Franciscan Alliance, Inc. et al v. Burwell et al

Filing 175

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, the Court finds that Putative Intervenors' Motion to Intervene (ECF No. 129 ) should be and is hereby GRANTED. The Court also finds that Plaintiffs' Motions for Summary Judgment an d Permanent Injunction (ECF Nos. 132 , 135 ) should be and are hereby GRANTED in part. The Court SEVERS Plaintiffs' APA and RFRA claims from their Title VII, Spending Clause, First Amendment, Tenth Amendment, and Eleventh Amendment claims. The Court ADOPTS its prior reasoning from the preliminary injunction (ECF No. 62 ) and now HOLDS that the Rule violates the APA and RFRA. Accordingly, the Court VACATES and REMANDS the Rule for further consideration. (Ordered by Judge Reed C. O'Connor on 10/15/2019) (skg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
FRANCISCAN ALLIANCE, INC., et al.,
Plaintiffs,
v.
ALEX M. AZAR II, Secretary of the
United States Department of Health and
Human Services; and UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendants.

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Civil Action No. 7:16-cv-00108-O

MEMORANDUM OPINION AND ORDER
Before the Court are Putative Intervenors American Civil Liberties Union of Texas’s and
River City Gender Alliance’s (collectively, “Putative Intervenors”) Renewed Motion to Intervene,
Brief in Support, and Appendix in Support (ECF Nos. 129–31), filed February 1, 2019; Plaintiffs’
Response (ECF No. 140), filed February 25, 2019; Defendants’ Response (ECF No. 141), filed
February 25, 2019; and Putative Intervenors’ Reply (ECF No. 144), filed March 11, 2019. Also
before the Court are Plaintiff States’ Renewed Motion for Summary Judgment, Brief in Support,
and Appendix in Support (ECF Nos. 132–34), filed February 4, 2019; Private Plaintiffs’ Renewed
Motion for Partial Summary Judgment, Brief in Support, and Appendix in Support (ECF Nos.
135–37), filed February 4, 2019; Defendants’ Response (ECF No. 154), filed April 5, 2019;
Putative Intervenors’ Response (ECF No. 155), filed April 5, 2019; Plaintiff States’ Reply (ECF
No. 157), filed May 3, 2019; and Private Plaintiffs’ Reply (ECF No. 158), filed May 3, 2019.

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I.

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BACKGROUND
In its December 31, 2016 Order granting Plaintiffs’ motions for a preliminary injunction

and applying the injunction throughout the country, the Court set forth the extensive statutory,
regulatory, and procedural background to this case. See Order 1–12, ECF No. 62. Since that time,
there have been several important procedural developments. On January 24, 2017, the Court
deferred ruling on Putative Intervenors’ original motion to intervene because it was not yet clear
whether Defendants would adequately represent Putative Intervenors’ interest. Order 7, ECF No.
69. On March 15, 2017, Plaintiffs filed a motion for summary judgment. Pls.’ Mot. Summ. J., ECF
No. 82. On March 27, 2017, Putative Intervenors filed a motion to stay proceedings pending appeal
of the Court’s denial of their motion to intervene. Putative Intervenors’ Mot. Stay, ECF No. 85.
On May 2, 2017, Defendants filed a motion to remand and stay litigation pending the United States
Department of Health and Human Services’ (“HHS”) reconsideration of the regulation at issue,
entitled Nondiscrimination in Health Programs & Activities (“the Rule”), 81 Fed. Reg. 31376
(May 18, 2016), codified at 45 C.F.R. § 92. Defs.’ Mot. Remand & Stay, ECF No. 92. On June
30, 2017, the Fifth Circuit declined to rule on Putative Intervenors’ motion to intervene as of right
because this Court had not yet ruled on the motion for permissive intervention. Fifth Circuit’s J.,
ECF No. 104. On July 10, 2017, after a hearing, the Court stayed the case in order to allow HHS
to review the Rule. Order, ECF No. 105. The Court deferred ruling on Putative Intervenors’
pending motion to intervene based on Defendants’ contention that a change to the Rule could moot
the case and on Putative Intervenors’ own concerns cited in their motion to stay. Id. On December
17, 2018, Plaintiffs and Defendants filed a joint motion to lift the stay and set a briefing schedule.1

1

On April 5, 2019, Defendants changed their position and asked the Court to postpone ruling on the motions
to intervene and for summary judgment. See Defs.’ Resp. 1–2, ECF No. 154. Defendants requested more
time to complete the ongoing efforts to amend the Rule. Id. Defendants asked that, alternatively, any relief
would be limited to redressing the injuries of the named Plaintiffs. Id.
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Joint Mot. Lift Stay, ECF No. 125. The Court granted the parties’ requests, lifting the stay and
setting a briefing schedule for Putative Intervenors’ renewed motion to intervene, as well as the
parties’ renewed motions for summary judgment. Order, ECF No. 126. Those motions are now
fully briefed and ripe for ruling. The Court granted HHS two years to complete its review and
amend the Rule at issue. Despite HHS’s better efforts, the rule remains on the books. 45 C.F.R.
§ 92 (2016). Accordingly, the Court finds that principles of equity and judicial economy favor
ruling on the pending motions, allowing the other parties in this case to conclude two years of
litigation on these issues.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 24(a) permits a party to seek intervention as of right, while

Rule 24(b) allows a party to seek permissive intervention. FED. R. CIV. P. 24. “Although the
movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed.”
Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 565 (5th Cir. 2016)
(citation omitted). “Federal courts should allow intervention when no one would be hurt and the
greater justice could be attained.” Id. (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.
1994)) (internal quotation marks omitted).
A.

Intervention as of Right

Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that:
[o]n timely motion, the court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction that is the subject of the action, and
is so situated that disposing of the action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless existing parties adequately
represent that interest.
A proposed intervenor is entitled to intervene if all the following elements are satisfied:
(1) the application for intervention must be timely; (2) the applicant must have an
interest relating to the property or transaction which is the subject of the action;
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(3) the applicant must be so situated that the disposition of the action may, as a
practical matter, impair or impede his ability to protect that interest; and (4) the
applicant's interest must be inadequately represented by the existing parties to the
suit.
Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting New Orleans Pub. Serv., Inc.
v. United Gas Pipe Line Co. (NOPSI), 732 F.2d 452, 463 (5th Cir. 1984) (en banc)). “Failure to
satisfy one requirement precludes intervention of right.” Haspel & Davis Milling & Planting Co.
Ltd. v. Bd. of Levee Comm’rs of the Orleans Levee Dist., 493 F.3d 570, 578 (5th Cir. 2007); see
also Espy, 18 F.3d at 1205.
B.

Permissive Intervention

Federal Rule of Civil Procedure 24(b)(1) provides that “[o]n timely motion, the court may
permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute;
or (B) has a claim or defense that shares with the main action a common question of law or fact.”
FED. R. CIV. P. 24(b)(1). “In exercising its discretion, the court must consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED.
R. CIV. P. 24(b)(3). Permissive intervention under Rule 24(b) “is wholly discretionary with the
[district] court . . . even though there is a common question of law or fact, or the requirements of
Rule 24(b) are otherwise satisfied.” Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285,
1289 (5th Cir. 1987). Intervention is appropriate when: “(1) timely application is made by the
intervenor, (2) the intervenor’s claim or defense and the main action have a question of law or fact
in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights
of the original parties.” Frazier v. Wireline Sols., LLC, No. C-10-3, 2010 WL 2352058, at *4 (S.D.
Tex. June 10, 2010) (citation omitted); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 229
F.R.D. 126, 131 (S.D. Tex. 2005).

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C.

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Summary Judgment

Summary judgment is proper when the pleadings and evidence show “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant makes
a showing that there is no genuine issue of material fact by informing the court of the basis of its
motion and by identifying the portions of the record that reveal there are no genuine material-fact
issues. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When reviewing the evidence on a motion for summary judgment, the court must resolve
all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v.
Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility
determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255.
And if there appears to be some support for the disputed allegations, such that “reasonable minds
could differ as to the import of the evidence,” the court must deny the motion for summary
judgment. Id. at 250.
D.

Vacatur

When reviewing an agency action, “the reviewing court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and determine the meaning or applicability
of the terms of an agency action.” 5 U.S.C. § 706. Further, the court “shall . . . hold unlawful and
set aside agency action, findings, and conclusions found to be—arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. at § 706(2)(A). Because Congress
“provided vacatur as a standard remedy for APA violations,” courts typically “invalidate—without

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qualification—unlawful administrative rules as a matter of course, leaving their predecessors in
place until the agencies can take further action.” Pennsylvania v. President United States, 930 F.3d
543, 575 (3d Cir. 2019).
III.

ANALYSIS
A.

Intervention

In its Order staying proceedings and remanding to HHS for reconsideration of the Rule,
the Court stated that it would “rule on the motion for permissive intervention, as necessary, after
the stay is lifted and before consideration of Plaintiffs’ motion for summary judgment.” Order 9
n.9, ECF No. 105. The Court also stated that, upon lifting the stay, it would “allow the parties an
opportunity to brief the issue” of whether the Court correctly found that “Putative Intervenors have
a legally protectable interest in the proceedings as the intended beneficiaries of the Rule.” Id. at 3
n.5 (internal citation omitted). Furthermore, Defendants recently declined to defend the Rule,
which forces the Court to also reconsider the forth prong of intervention as of right: whether
Putative Intervenors’ interest is inadequately represented by the existing parties. See Defs.’ Resp.
1–2, ECF No. 154. Accordingly, the Court now considers whether Putative Intervenors may
intervene under Rule 24(a) or (b).
1.

Intervention as of Right

Unlike in their original motion to intervene, Putative Intervenors no longer ask to intervene
permissively. Compare Putative Intervenors’ Br. Supp. Mot. Int. 23–24, ECF No. 8, with Putative
Intervenors’ Br. Supp. Mot. Int. 7–11, ECF No. 130. Instead, they ask the Court to “reconsider its
earlier denial of intervention as of right and grant [Putative] Intervenors’ renewed request to
intervene in light of the government’s subsequent actions.” Putative Intervenors’ Br. Supp. Mot.
Int. 8, ECF No. 130. Thus, the Court first addresses whether Putative Intervenors are entitled to

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intervene as of right under Rule 24(a). FED. R. CIV. P. 24. To intervene as of right, Putative
Intervenors must show: (1) their intervention application is timely; (2) they have an interest
relating to the property or transaction that is the subject of the action; (3) they are situated so that
disposition may, as a practical matter, impair or impede their ability to protect that interest; and
(4) their interest is inadequately represented by the existing parties. Haspel & Davis, 493 F.3d at
578. “Failure to satisfy any one requirement precludes intervention of right.” Id. The Court finds
that Putative Intervenors now satisfy each of the four prongs and are entitled to intervene.
a.

Inadequate Representation

The Court previously denied Putative Intervenors’ request based on the fourth prong. See
Order 7, ECF No. 69. Though the Court found that (1) the intervention application was timely,
(2) Putative Intervenors had a legally protectable interest in the proceedings, and (3) the disposition
of this action would impair their ability to protect members’ interests if not allowed to intervene,
there was no indication that Defendants would (4) inadequately represent Putative Intervenors’
interest. Id. at 5–7. Indeed, the Court noted that “Putative Intervenors share[d] the same ultimate
objective as Defendants—namely, a finding that the Rule is lawful.” Id. at 7. Defendants had
“demonstrated no adversity of interest, collusion, or nonfeasance.” Id. And “[u]p to th[at] point,
Defendants ha[d] taken no action out of step with their original position . . . that the Rule is lawful.”
Id. Thus, the Court denied the motion, stating, “Putative Intervenors may not presently intervene
as of right.” Id.
Two years later, Defendants have taken actions out of step with their original position,
demonstrating they will not adequately represent Putative Intervenors’ interests. Defendants now
“agree with Plaintiffs and the Court that the Rule’s prohibitions on discrimination on the basis of
gender identity and termination of pregnancy conflict with Section 1557 and thus are substantively

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unlawful under the APA.” Defs.’ Resp. 1, ECF No. 154. In fact, Defendants argue that Plaintiffs
“are entitled to summary judgment on their APA claim,” but urge the Court not to resolve any
other claim. Id. And importantly, Defendants “do not oppose the [Putative] Intervenors’ renewed
Motion to Intervene.” Defs.’ Resp. 1, ECF No. 141. Under the reasoning of the Court’s January
24, 2017 Order, Defendants’ actions now clearly allow Putative Intervenors to satisfy the forth
prong and presumably entitle Putative Intervenors to intervene as of right.
b.

Legally Protectable Interest

Inadequate representation aside, Plaintiffs still contend that Putative Intervenors are not
entitled to intervene as of right. Specifically, Plaintiffs argue that Putative Intervenors do not have
the “legally protectable interest” needed to satisfy the second and third prongs. Pls.’ Resp. 5, ECF
No. 140.2 What the Court stated in its January 2017 order, it now reiterates in response: “Putative
Intervenors have a legally protectable interest in the proceedings and . . . disposition in this action
will impair their ability to protect members’ interests if not allowed to intervene, as several of their
members wish to avail themselves of rights provided under the Rule.” Order 5–6, ECF No. 69.
Plaintiffs provide two reasons why the Court should reconsider this conclusion. First, they
claim that the evidence included in Putative Intervenors’ motion to intervene “lacks a proper
evidentiary foundation, is speculative, and is based on inadmissible hearsay.” Pls.’ Resp. 6, ECF
No. 140. Second, Plaintiffs argue that “even if the Court considers the evidence, it shows that
intervenors lack a legally protectable interest in the legality and constitutionality of the Rule and
are attempting to assert the rights of others.” Id. Rather than asserting a “direct, substantial, legally
protectable interest,” id. at 5 (quoting Edwards v. City of Houston, 78 F.3d 983, 1004 (5th Cir.

Plaintiffs concede that Putative Intervenors’ motion was timely. Pls.’ Br. Opp’n Mot. Int. 5, ECF No. 140
(“While their motion was timely, Order 3, ECF No. 20, they lack a legally protectable interest that may be
impaired by an adverse ruling, and it remains unclear whether their interests are inadequately represented
by the federal defendants.”).
2

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1996)), Plaintiffs allege that Putative Intervenors “assert only ‘ideological, economic, or
precedential’ interests that are insufficient for intervention.” Id. at 9 (quoting Texas, 805 F.3d at
657–58). The Court addresses each contention in turn.
First, the facts asserted in Putative Intervenors’ declarations are admissible at the
intervention stage. As Putative Intervenors correctly note, “the Federal Rules of Evidence do not
apply to motions to intervene.” Putative Intervenors’ Reply 1, ECF No. 144. Rather, motions to
intervene are judged under the liberal pleading standard, and all “allegations are accepted as true.”
Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 56 n.2 (5th Cir. 1977); see also 7C Charles
Alan Wright, et al., Federal Practice & Procedure § 1914 (3d ed. 2007) (“The general rules on
testing a pleading are applicable here. The pleading is construed liberally in favor of the pleaderintervenor and the court will accept as true the well-pleaded allegations in the pleading.”). Though
the case itself has progressed well beyond the pleading stage, Putative Intervenors have been stuck
in a three-year limbo—participating in real time as amici, but all the while awaiting resolution of
their motions to intervene. Accordingly, the Court must analytically return to the pleading stage,
considering the facts alleged in Putative Intervenors’ renewed motion to intervene as if they were
included in the original parties’ pleadings.
Putative Intervenors’ motion to intervene includes declarations from leaders of each
organization. See App. Supp. Putative Intervenors’ Mot. Int., ECF No. 131. The deputy director
of the ACLU of Texas claims to have members seeking transition surgeries and abortions, and she
refers to one unnamed member seeking each procedure. Id. at 2. Likewise, the president of the
River City Gender Alliance claims to have members also seeking transition services, and she too
refers to one unnamed individual. Id. at 5. Because these statements come from leadership rather
than the organizations’ allegedly harmed members, Plaintiffs assert that the statements are

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inadmissible hearsay. Pls.’ Resp. 6, ECF No. 140. But at the pleading stage, this is not true. See
7C Charles Alan Wright, et al., Federal Practice & Procedure § 1914 (3d ed. 2007). The Court
finds that Putative Intervenors’ declarations plead sufficient facts to establish that “the disposition
of the action ‘may’ impair or impede their ability to protect their interests,” to the extent necessary
at the motion-to-intervene stage. Brumfield v. Dodd, 749 F.3d 339, 344 (5th Cir. 2014).
When taking these declarations as true, the Court finds that Putative Intervenors’ have
shown a “direct, substantial, legally protectable interest” in the outcome of the case, as they have
alleged specific harm to particular members. Edwards, 78 F.3d at 1004. Plaintiffs argue that this
cannot be true because “[t]he Rule does not regulate the conduct of the ACLU of Texas or the
River City Gender Alliance.” Pls.’ Resp. 8, ECF No. 140. Plaintiffs point the Court to NOPSI, 732
F.2d 452, and Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007), both
of which the Court finds distinguishable.
In NOPSI, the Fifth Circuit held that “an economic interest alone is insufficient, as a legally
protectable interest is required for intervention under Rule 24(a)(2).” 732 F.2d at 466. Here,
Putative Intervenors do not allege an economic interest at all, much less a solely economic interest.
Rather, they claim to have an interest “as the intended beneficiary of a government regulatory
system.” Putative Intervenors’ Br. Supp. Mot. Int. 10, ECF No. 130 (quoting Wal-Mart Stores, 834
F.3d at 569). They assert that, if HHS is prevented from enforcing the Rule, Putative Intervenors’
members will be denied access to healthcare. Id. at 5.
Factually, Northland Family Planning Clinic is more similar. There, STOPP, a publicinterest group “created and continu[ing] to exist only for the purposes of advocating the passage
and continued viability” of Michigan’s Legal Birth Definition Act, sought to intervene to defend
the Act. Northland Family Planning Clinic, 487 F.3d at 344. The Sixth Circuit upheld the district

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court’s denial of intervention because “the organization had ‘only an ideological interest in the
litigation, and the lawsuit d[id] not involve the regulation of [the organization’s] conduct in any
respect.’” Texas, 805 F.3d at 658 (quoting Northland Family Planning Clinic, 487 F.3d at 343).
Appearing on behalf of their organizational entities, Putative Intervenors would also have only an
ideological interest. But unlike STOPP, they “do not seek to intervene in their capacity as advocacy
groups.” Putative Intervenors’ Br. Supp. Mot. Int. 11, ECF No. 130 (internal citation omitted).
Instead, “they seek to intervene based on their associational standing to assert the ‘concrete,
particularized, and legally protectable’ interests of their individual members.” Id. (citing Texas,
805 F.3d at 657–58). Since the Court must take the facts alleged in Putative Intervenors’
declarations as true, it finds that Putative Intervenors have pleaded sufficient facts to demonstrate
a “legally protectable interest” such that they are entitled to intervene as of right.
However, this is not to say that Putative Intervenors have pleaded sufficient facts to prove
standing to assert claims on behalf of their members. Indeed, should Putative Intervenors seek to
appeal, they will need to show more than just a sufficiently pleaded legally protectable interest in
the case; they will need to prove they have Article III standing. See Va. House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (“As the Court has repeatedly recognized, to appeal a
decision that the primary party does not challenge, an intervenor must independently demonstrate
standing.”); Diamond v. Charles, 476 U.S. 54, 68 (1986) (“Diamond’s status as an intervenor
below, whether permissive or as of right, does not confer standing sufficient to keep the case alive
in the absence of the State on this appeal.”). Putative Intervenors already claim to satisfy this
requirement under the theory of associational standing. Putative Intervenors’ Br. Supp. Mot. Int.
14, ECF No. 130. In order to demonstrate associational standing, Putative Intervenors must prove
three elements: “(1) the association[s’] members would independently meet the Article III standing

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requirements; (2) the interests the association[s] seek[] to protect are germane to the purpose of
the organization[s]; and (3) neither the claim asserted nor the relief requested requires participation
of individual members.” Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency, 937 F.3d 533,
536 (5th Cir. 2019) (internal citation omitted). But because they do not “seek relief” at this stage
of the litigation, the Court need not address whether they have associational standing.3

Following the Supreme Court’s opinion in Town of Chester v. Laroe County Estates, Inc., 137 S. Ct. 1645
(2017), the Court noted in its July 10, 2017 Order that, once the stay was lifted, it would consider Town of
Chester’s application to this case. See Order 3 n.5, ECF No. 105. On August 7, 2019, Court ordered briefing,
and on September 16, 2019, it held a hearing. Order, ECF No. 164; Order, ECF No. 168. Specifically, the
Court asked the parties to address whether Putative Intervenors, as defendant-intervenors, were
“pursu[ing]” or “seeking relief” such that they must demonstrate standing. Order 2, ECF No. 164; Hr’g Tr.
The Court now concludes that Putative Intervenors do not seek relief and need not demonstrate standing at
this stage of the litigation.
3

In Town of Chester, the Supreme Court stated, “[f]or all relief sought, there must be a litigant with standing,
whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right.” 137 S. Ct. at
1651. Addressing the plaintiff-intervenor’s claim that it was entitled to intervene irrespective of its standing,
the Supreme Court held that “an intervenor of right must have Article III standing in order to pursue relief
that is different from that which is sought by a party with standing.” Id. Though the Supreme Court
purported to resolve a circuit split involving both intervenor-plaintiffs, see, e.g., City of Chicago v. Fed.
Emergency Mgmt. Agency, 660 F.3d 980 (7th Cir. 2011), and intervenor-defendants, see, e.g., King v.
Governor of the State of New Jersey, 767 F.3d 216 (3d Cir. 2014), it appears that the holding applies only
to intervenor-plaintiffs. See Town of Chester, 137 S. Ct. at 1650 (“[a]cknowledging a division among the
Courts of Appeals on whether an intervenor of right must meet the requirements of Article III”). In DeOtte
v. Azar, the Court concluded the opposite: that any intervenor, regardless of the side it intends to join, must
establish standing if no existing party seeks the same relief. See No. 4:18-cv-00825-O, 2019 WL 3796432,
at *2 (N.D. Tex. July 29, 2019) (denying the State of Nevada’s motion to intervene as of right after finding
that it did not have standing). After further briefing and oral arguments in this case—neither of which
occurred in DeOtte—the Court has determined that defendant-intervenors need not establish standing
because they generally do not “pursue relief” within the meaning of Town of Chester. 137 S. Ct. at 1651.
However, this Court agrees with the parties and with other courts that have found that the opinion applies
in both the intervention-as-of-right and permissive-intervention contexts. See Pls.’ Suppl. Br. Resp. Ct.’s
Order 2, ECF No. 165; Defs.’ Resp. Order Ct. 1, ECF No. 166; Putative Intervenors’ Suppl. Br. Supp. Mot.
Int. 1, ECF No. 167; United States v. Bayer Cropscience LP, No. 15-13331, 2018 WL 3553413 (S.D. W.
Va. July 24, 2018); Seneca Res. Corp. v. Highland Twp., No. 16-289, 2017 WL 4171703 (W.D. Pa. Sept.
20, 2017); but see Vazzo v. City of Tampa, No. 17-2896, 2018 WL 1629216 (M.D. Fla. Mar. 15, 2018).
For three reasons, this Court now concludes that Putative Intervenors, as defendant-intervenors, do not
“seek relief” and therefore do not need to demonstrate standing in this case. First, the term “relief” is linked
to affirmative claims, not defenses. Black’s Law Dictionary defines relief as “redress or benefit . . . that a
party asks of the court” and synonymizes it to a “remedy.” Relief, BLACK’S LAW DICTIONARY 606 (3d
Pocket ed. 1996). One type of relief is “affirmative relief,” which is defined as “the relief sought by a
defendant by raising a counterclaim or cross-claim that could have been maintained independently of the
plaintiff’s action.” Id. Here, Plaintiffs ask the Court to issue declaratory judgments that declare the Rule
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Putative Intervenors have shown that (1) their intervention application is timely; (2) they
have an interest relating to the property or transaction that is the subject of the action; (3) they are
situated so that disposition may, as a practical matter, impair or impede their ability to protect that
interest; and (4) their interest is inadequately represented by the existing parties. Haspel & Davis,
493 F.3d at 578. Accordingly, the Court GRANTS their motion to intervene as of right.

invalid and to permanently enjoin Defendants from enforcing the Rule. State Pls.’ Mot. Summ. J. 2, ECF
No. 132; Private Pls.’ Mot. Partial Summ. J. 2, ECF No. 135. This is a form of redress or remedy. Putative
Intervenors, on the other hand, do not ask the Court to do anything; they do not raise a counterclaim, crossclaim, or any other claim for relief. Rather, they state that their “objective [is] defending the lawfulness of
the regulation.” Putative Intervenors’ Br. Supp. Mot. Int. 1–2, ECF No. 130. The Federal Rules of Civil
Procedure’s differentiation between “claim[s] for relief” and “defenses” further enforces this distinction.
FED. R. CIV. P. 8. In this case, all claims for relief have been pleaded by Plaintiffs, leaving Defendants—
or, instead, Putative Intervenors—to defend the Rule against those claims.
Second, plaintiffs, not defendants, generally must demonstrate standing. “The law of Article III standing,
which is built on separation-of-powers principles, serves to prevent the judicial process from being used to
usurp the powers of the political branches.” Town of Chester, 137 S. Ct. at 1650 (quoting Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408 (2013)). Accordingly, plaintiffs must “alleg[e] such a personal stake
in the outcome of the controversy as to . . . justify [the] exercise of the court’s remedial powers on [their]
behalf.” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)); see also Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (“The plaintiff, as the party invoking federal jurisdiction, bears the
burden of establishing these elements.”). Town of Chester does not seem to depart from this longstanding
principle. See 137 S. Ct. at 1651 (“At least one plaintiff must have standing to seek each form of relief
requested in the complaint.”).
Finally, Town of Chester can be read in conjunction with Fifth Circuit precedent. “[F]or a Supreme Court
decision to change our Circuit’s law, it ‘must be more than merely illuminating with respect to the case
before [the court]’ and must ‘unequivocally’ overrule prior precedent.” Tech. Automation Servs. Corp. v.
Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) (citing Martin v. Medtronic, Inc., 254 F.3d
573, 577 (5th Cir. 2001)). Here, the Supreme Court opinion does not seem to “explicitly or implicitly
overrul[e]” the Fifth Circuit’s seminal case. United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999). In
Ruiz v. Estelle, the Fifth Circuit joined the pre-Town of Chester circuit split by concluding the intervenors
need not establish standing. Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998). Undoubtedly, Town of Chester
abrogated Ruiz in part, insofar as it clarified that plaintiff-intervenors must establish standing in order to
intervene as of right when seeking different relief than the existing parties. See Town of Chester, 137 S. Ct
at 1651. But the opinion keeps intact the Fifth Circuit’s pronouncement that “Article III does not require
intervenors to independently possess standing where the intervention is into a subsisting and continuing
Article III case or controversy and the ultimate relief sought by the intervenors is also being sought by at
least one subsisting party with standing to do so.” Ruiz, 161 F.3d at 380 (emphasis added). Accordingly, if
Putative Intervenors sought relief that was not being sought by another party with standing, they would be
required to demonstrate their own standing. But because Plaintiffs retain standing to bring their claims for
injunctive relief, there is still a “subsisting and continuing Article III case or controversy.” Id. Putative
Intervenors may join in defense. And as long as they do not also intend to add an affirmative claim for relief
during the district court proceedings, Putative Intervenors need not establish standing to intervene.
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2.

Page 14 of 25 PageID 4748

Permissive Intervention

Even if Putative Intervenors could not establish that they are entitled to intervene as of
right, the Court would allow them to intervene permissively under Rule 24(b). FED. R. CIV. P.
24(b). “[T]he court may permit anyone to intervene who: (A) is given a conditional right to
intervene by a federal statute; or (B) has a claim or defense that shares with the main action a
common question of law or fact.” FED. R. CIV. P. 24(b)(1). This decision is “wholly discretionary
with the court,” Kneeland, 806 F.2d at 1289, but “the court must consider whether the intervention
will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P.
24(b)(3).
Here, Putative Intervenors have a “defense that shares with the main action a common
question of law or fact.” FED. R. CIV. P. 24(b)(1). Indeed, Putative Intervenors’ defense is directly
related to the underlying controversy, especially at the current summary-judgment stage, where
Putative Intervenors respond directly to Plaintiffs’ arguments. See generally Putative Intervenors’
Br. Opp’n Mots. Summ. J., ECF No. 155. Further, as discussed above, Putative Intervenors’
interest is no longer “adequately represented by other parties.” NOPSI, 732 F.2d at 472. And now
that Defendants do not defend the Rule, Putative Intervenors’ arguments will “significantly
contribute” to the development of the issues. Id.
Moreover, the parties agree to Putative Intervenors’ permissive intervention. Defendants
“do not oppose [Putative] Intervenors’ renewed Motion to Intervene.” Defs.’ Resp. 1, ECF No.
141. And though Plaintiffs do not “conced[e] their satisfaction of the requirements for permissive
intervention,” they are “willing . . . to consent to permissive intervention provided that the Court
prevents [P]utative [I]ntervenors from conducting discovery, moving to stay the litigation or the
preliminary injunction, and disrupting the dispositive motion schedule.” Pls.’ Resp. 1, 5, ECF No.

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140. Essentially, no party objects to Putative Intervenors’ involvement; Plaintiffs just ask that the
intervention not bring the case back to square one. This request aligns with Rule 24’s guidelines.
When determining whether to permit a prospective party to intervene, the Court is required to
“consider whether the intervention will unduly delay or prejudice the adjudication of the original
parties’ rights.” FED. R. CIV. P. 24(b)(3). If it determines that intervention would cause such undue
delay or prejudice, “a federal district court is able to impose almost any condition, including the
limitation of discovery.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 469
(4th Cir. 1992); see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 378 (1987)
(“refus[ing] to find that the grant of permissive intervention, even though subject to conditions,
should be treated as a complete denial of the right to participate” when the intervenor could still
raise its claims on post-judgment appeal). But importantly, a court may also place reasonable
conditions on intervenors as of right. See Beauregard v. Sword Servs., LLC, 107 F.3d 351, 352–
53 (5th Cir. 1997).
3.

Limitations on Intervention

Though the Court finds that Putative Intervenors are entitled to intervene as of right, it finds
that reasonable limitations are necessary to avoid a further delay in litigation. See id. (“[I]t is now
a firmly established principle that reasonable conditions may be imposed even upon one who
intervenes as of right.”); FED. R. CIV. P. 24(a) advisory committee’s note to 1966 amendment (“An
intervention of right under the amended rule may be subject to appropriate conditions or
restrictions responsive among other things to the requirements of efficient conduct of the
proceedings.”). Here, Plaintiffs and Putative Intervenors agree that the issues in this case are
primarily legal. See Pls.’ Resp. 12, ECF No. 140; Putative Intervenors’ Br. Supp. Mot. Int. 3, ECF
No. 130. Accordingly, there is no need for factual discovery. Furthermore, because Putative

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Intervenors have been allowed to participate in nearly every stage of the litigation, including in the
current summary-judgment stage, there is no need for further briefing. See, e.g., Putative
Intervenors’ Answer, ECF No. 10; Putative Intervenors’ Mot. Stay, ECF No. 27; Putative
Intervenors’ Mot. Expedited Recons., ECF No. 38; Putative Intervenors’ Br. Opp’n Mots. Summ.
J, ECF No. 53; Putative Intervenors’ Mot. Ruling Int. & Stay, ECF No. 63; Notice of Appeal, ECF
No. 72; Putative Intervenors’ Mot. Stay, ECF No. 85; Putative Intervenors’ Resp. Pls.’ Mot. Status
Conference, ECF No. 122; Putative Intervenors’ Mot. Int., ECF No. 129; Putative Intervenors’
Opp’n Mots. Summ. J., ECF No. 155; Putative Intervenors’ Suppl. Br. Supp. Mot. Int., ECF No.
167. As a result, the Court is ready to rule on Plaintiffs’ motions for summary judgment.
B.

Summary Judgment

Plaintiffs ask the Court to vacate the Rule and convert its previously entered preliminary
injunction to a permanent injunction. State Pls.’ Br. Supp. Mot. Summ. J. 37, ECF No. 133; Private
Pls.’ Br. Supp. Mot. Summ. J. 50, ECF No. 136. Given how little the parties’ legal claims have
changed, the Court is inclined to do so. But Plaintiffs must show they are entitled to judgment as
a matter of law, and the Court must assess whether Putative Intervenors’ arguments compel
reconsideration of its original analysis and determine the appropriate remedy for this stage of the
litigation.
1.

Merits

Individual Plaintiffs argue they are entitled to judgment as a matter of law on their (1) APA
claim; (2) RFRA claim; and (3) Free Exercise claim. See Private Pls.’ Br. Supp. Mot. Summ. J.,
ECF No. 136. State Plaintiffs argue they are entitled to judgment as a matter of law on their APA
claim or, alternatively, their stand-alone constitutional claims. See State Pls.’ Br. Supp. Mot.
Summ. J., ECF No. 133. Defendants concede these points but ask the Court to go no further than

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ruling on Plaintiffs’ APA claim.4 See Defs.’ Resp., ECF No. 154. Putative Intervenors—now
defending the Rule as parties to the case—argue that Plaintiffs have not proved an injury in fact
and therefore cannot succeed on their claims.5 Putative Intervenors’ Br. Opp’n Mots. Summ. J. 1–
3, ECF No. 155.
When the Court granted the preliminary injunction, it found that Plaintiffs (1) proved that
the Rule violates the APA and (2) demonstrated that the Rule likely violates RFRA. Order 2, ECF
No. 62. The Court finds no reason to depart from its analysis on the APA claim. See id. at 27–38
(holding that the Rule is “contrary to law” under the APA due to its conflict with Title IX, its
incorporated statute). But because it previously only concluded that Private Plaintiffs’
demonstrated a “substantial likelihood of success on their [RFRA] claims,” the Court must now
address whether Plaintiffs have proved that the Rule, as applied to them, also violates RFRA.6 Id.
at 42.
4

No matter Defendants’ position, whether Plaintiffs are entitled to the judgment they seek is a decision that
rests with the Court. “A motion for summary judgment cannot be granted simply because there is no
opposition,” but “a court may grant an unopposed summary judgment motion if the undisputed facts show
that the movant is entitled to judgment as a matter of law.” Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d
435, 435 (5th Cir. 2014) (unpublished) (quoting Hibernia Nat. Bank v. Administracion Cent. S.A., 776 F.2d
1277, 1279 (5th Cir. 1985)).
Putative Intervenors’ arguments defending the Rule and opposing Plaintiffs’ request for a permanent
injunction are largely consistent with arguments Defendants originally raised when defending the rule and
opposing the request for preliminary injunction. Compare Defs.’ Response, ECF No. 50, with Putative
Intervenors’ Opp’n Mots. Summ. J., ECF No. 155. The Court has already addressed most of these
arguments. See Order, ECF No. 62. To the extent that the Court has not addressed Putative Intervenors’
arguments, the issues are not pertinent to the Court’s conclusion. See, e.g., Putative Intervenors’ Opp’n
Mots. Summ. J. 27–32, 35–37, ECF No. 155 (arguing that the Rule does not violate state sovereignty or the
Free Exercise Clause).
5

Putative Intervenors assert that the Court must review the administrative record to adjudicate Plaintiffs’
claims. Putative Intervenors’ Opp’n Mots. Summ. J. 4, 33–34, ECF No. 155. The Court disagrees. The
Court need not consider the record on the APA claim because it requires a purely legal statutoryinterpretation analysis. As State Plaintiffs correctly note, “[s]ex discrimination in section 1557 either
includes gender identity and termination of pregnancy as a matter of law, or it does not.” State Pls.’ Reply
8, ECF No. 157. Further, the Court need not consider the record on the RFRA claim because the APA’s
“record rule does not apply to RFRA claims.” N. Arapaho Tribe v. Ashe, 925 F. Supp. 2d 1206, 1211 (D.
Wyo. 2012); see also O Centro Espirita Beneficiente Uniao do Vegetal v. Duke, 286 F. Supp. 3d 1239,
6

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Congress—noting that “the framers of the Constitution, recognizing free exercise of
religion as an unalienable right, secured its protection in the First Amendment to the Constitution”
and that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended
to interfere with religious exercise,” 42 U.S.C. § 2000bb(a)(1), (2)—enacted RFRA “to provide a
claim or defense to persons whose religious exercise is substantially burdened by government.” 42
U.S.C. § 2000bb(b)(2). RFRA reinstated “the compelling interest test as set forth in Sherbert v.
Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972),” which Congress
deemed “a workable test for striking sensible balances between religious liberty and competing
prior governmental interests.” 42 U.S.C. § 2000bb(a)(5), (b)(1). When applying RFRA’s test to a
federal agency rule, a court must first determine whether the rule “imposes a substantial burden on
the exercise of religion.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014). If so, the
court applies the two-prong compelling interest test. It asks whether the government “has shown
that the [rule] both ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.’” Id. (quoting 42 U.S.C.
§ 2000bb–1(b)). “RFRA thus applies strict scrutiny to government regulations that substantially
burden a person’s religious exercise.” Tagore v. United States, 735 F.3d 324, 330 (5th Cir. 2013).
Importantly, “a ‘categorical approach’” to RFRA’s strict-scrutiny analysis “is insufficient.” Id. at
331 (citing Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 430–37
(2006)). Instead, the government must analyze RFRA claims on a case-by-case basis and must
“explain how applying the statutory burden ‘to the person’ whose sincere exercise of religion is

1260–62 (D.N.M. 2017) (distinguishing APA claims and RFRA claims, and concluding that “the APA’s
procedural requirements, including the record rule, do not apply” to RFRA claims); S. Fork Band Council
of W. Shoshone of Nev. v. U.S. Dep’t of Interior, No. 3:08-cv-616-LRH-RAM, 2009 WL 73257, at *1–3
(D. Nev. Jan. 7, 2009) (concluding that “limiting [the court’s] review of the RFRA claim to the
administrative record [wa]s inappropriate”).
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being seriously impaired furthers the compelling governmental interest.” Tagore, 735 F.3d at 330–
31 (citing Gonzales, 546 U.S. at 430–31).
In its December 31, 2016 Order, the Court concluded that “the Rule imposes a substantial
burden on Private Plaintiffs’ religious exercise.” Order 40, ECF No. 62. After explaining that “the
Court is careful not to weigh or evaluate the relevant doctrines of faith,” the Court concluded that
“Private Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere
religious exercise.” Id. at 39. Because the Rule “[1] places substantial pressure on Plaintiffs to
perform and cover transition and abortion procedures . . . [2] forces Plaintiffs to provide the federal
government a nondiscriminatory and ‘exceedingly persuasive justification’ for their refusal to
perform or cover such procedures [and] . . . [3] requires them to remove the categorical exclusion
of transitions and abortions,” the Rule substantially burdens Private Plaintiffs’ religious exercise
by making the practice of religion more expensive in the business context. Id. at 39–40 (citing
Hobby Lobby, 573 U.S. at 710).
Accordingly, the Court applied strict scrutiny based on Defendants’ briefing. Id. at 40–42.
First, the Court noted that “Defendants d[id] not provide a compelling interest in their briefing and
Private Plaintiffs dispute[d] that one exists.” Id. at 40; see also id. at 38 (“Defendants did not
address Plaintiffs’ RFRA claim in their briefing but asserted at the hearing that more factual
development was necessary to evaluate the claim.”). Nevertheless, the Court stated that, even if
Defendants had a compelling interest, they “failed to prove the Rule employs the least restrictive
means.” Id. at 41. The Court provided examples of other less restrictive means the government
could use to ensure access to transition procedures and abortions, including assisting individuals
seeking such procedures by finding healthcare providers who offer those services and then

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assuming the cost. Id. at 41–42. Accordingly, the Court determined that Private Plaintiffs
successfully demonstrated a substantial likelihood of success on their RFRA claim. Id.
Once again, Defendants have failed to address Private Plaintiffs’ RFRA claim. See
generally Defs.’ Resp., ECF No. 154. However, Putative Intervenors urge the Court to find for
Defendants a compelling interest in the preamble to the Rule, which states, “the government has a
compelling interest in ensuring that individuals have nondiscriminatory access to health care and
health coverage.” Putative Intervenors’ Resp. 33, ECF No. 155 (citing 81 Fed. Reg. at 31380).
Putative Intervenors also reject Private Plaintiffs’ and the Court’s previously stated alternative
means to achieve this interest. Id. at 34 n.7. However, RFRA’s text and this Court’s binding
precedent make clear that Putative Intervenors cannot carry Defendants’ burden; the
“[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that
application of the burden to the person” satisfies strict scrutiny. 42 U.S.C. § 2000bb–1(b)
(emphasis added); see also Hobby Lobby, 573 U.S. at 721 (refusing to consider RFRA arguments
raised by parties other than the government).
Regardless, the Court considered and rejected these arguments in its December 31, 2016
Order. See Order 40–41, ECF No. 62. And the Court’s analysis—like Private Plaintiffs’ claims
and Defendants’ lack of response—has not changed. Though the preamble’s broadly stated
purpose, implemented through universal application of the Rule, could arguably satisfy a
categorical application of strict scrutiny, it cannot satisfy RFRA’s “more focused” inquiry.
Gonzales, 546 U.S. at 430. Defendants, the only parties fit to carry the government’s burden, have
twice failed to demonstrate that applying the Rule to Private Plaintiffs, “the particular claimant[s]
whose sincere exercise of religion is being substantially burdened,” would achieve a compelling
governmental interest through the least restrictive means. Id. at 430–31. Indeed, though the Rule

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states that any “explicit, categorical (or automatic) exclusion or limitation of coverage” for these
procedures is “unlawful on its face,” 81 Fed. Reg. at 31429, Defendants have asserted no “harm
[in] granting specific exemptions” to Private Plaintiffs. Hobby Lobby, 573 U.S. at 726–27
(emphasis added). Accordingly, the Court holds that the Rule, which expressly prohibits religious
exemptions, substantially burdens Private Plaintiffs’ religious exercise in violation of RFRA.
Settling this dispute requires resolving questions of law. Plaintiffs have already presented
their legal arguments to the Court and, notably, explained why they were entitled to not only a
preliminary injunction but also judgment as a matter of law. See Private Pls.’ Reply, ECF No. 158.
Now, they support those arguments with more evidence. See App. Supp. State Pls.’ Mot. Summ.
J., ECF No. 134; App. Supp. Private Pls.’ Mot. Summ. J., ECF No. 137. Defendants do not object
to the relevant facts, arguments, or evidence. See Defs.’ Response, ECF No. 154. And though
Putative Intervenors’ do object, their arguments are largely duplicative of those the Court has
already addressed. Compare Order, ECF No. 62, with Putative Intervenors’ Opp’n Mots. Summ.
J., ECF No. 155. Accordingly, the Court finds that Plaintiffs’ motions for partial summary
judgment should be and are hereby GRANTED in part.
2.

Relief

Plaintiffs request two forms of relief: (1) vacatur of the Rule and (2) a permanent injunction
enjoining Defendants from applying the Rule nationwide. See State Pls.’ Br. Supp. Mot. Summ. J.
37, ECF No. 133; Private Pls.’ Br. Supp. Mot. Summ. J. 50, ECF No. 136. Though the Court
maintains that Plaintiffs were entitled to the preliminary injunction granted in its December 31,
2016 Order, it now concludes that the proper remedy at this stage is vacatur of the Rule, not a
permanent injunction.

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Under Section 706 of the APA, 5 U.S.C. § 706, when a reviewing court finds that an agency
rule violates the APA, it “‘shall’—not may—‘hold unlawful and set aside’ [the] agency action.”
Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1022 (5th Cir. 2019) (citing Checkosky v. SEC, 23
F.3d 452, 491 (D.C. Cir. 1994)) [hereinafter Southwestern]. When a court “hold[s] unlawful and
set[s] aside” agency rules that are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 5 U.S.C. § 706(2)(A), “the ordinary result is that the rules are vacated—
not that their application to the individual petitioners is proscribed.” Nat’l Mining Ass’n v. U.S.
Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (citation omitted). The Fifth Circuit
has applied Section 706 and accordingly vacated agency rules both in whole and in part. For
example, where “the comprehensive regulatory package [wa]s plainly not amenable to severance,”
the Fifth Circuit concluded that a Department of Labor rule’s “overreaching definition” and
“conflict[] with the plain text” of ERISA—among other flaws—required vacatur of the rule “in
toto.” Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360, 379, 388 (5th Cir. 2018). In
contrast, the Fifth Circuit vacated and remanded only severable portions of an Environmental
Protection Agency rule enacted through arbitrary and capricious rulemaking. Southwestern, 920
F.3d at 1022.7 Section 706 is not limited to appellate courts; district courts have a duty to vacate
unlawful agency actions as well. See Nio v. United States, 385 F. Supp. 3d 44, 68–69 (D.D.C.
2019) (vacating arbitrary and capricious Department of Defense requirements rather than issuing

“‘[T]he agency action . . . found to be in excess of statutory authority,’ 5 U.S.C. § 706(2)(C), can
encompass only ‘a part of an agency rule.’ And courts may ‘set aside’ only the part of a rule found to be
invalid—for that is the only ‘agency action’ that exceeds statutory authority. It would, therefore, exceed the
statutory scope of review for a court to set aside an entire rule where only a part is invalid, and where the
remaining portion may sensibly be given independent life.” Catholic Soc. Serv. v. Shalala, 12 F.3d 1123,
1128 (D.C. Cir. 1994). As the Court noted in its December 31, 2016 Order, “the Rule includes a severability
provision,” which allowed the Court to enjoin only the challenged provisions. Order 45–46, ECF No. 62
(citing 45 C.F.R. § 92.2(c)). Now, the Court VACATES only the portions of the Rule that are unlawful
under the APA and RFRA.
7

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a permanent injunction, and stating that “[g]enerally, when a court finds that a challenged action
is arbitrary and capricious, the remedy is vacatur”); Am. Stewards of Liberty v. Dep’t of Interior,
370 F. Supp. 3d 711, 728 (W.D. Tex. 2019) (vacating a Department of the Interior conclusion that
did not follow Congress’s set standard, and noting that “courts retain a role, and an important one,
in ensuring that agencies have engaged in reasoned decisionmaking” (quoting Judulang v. Holder,
565 U.S. 42, 53 (2011)); AquAlliance v. U.S. Bureau of Reclamation, 312 F. Supp. 3d 878, 880
(E.D. Cal. 2018) (vacating an agency report that violated the National Environmental Policy Act,
and stating that vacatur is the “presumptive remedy” for unlawful agency action).
Since the Court concludes that “the Rule’s conflict with its incorporated statute—Title
IX—renders it contrary to law under the APA,” the appropriate remedy is vacatur. Order 38, ECF
No. 62. Accordingly, the Court VACATES and REMANDS the unlawful portions of the Rule
for Defendants’ further consideration in light of this opinion and the Court’s December 31, 2016
Order.
Finally, though “[i]t is not beyond the power of a court, in appropriate circumstances, to
issue a nationwide injunction,” these circumstances do not justify such a remedy. Texas, 809 F.3d
at 188. Rather, vacatur redresses both the APA violation and the RFRA violation. The Third Circuit
discussed the distinctions between nationwide injunctions and vacatur in Pennsylvania v.
President United States, 930 F.3d 543. There, the circuit court affirmed a district court’s order
granting a preliminary nationwide injunction against the enforcement of final rules the district
court found likely violated the APA and likely were not authorized by nor required by the ACA or
RFRA. Id. at 556. In upholding the remedy, however, the circuit emphasized that the nationwide
injunction was issued “not to conclusively determine the rights of the parties, but to balance the
equities as the litigation moves forward.” Id. at 575 (quoting Trump v. Int’l Refugee Assistance

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Project, 137 S. Ct. 2080, 2087 (2017)). Indeed, “[w]hile vacatur [wa]s the ultimate remedy the
States s[ought],” the preliminary injunction merely provided temporary relief until the rules’
validity could be “finally adjudicated.” Id. at 575–76. But because “Congress . . . provided vacatur
as a standard remedy for APA violations,” the circuit clarified that courts in similar situations
ultimately “invalidate—without qualification—unlawful administrative rules as a matter of course,
leaving their predecessors in place until the agencies can take further action.” Id. at 575.
The District Court for the District of Columbia encountered the issue this Court now faces:
whether, after vacatur of an unlawful rule, “issuance of an injunction is also warranted.” O.A. v.
Trump, No. 18-2838, 2019 WL 3536334, at *29 (D.D.C. Aug. 2, 2019). The D.C. district court
determined it was not. Id. It first noted that “[t]he Supreme Court has cautioned that a district court
vacating an agency action under the APA should not issue an injunction unless doing so would
‘have [a] meaningful practical effect independent of its vacatur.’ Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 165 (2010).” O.A., 2019 WL 3536334, at *29. It also noted that the
defendants had “represented that they w[ould] abide by th[e c]ourt’s order.” Id. Accordingly, the
court denied the plaintiffs’ request for issuance of an injunction, but it also stated that the plaintiffs
were “free, however, to return to the [c]ourt for further relief if warranted.” Id.
Because the Court finds the circumstances here similar and the D.C. district court’s analysis
persuasive, the Court follows suit—vacating the Rule and inviting Plaintiffs to return if further
relief independent of vacature is later warranted. There is currently no indication that, once the
Rule is vacated, Defendants will defy the Court’s order and attempt to apply the Rule against
Plaintiffs or similarly situated non-parties. Rather, Defendants now “agree with Plaintiffs and the
Court that the Rule’s prohibitions on discrimination on the basis of gender identity and termination
of pregnancy conflict with Section 1557 and thus are substantively unlawful under the APA.”

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Defs.’ Resp. 1, ECF No. 154. Defendants correctly state that they have been “conscientiously
complying with the injunction” and ask the Court to postpone ruling due to their “ongoing efforts
to amend the Rule.” Id. at 2. Considering Defendants’ prior actions and current statements, the
Court concludes that issuance of an injunction would not have a “meaningful practical effect
independent of its vacatur” because vacatur and remand will likely prevent Defendants from
applying the Rule. Monsanto, 561 U.S. at 165. However, should Defendants attempt to apply the
vacated Rule—in violation of the APA, RFRA, and this Court’s Order—Plaintiffs may return to
the Court for redress. As it stands, neither Plaintiffs nor similarly situated non-parties need
injunctive relief from the vacated Rule.
IV.

CONCLUSION
For the foregoing reasons, the Court finds that Putative Intervenors’ Motion to Intervene

(ECF No. 129) should be and is hereby GRANTED. The Court also finds that Plaintiffs’ Motions
for Summary Judgment and Permanent Injunction (ECF Nos. 132, 135) should be and are hereby
GRANTED in part. The Court SEVERS Plaintiffs’ APA and RFRA claims from their Title VII,
Spending Clause, First Amendment, Tenth Amendment, and Eleventh Amendment claims. The
Court ADOPTS its prior reasoning from the preliminary injunction (ECF No. 62) and now
HOLDS that the Rule violates the APA and RFRA. Accordingly, the Court VACATES and
REMANDS the Rule for further consideration.
SO ORDERED on this 15th day of October, 2019.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

25