does not blindly apply Title VII standards to the Title IX context.“). Although the Fifth Circuit has held “transgender discrimination is a form of sex discrimination under Title VII,” it has not held as much with respect to Title IX or Section 1557. Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 603 (5th Cir. 2021). The Court will not reflexively apply new Title VII precedent in the Title IX context.5 Accordingly, the Court finds non-precedential opinions of other federal judicial circuits to be unpersuasive here.
b. “Based on sex” does not mean “based on SOGI.”
Title IX reads no person “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 [except as provided throughout the statute].”
“Title VII differs from Title IX in important respects.” Meriwether v. Hartop, 992 F.3d 492, 510 n.4 (6th Cir. 2021). Title IX is not Title VII, and “on the basis of sex” is not “because of sex.”7 See Manor Coll., 587 F. Supp. 3d at 255 (“Title IX does not use the word ‘because.’ . . . Thus, . . . statutory interpretation of the word ‘because’ does not apply to Title IX.“). The Court must give full effect to the difference in word choice. Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 224 (1967) (“[W]hen
Notably, other federal entities — including the Department of Education — have proposed regulations redefining “sex” in Title IX to include “sexual orientation” and “gender identity.” See
Congress employs the same word, it normally means the same thing, when it employs different words, it usually means different things.“). By failing to acknowledge the different phrases Title VII and Title IX employ, the Court “would risk amending [the] statutes outside the legislative process reserved for the people‘s representatives.” Bostock, 140 S. Ct. at 1738.
Title IX presumes sexual dimorphism in section after section, requiring equal treatment for each “sex.” See, e.g.,
Title IX‘s prohibition against discrimination “on the basis of sex” cannot be reduced to a literalist but-for test. For instance, although not at issue here, Section 1686 states: “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.”
As evidenced above, Title IX expressly allows sex distinctions and sometimes even requires them to promote equal opportunity. Defendants’ theory actively “undermine[s] one of [Title IX‘s] major achievements, giving young women an equal opportunity to participate in sports.” Bostock, 140 S. Ct. at 1779 (Alito, J., dissenting).8
to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.” Id. at 1779-80 (Alito, J., dissenting).9
Although courts start with the words themselves, the text should be “interpreted in its statutory and historical context and with appreciation for its importance to the [statute] as a whole.” Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 471 (2001); see also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 468-69 (1985) (Marshall, J., concurring in part and dissenting in part) (“A sign that says ‘men only’ looks very different on a bathroom door than a courthouse door.“). “[C]ontext always includes evident purpose.” SCALIA & GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 63. And “evident purpose always includes effectiveness.” Id.
Title IX‘s “overarching purpose,” which is “evident in the text” itself, is to prohibit the discriminatory practice of treating women worse than men and denying opportunities to women because they are women (and vice versa). AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011).
As many courts have recognized, “Title IX was enacted in response to evidence of pervasive discrimination against women with respect to educational opportunities.” McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 285 (2d Cir. 2004); see also Cannon, 441 U.S. at 704 & n.36.10 “[I]t would require blinders to ignore that the motivation for promulgation of the regulation on athletics was the historic emphasis on boys’ athletic programs to the exclusion of girls’ athletic programs in high schools as well as colleges.” Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 175 (3d Cir. 1993).
Defendants’ reinterpretation of Title IX through the Notification imperils the very opportunities for women Title IX was designed to promote and protect — categorically forcing biological women to compete against biological men.11 “A community made up exclusively of one sex is different from a community composed of both.” United States v. Virginia (VMI), 518 U.S. 515, 533 (1996) (internal marks omitted). The “physical differences between men and women . . . are enduring: the two sexes are not fungible.” Id. (internal marks omitted). Such “immutable” distinctions between the sexes are “determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973). For example, “[m]en and women simply are not physiologically the same for the purposes of physical fitness programs,” because “equally fit men and women demonstrate their fitness differently.” Bauer v. Lynch, 812 F.3d 340, 350-51 (4th Cir. 2016); see also Clark v. Ariz. Interscholastic Ass‘n, 695 F.2d 1126, 1131 (9th Cir. 1982) (“[D]ue to average physiological differences, males would displace females to a substantial extent if they were allowed to compete” for the same teams.).
“‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual‘s opportunity.” United States v. Virginia, 518 U.S. 515, 533 (1996). Some “physical fitness standards suitable for men may not always be suitable for women, and accommodations addressing physiological differences between the sexes are not necessarily unlawful.” Bauer, 812 F.3d at 350. Indeed, Title IX and its implementing regulations protect some such accommodations to promote equality of women. See, e.g.,
Ironically, Defendants’ interpretation invites SOGI discrimination by excluding student-athletes from participating on the
interpretations consistent with the legislative purpose are available.“). There are, of course, outlier individuals with physical attributes above or below their sex‘s average. Yet sex-separated sports only exist to accommodate the average physiological differences between the sexes. Title IX is not written for individual, case-by-case sex separation. The statute instead applies to each sex as a whole.
Moreover, Title IX says nothing about “sexual orientation” and “gender identity.” And why would it? Title IX‘s protections center on differences between the two biological sexes — not SOGI status.13 Sure enough, members of Congress have attempted to amend Title IX to shield such categories from discrimination. See, e.g., H.R. 1652, 113th Cong. (2013); S. 439, 114th Cong. (2015). But those members have repeatedly failed. By contrast, Congress has enacted hate crimes legislation with enhanced penalties for crimes motivated by “sexual orientation” or “gender identity.” See, e.g.,
Indeed, under Defendants’ interpretation, Title IX and its regulations would protect behavior Defendants likely find abhorrent. Title IX exempts institutions “traditionally” limited to “only students of one sex,” “youth service organizations” traditionally “limited to persons of one sex,” and “living facilities for the different sexes.”
These contradictions and conflicts arise in the healthcare context to which Section 1557 applies. For example, a hospital could not tailor care to the biological differences between men and women. See Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 674 & n.8 (N.D. Tex. 2016). Importing Bostock-style reasoning or similar “but-for cause” analysis to Title IX would presumptively criminalize sex-specific treatments
Title IX‘s ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court. See Cochise Consultancy, Inc. v. U.S. ex rel. Hunt, 139 S. Ct. 1507, 1512 (2019) (“In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning.“). As noted above, the ordinary public meaning of “sex” turned on reproductive function when Congress enacted Title IX. For an action to occur “on the basis of sex,” biological sex must be the motivating factor. “On the basis of sex” does not connote a derivative, “but-for causation” analysis like the Supreme Court reasoned “because of sex” does. See Bostock, 140 S. Ct. at 1739. Consequently, the Court will not judicially import Bostock‘s “but-for causation” test into Title IX. See SCALIA & GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 101 (rejecting view that “when courts confront generally worded provisions, they should infer exceptions for situations
that the drafters never contemplated and did not intend their general language to resolve“). And because the Court finds Title IX‘s “on the basis of sex” language does not include “sexual orientation” or “gender identity” status, the Court holds the Secretary cannot alter the phrase by administrative fiat. See Franciscan Alliance, Inc. v. Becerra, 553 F. Supp. 3d 361, 371 n.7 (N.D. Tex. 2016). “After all, only the words on the page constitute the law.” Bostock, 140 S. Ct. at 1738; see also Grimm, 972 F.3d at 628 (Niemeyer, J., dissenting) (Reading “sexual orientation” and “gender identity” into Title IX and Section 1557 would “do[] no more than express disagreement with Title IX and its underlying policies, which is not, of course, the role of courts tasked with deciding cases and controversies.“).
C. Section 1557 Does Not Prohibit Discrimination on the Basis of SOGI Status
Plaintiffs seek three primary remedies: (1) “hold unlawful and set aside Secretary Becerra‘s Notification“; (2) “enjoin Secretary Becerra from using or enforcing the interpretation of [S]ection 1557 that appears in the Notification“; and (3) issue “declaratory relief.” ECF No. 11 at 11.
When a legal issue is “fit for judicial resolution” and a regulation “requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the
The APA allows a litigant to seek judicial review of “final agency action for which there is no other adequate remedy in a court.”
Under the DJA, “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”
1. This declaratory action is justiciable.
The DJA does not create an independent cause of action. Harris County v. MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015). In a declaratory-judgment action, the relevant cause of action is the defendant‘s anticipated lawsuit against the plaintiff. See Collin County v. Homeowners Ass‘n for Values Essential to Neighborhoods, 915 F.2d 167, 171 (5th Cir. 1990) (“Since it is the underlying cause of action of the defendant against the plaintiff that is actually litigated in a declaratory judgment action, a party bringing a declaratory judgment action must have been a proper party had the defendant brought suit on the underlying cause of action.“); Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1179 (5th Cir. 1984) (“[T]he underlying cause of action which is thus actually litigated is the declaratory defendant‘s, not the declaratory plaintiff‘s . . . .“); Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 500 (5th Cir. 2020) (Oldham, J., concurring) (“[T]he Declaratory Judgment Act . . . does not create a standalone cause of action. Rather, . . . [i]t allows parties who
Because Defendants threaten to enforce their interpretation “on the basis of sex” found in the Notification, Plaintiffs can bring this declaratory-judgment action without waiting to see if Defendants will make good on their threats. See Collin County, 915 F.2d at 170 (“The Declaratory Judgment Act is designed to afford parties, threatened with liability, but otherwise without a satisfactory remedy, an early adjudication of an actual controversy. . . . [A] party who has an interest in the outcome of future litigation can petition the court for a declaration of its rights and liabilities.“); Tex. Employers’ Ins. Assoc. v. Jackson, 862 F.2d 491, 505 (5th Cir. 1988) (Litigants need not “be put to the Hobson‘s choice of foregoing their rights or acting at their peril; nor, if they had already acted, would they be forced to wait, for perhaps many years, until the statute of limitations expired, to know whether they had been subjected to some significant liability.“). And even if the DJA does not supply Plaintiffs a cause of action, they possess an independent cause of action under
2. The Court has the authority to grant declaratory relief.
A district court lacks authority to grant declaratory relief and “may not consider the merits of [a] declaratory judgment action when:” (1) “a declaratory defendant has previously filed a cause of action in state court against the declaratory plaintiff“; (2) “the state case involves the same issues as those involved in the federal case“; and (3) “the district court is prohibited from enjoining the state proceedings under the Anti-Injunction Act.” Travelers Ins. Co. v. La. Farm Bureau Fed‘n, 996 F.2d 774, 776 (5th Cir. 1993) (emphasis removed). Nothing before the Court indicates there is a pending state-court proceeding between the parties whose existence divests this Court of its authority to grant declaratory relief.
In exercising its discretion to decide or dismiss a declaratory action, a district court should consider seven nonexclusive factors, including whether:
- there is a pending state action in which all of the matters in controversy may be fully litigated;
- the plaintiff filed suit in anticipation of a lawsuit filed by the defendant;
- the plaintiff engaged in forum-shopping in bringing the suit;
- possible inequities in allowing the declaratory plaintiff to gain precedence in time or to change forums exist;
- the federal court is a convenient forum for the parties and witnesses;
- retaining the lawsuit would serve the purposes of judicial economy; and
- the federal court is being called on to construe a state judicial decree involving the same parties and entered by the court before whom the parallel state suit between the same parties is pending.
Sherwin-Williams, 343 F.3d at 388 (quoting St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590-91 (5th Cir. 1994)).
The Court finds application of these factors favors exercise of the Court‘s discretion to grant declaratory relief. Regarding factor one, the Court is unaware of any pending state action involving the parties in which all the matters in controversy
CONCLUSION
Based on the above, the Court GRANTS IN PART Plaintiffs’ Motion. The Court awards Plaintiffs’ requested relief under the APA and DJA, excluding injunctive relief. The Court GRANTS IN PART Defendants’ Motion and DENIES Plaintiffs’ request for injunctive relief. The Court DENIES all other relief not expressly stated herein. The Court ORDERS parties to submit competing proposed judgments within 10 days of the date of this Opinion and Order.
SO ORDERED.
November 11, 2022
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE