IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No. __:______-CV-___-__

PHIL BERGER, in his official capacity as President pro tempore of the North Carolina Senate; TIM MOORE, in his official capacity as Speaker of the North Carolina House of Representatives,

Plaintiffs,

v.
UNITED STATES DEPARTMENT OF JUSTICE; LORETTA E. LYNCH, in her official capacity as Attorney General of the United States; VANITA GUPTA, in her official capacity as Principal Deputy Assistant Attorney General,

COMPLAINT FOR DECLARATORY RELIEF

Defendants.

By: /s/ S. Kyle Duncan S. KYLE DUNCAN* GENE C. SCHAERR* SCHAERR | DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202-787-1060 E-mail: kduncan@schaerr-duncan.com DC Bar No. 1010452 E-mail: gschaerr@schaerr-duncan.com DC Bar No. 416638 Attorneys for Plaintiffs

By: /s/ Robert D. Potter, Jr. ROBERT D. POTTER, JR. ATTORNEY AT LAW 2820 Selwyn Avenue, #840 Charlotte, NC 28209 704-552-7742 E-mail: rdpotter@rdpotterlaw.com NC Bar No. 17553 Local Civil Rule 83.1 Counsel for Plaintiffs

*Appearing Pursuant to Local Civil Rule 83.1; notice of appearance to be filed

May 9, 2016

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INTRODUCTION 1. When people find themselves in the intimate settings of public bathrooms, locker rooms, or showers, they expect to encounter only other people of the same biological sex. Until very recently, that simple expectation of bodily privacy would have been taken for granted. Yet when North Carolina sought to protect that expectation in law—by enacting the “Public Facilities Privacy and Security Act” (the “Act”), commonly known as HB2—a torrent of vicious criticism was unleashed against the State, its officials, and its citizens. The abuse has now reached its apex with the unprecedented threats by the United States Department of Justice (“Department”), the defendant here. Last week, the Department sent letters to North Carolina public officials and agencies informing them that, by complying with the Act, they were engaging in a “pattern or practice” of discrimination in violation of three federal civil rights laws. They were bluntly ordered to repudiate the Act within five calendar days—that is, by today—or else face enforcement actions that would drastically impact North Carolina, including the potentially catastrophic elimination of more than two billion dollars in federal funding. Instead of meekly complying, plaintiffs—the leaders of both chambers of the North Carolina General Assembly—have filed this declaratory judgment action. 2. A declaratory judgment is urgently needed for two basic reasons. First, it is needed to vindicate the sovereign right of North Carolina’s citizens to decide how best to protect their own bodily privacy and dignity in intimate public settings. Second, it is needed to instruct the Department in no uncertain terms that its
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overbearing abuse of executive authority flouts our Constitution’s limitations on federal power and tramples on the sovereign dignity of the States and their citizens.
3. The ideological extremity—and utter unworkability—of the Department’s position on the issues in this case is astonishing. Unlike the people of North Carolina, the Department believes that the only valid approach to issues of gender dysphoria is to allow anyone to use any communal public bathroom, locker room, or shower based solely on that person’s self-declared “gender identity.” Never mind that no federal statute or regulation remotely requires the Department’s policy. Never mind that the Department’s policy will inevitably lead to women and girls in public changing facilities encountering individuals who, whatever their gender identity, still have fully functional male genitals. Never mind that the Department’s policy, on its face, demands that North Carolina allow biologically male prison inmates who identify as females to take showers with biologically female inmates—which, besides being absurd and dangerous, also violates the Department’s own federal prison regulations. Apparently, the Department believes that these obvious social costs are outweighed by the policy’s purported psychological benefits to persons of conflicted gender identity.
4. The people of North Carolina came to a different and far more sensible conclusion, one they enacted in the law at issue in this case. Despite being grossly mischaracterized in the media, the Act does not embody hostility towards those whose gender identity differs from their biological sex. To the contrary, the Act specifically allows a flexible system of single-occupancy facilities for persons who do
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not wish to use public facilities designated for their biological sex. The Act also leaves in place existing provisions allowing a person to obtain a sex-change operation, make a corresponding change to their birth certificate, and then use the public facilities consistent with their new anatomy. And the Act allows private businesses and other entities to determine their own bathroom policies—including, if they wish, policies closer to the Department’s views.
5. But the Act also reflects concern and compassion for the many North Carolina residents—especially girls and women—who do not wish to be in close proximity to persons with genitals characteristic of the opposite sex when using public restrooms, locker rooms, and showers. Those people reasonably believe that a policy allowing people of the opposite biological sex into those spaces would be an assault on their dignity, privacy, and safety, and an affront to the legitimate and longstanding privacy expectations of all North Carolinians. That is why, in publicly owned facilities, the Act simply requires that everyone—regardless of their “gender identity” use the facilities that correspond to their current anatomy.
6. In short, the Act is not, as it has been mischaracterized in the press, an “anti-transgender” law. It is, rather, a law that promotes both privacy and safety, while accommodating the legitimate interests of persons with conflicts between their biological and gender identities.
7. Nonetheless, in a series of highly publicized and unusual letters sent to North Carolina officials and agencies last week, the Department announced its “determination” that the Act, on its face, violates three federal civil rights statutes—
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Title VII, Title IX, and the Violence Against Women Act. As explained more fully elsewhere in this Complaint, the legal theories reflected in the Department’s determination letters are gravely flawed. For example, those theories all rest on the implausible premise that a privacy policy expressly designed to avoid making distinctions based on gender identity—by relying on anatomy instead—nonetheless “facially” discriminates on the basis of gender identity. That is nonsensical.
8. More important for present purposes, the Department’s “determination” that the Act violates these civil rights laws represents an all-out assault, not only on the sovereign right of North Carolinians to determine their own policies regarding public bath and shower facilities, but on the right of every other State and local government to do the same. It is a remarkable act of executive overreach, one that unnecessarily insists on political correctness at the expense of privacy and safety for other vulnerable citizens, especially women and girls.
9. Relatedly, the Department’s “determination” is also an assault on the whole system of single-sex bathrooms that, precisely because of privacy concerns, has been an accepted part of our Nation’s social compact since time out of mind. As a legal matter, if a biologically male individual can access a women’s bathroom based on a claim of “gender identity,” then any males can gain access on the same kind of claim, regardless of whether they “identify” as male or female: If discrimination based on “gender identity” is unlawful when the person seeking access identifies as a female, then it must be equally unlawful when that person identifies as a male. Furthermore, as a practical matter, if owners of public
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bathrooms, lockers, and shower facilities cannot exclude persons with male genitals from women’s bathrooms, soon enough the public will sensibly demand that singlesex bathrooms be abandoned altogether in favor of single-occupancy facilities.
10. To be sure, owners of private bath, locker, and shower facilities may decide to move in that direction on their own. But state taxpayers should not be forced to shoulder the enormous costs of such a transition at the behest of federal officials who offer nothing more than policy arguments masquerading as law. Nor should innocent state residents be forced to endure the assault on their privacy that policy would produce in the interim.
11. In sum, declaratory relief is urgently needed in this case. It is needed to protect the sovereignty of North Carolina’s people to set public policy on sensitive and controversial matters of bodily privacy and security. It is needed to shield North Carolina from an open-ended threat of a potentially catastrophic loss of federal funding based on nothing more than the Department’s novel and untested misreading of longstanding federal requirements. And it is needed to clarify that federal officials abuse their authority—and violate the Constitution—when they peremptorily order a sovereign State to abandon properly enacted legislation, as if North Carolina were nothing more than a tributary of the federal government.
JURISDICTION AND VENUE 12. The Court has jurisdiction under 28 U.S.C. § 1331 because the action arises under the United States Constitution and federal law.
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13. The Court may enter declaratory relief and any other appropriate relief under 28 U.S.C. § 2201 and § 2202.
14. The Court may review agency action and enter declaratory and other appropriate relief under the Administrative Procedure Act, 5 U.S.C. §§ 702-706.
15. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to this action occurred in this judicial district.
16. Venue is also proper under 28 U.S.C. § 1391(e) because, in this action against officers and agencies of the United States, a substantial part of the events or omissions giving rise to this action occurred in this judicial district and because the Plaintiffs reside in this district and no real property is involved in this action.
PARTIES 17. Plaintiffs Phil Berger and Tim Moore serve as President pro tempore of the North Carolina Senate and as Speaker of the North Carolina House of Representatives, respectively. President pro tempore Berger and Speaker Moore lead the two chambers of the North Carolina General Assembly, which is constitutionally tasked with budgeting for the operation of all facets of state government and with enacting laws for the health, safety, and welfare of North Carolinians. Moreover, under North Carolina law, President Berger and Speaker Moore “jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution.” N.C. Gen. Stat. § 1-72.2-2.
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18. Defendant United States Department of Justice (“Department”) is an executive agency of the United States and is responsible for the enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., and the Violence Against Women Reauthorization Act of 2013, 42 U.S.C. § 13925, et seq.
19. Defendant Loretta E. Lynch is the United States Attorney General. In this capacity she is responsible for the operation and management of the Department. She is sued in her official capacity only.
20. Defendant Vanita Gupta is a Principal Deputy Assistant Attorney General at the United States Department of Justice and an official of the Civil Rights Division of the United States Department of Justice. She has been delegated the responsibility to bring an enforcement action under Title VII, Title IX, and VAWA against the State of North Carolina and its public agencies and officials. She has been sued in her official capacity only.
FACTS I. THE ACT
21. On March 23, 2016, the General Assembly of North Carolina passed the “Public Facilities Privacy and Security Act” (the “Act”), commonly known as HB2. 2015 Bill Text NC H.B. 2B (Mar. 23, 2016), amending N.C. Gen. Stat. § 115C47.
22. As relevant here, the Act requires that a “multiple occupancy restroom or changing facility” operated by any “public agency” in North Carolina be
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“designated for and only used by persons based on their biological sex.” HB2, § 1.3(B).
23. “Biological sex” is defined as “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” Id. § 1.3(A)(1).
24. A “multiple occupancy restroom or changing facility” is defined as “[a] facility designed or designated to be used by more than one person at a time where persons may be in various states of undress in the presence of other persons” and “may include, but is not limited to, a restroom, locker room, changing room, or shower room.” Id. § 1.3(A)(3).
25. A “public agency” includes executive branch agencies; the legislative and judicial branches; political subdivisions; local and municipal governments; all state agencies, boards, offices and departments under the direction and control of a member of the council of state; and local boards of education. Id. § 1.3(4)(A)-(H); § 1.2.
26. The Act, however, does not apply to any “single occupancy bathroom or changing facility,” which is defined as “[a] facility designed or designated to be used by only one person at a time where persons may be in various states of undress,” and includes “a single stall restroom designated as unisex or for use based on biological sex.” Id. § 1.3(A)(5); § 1.2(A)(3).
27. In fact, the Act expressly allows public agencies to “provid[e] accommodations such as single occupancy bathroom or changing facilities upon a person’s request due to special circumstances[.]” Id. § 1.3(C); see also id. § 1.2(C)
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(providing that “[n]othing in this section shall prohibit local boards of education from providing accommodations such as single occupancy bathrooms or changing facilities or controlled use of faulty facilities upon a request due to special circumstances”).
28. On April 12, 2016, Governor McCrory issued Executive Order No. 93, entitled “To Protect Privacy and Equality.” Among other things, the Order (1) affirmed that “private businesses can set their own rules for their own restroom, locker room and shower facilities”; (2) confirmed that multiple-occupancy restroom, locker rooms, and shower facilities in cabinet agencies must comply with the Act; but (3) emphasized that “all cabinet agencies shall provide a reasonable accommodation of a single occupancy restroom, locker room or shower facility upon request due to special circumstances,” and encouraged all “council of state agencies, cities, counties, the University of North Carolina System and the North Carolina Community College System” to make similar accommodations where practicable. II. THE DEPARTMENT’S “DETERMINATION” LETTERS
29. On May 4, 2016, the Department, through its Civil Rights Division, sent a letter to North Carolina Governor Patrick McCrory (the “McCrory Determination Letter”).
30. The McCrory Determination Letter stated that the Department had “determined” and “concluded” that, as a result of complying with the Act, Governor McCrory and the State of North Carolina were “in violation of Title VII of the Civil Rights Act of 1964” because the State was “engaging in a pattern or practice of
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discrimination against transgender state employees and both you, in your official capacity, and the State are engaging in a pattern or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies.”
31. The McCrory Determination Letter explained that the Department had adopted the view that Title VII “applie[s] to discrimination against transgender individuals based on sex, including gender identity,” and that Title VII requires “[a]ccess to sex-segregated restrooms and other workplace facilities consistent with gender identity.” The letter further stated that under Title VII such “access … is a term, condition, or privilege of employment.”
32. The McCrory Letter concluded that “H.B. 2 ... is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their ‘biological sex,’ as defined by H.B. 2, differently from similarly situated non-transgender employees” (emphasis added). The letter further informed the Governor that, given the State’s “pattern and practice” of Title VII discrimination, the Attorney General “may apply to the appropriate court for an order that will ensure compliance with Title VII.”
33. Finally, the McCrory Determination Letter ordered the Governor to “advise” the Department “no later than close of business on May 9, 2016” whether he would “remedy these violations of Title VII, including by confirming that the State will not comply with or implement H.B. 2, and that it has notified employees of the State and public agencies that, consistent with federal law, they are
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permitted to access bathrooms and other facilities consistent with their gender identity.”
34. Also on May 4, 2016, the Department, through its Civil Rights Division, sent a letter to North Carolina Department of Public Safety (“DPS”) Secretary Frank Perry (the “Perry Determination Letter”).
35. The Perry Determination Letter “concluded” that the North Carolina DPS was in violation of Title VII, for the same reasons as those outlined in the McCrory Determination Letter.
36. In addition, the Perry Determination Letter “concluded” that DPS, as a receiver of federal funds from the Office on Violence Against Women (“OVW”) “is in violation of the Violence Against Women Reauthorization Act of 2013” (“VAWA”).
37. The Perry Determination Letter went on to allege that compliance with VAWA requires that any “individual” in “buildings controlled or managed by DPS or its sub-recipients”—buildings which would obviously include prisons throughout the State—be permitted “to access bathrooms and other facilities consistent with their gender identity.”
38. Finally, the letter ordered Secretary Perry to “advise” the Department “no later than close of business on May 9, 2016” whether DPS has “remedied these violations to comply fully with Title VII and VAWA, including by confirming that DPS will not comply with H.B. 2, and that it has notified individuals and employees at facilities controlled or managed by DPS or its sub-recipients that, consistent with
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federal law, they are permitted to access bathrooms and other facilities consistent with their gender identity.”
39. Also on May 4, 2016, the Department, through its Civil Rights Division, sent a letter to the President of the University of North Carolina, Margaret Spellings (the “UNC Determination Letter”).
40. The UNC Determination Letter “determined” that UNC was in violation of Title VII and VAWA, for the same reasons as those outlined in the McCrory and Perry Determination Letters.
41. In addition, the UNC Determination Letter “determined” that UNC was in violation of Title IX because of UNC’s compliance with the Act.
42. Finally, the UNC Determination Letter ordered UNC President Margaret Spellings to “advise” the Department “no later than close of business on May 9, 2016” whether UNC has “remedied these violations to comply fully with Title IX and VAWA, as well as its obligations as an employer under Title VII, including by . . . advising the public, including UNC students, employees, and third parties that, in accordance with federal law, individuals are permitted to access UNC restrooms and other facilities consistent with their gender identity.” The UNC Determination Letter threatened “enforcement action” if UNC failed to comply with the Department’s order.
43. The Department’s letters are calculated, not only to prevent North Carolina public officials from enforcing or implementing the Act, but also to pressure the North Carolina General Assembly into repealing the Act. Accordingly,
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the Department’s letters harm these plaintiffs as well as other members of the General Assembly. III. THE DEPARTMENT’S LETTERS CONSTITUTE FINAL AGENCY
ACTION UNDER THE APA. 44. The Department of Justice is a federal agency for purposes of the Administrative Procedures Act (“APA”). 5 U.S.C. § 701(b). 45. Under the APA, a court may review agency decisions that constitute “final agency action.” 5 U.S.C. § 704. 46. Generally, an agency action is final when it “mark[s] the ‘consummation’ of the agency’s decisionmaking process” and [is] one by which ‘rights or obligations have been determined,’ or from which 'legal consequences will flow[.]’” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted). 47. Final agency action may take the form of a letter announcing the agency’s position on a substantive legal matter. “[A]n agency may not avoid judicial review merely by choosing the form of a letter to express its definitive position on a general question of statutory interpretation." Ciba-Geigy Corp. v. United States EPA, 801 F.2d 430, 438 n.9 (1986); accord CSI Aviation Servs. v. US DOT, 637 F.3d 408, 412 (D.C. Cir. 2011) (citing Ciba-Geigy). 48. Indeed, “a letter from an agency official stating the agency’s position and threatening enforcement action constitute[s] final agency action[.]” Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000); see also CSI Aviation Servs., 637 F.3d at 412 (finding final agency action where DOT “warning letter” constituted a “definitive statement of the agency’s legal position”). That is
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especially true where the letter “declare[s] in no uncertain terms” the agency’s position on “a purely legal” question of “statutory interpretation.” CSI Aviation Servs., 637 F.3d at 412
49. Yet another indication that such action is final is when an actor’s “only alternative to obtaining judicial review is to violate [the agency’s] directives, … and then defend an enforcement proceeding.” Barrick Goldstrike Mines, 215 F.3d at 49; see also CSI Aviation Servs., 637 F.3d at 412 (finding final agency action where DOT “cease and desist” letter “put the [plaintiff] to the painful choice between costly compliance and the risk of prosecution at an uncertain point in the future”). And that is especially true when the consequences of not complying with the agency demand are great. See, e.g., CSI Aviation Servs., 637 F.3d at 412 (finding final agency action where DOT enforcement letter “imposed an immediate and significant burden on [the recipient]” and “cast a cloud of uncertainty over the viability of [the recipient’s] ongoing business”).
50. The Department’s Determination Letters to McCrory, Perry, and Spellings constitute reviewable final agency action under the APA.
51. All three letters reflect a settled and definitive agency position. The letters note that the Department has “concluded” and “determined” that the State of North Carolina, and its public agencies and officials, are actively violating federal law.
52. All three letters unambiguously threaten enforcement action against North Carolina and its public agencies and officials absent compliance. Each
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explains that the Attorney General—who is responsible for actions taken by the Department, including the letters—may apply for a court order to seek enforcement of the federal statutes at issue absent compliance by North Carolina and its public agencies and officials.
53. All three letters indicate the Department’s clear and settled position that, absent compliance by the State and its public agencies and officials, the Department’s next step is not to seek further discussions or commence a factual investigation, but rather to bring an enforcement action.
54. The letters unambiguously alter the legal positions of North Carolina, and its public agencies and officials, by putting them to the choice of ceasing to enforce the Act or facing a federal enforcement proceeding.
55. The letters directly harm the State and its public agencies and officials by requiring them to yield their responsibility as officers of a sovereign state to enforce the Act, or face federal enforcement proceedings. Furthermore, the letters directly harm plaintiffs by disrupting the work of the North Carolina General Assembly in safeguarding the privacy and safety of North Carolina’s citizens and in establishing the budget for North Carolina’s public agencies and programs.
56. The letters take a definitive position on a purely legal question of statutory interpretation. None of the letters suggest that any additional factual inquiry needs to take place. Moreover, the letters assert that the Act violates the relevant federal laws, not just as applied in particular circumstances, but facially.
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57. Finally, as noted, the letters are calculated, not only to prevent North Carolina public officials from enforcing or implementing the Act, but also to pressure the North Carolina General Assembly into repealing the Act. Accordingly, the Department’s letters harm the plaintiffs as well as other members of the General Assembly. IV. THE DETERMINATION LETTERS’ ADVERSE EFFECTS
58. The Department’s stunningly overbroad and conclusory determinations that the Act “facially violates” Title VII, Title IX, and VAWA place plaintiffs and the State of North Carolina in an intolerable position that threatens to disrupt the integrity of its public agencies, the financial stability of its universities and school systems, and, most profoundly, the ability of its public officials to provide for the common good of North Carolina citizens.
59. On the one hand, if plaintiffs and other legislators in the North Carolina General Assembly and the State’s public agencies and officials resist the Department’s demands and continue implementing the will of the citizenry as expressed in the Act, the State’s school systems could lose hundreds of millions of dollars of federal education funds. Such a loss would not only impair the teaching and research mission of UNC, but would also affect K-12 education throughout the State. Local schools would likely be forced to curtail programs, fire teachers and increase class sizes—all to the detriment of the State’s hundreds of thousands of schoolchildren. All this because the federal government, if the Department carries
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out its threat, would refuse to return to the people of North Carolina federal tax dollars that those very people have paid into the federal treasury.
60. Similarly, the Department’s demands carry a threat to cut off over $100 million in annual federal funding currently provided to the State’s Department of Public Safety. Here again, these are funds that North Carolina citizens have already paid into the federal treasury in the form of tax payments. Yet the Department’s Determination Letters implicitly threaten to withhold those funds—which could lead to more crowding of North Carolina’s prisons, reduced numbers of prisons guards, and thus an increased risk of crime both inside and outside those prisons.
61. On the other hand, if plaintiffs and other legislators in the North Carolina General Assembly, or any of the State’s public agencies and officials, capitulate to the Department’s demands, this would subject the people of North Carolina to the very risks the Act was designed to prevent. As previously explained, the Department demands that the State allow anyone to use any public bathroom, locker room or shower based solely on that person’s self-declared gender “identity.” Such a policy would necessarily lead to partially or fully unclothed women and girls coming into close proximity and visual contact with individuals who, whatever their gender identity, nonetheless display male sex organs.
62. Such a policy would also create an opportunity for sexual predators of any sexual orientation to abuse the policy to facilitate their predation. And in so doing, such a policy would violate settled, legitimate expectations of privacy and
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safety that have long prevailed in the State. Indeed, under the Department’s legal theory, a biological male found in a woman’s restroom has a legal right to be there if he merely claims to “self-identify” as female. And a police officer summoned to remove such a person in a public restroom, locker room, or shower would have no practical way to determine quickly whether the person is acting in bad faith.
63. Before long, moreover, such a policy would likely provoke a public outcry demanding that single-sex facilities be abandoned altogether and replaced with single-user bathroom, shower and locker facilities. That in turn would likely force the plaintiffs and other members of the General Assembly to authorize funding to retrofit countless public buildings, at a taxpayer cost of hundreds of millions if not billions of dollars.
64. In the prison setting, the consequences of capitulation to the Department’s demands would be equally if not more stark. The Department’s demand with respect to prisons is not limited to prison employees, but extends to inmates as well—all “individuals” in those prisons. If, as the Department apparently insists, prison officials cannot “discriminate” based on anatomy in granting access to bath, locker and shower facilities, then they cannot, for example, exclude biological males from female bath and shower facilities. And that inability would create an obvious risk of more sexual assaults and increased voluntary sexual activity—thereby leading to more prison pregnancies and sexually transmitted diseases. These effects would likewise impose massive additional costs
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on the State’s prison system—costs that would require further action by plaintiffs and other members of the General Assembly.
65. Nor would the effects of a capitulation be limited to publicly owned bath, locker-room and shower facilities. If as the Department contends, Title VII requires that anyone be allowed to use any such facility based on their asserted sexual orientation, that rule necessarily applies to private as well as public employers and, indeed, businesses generally. There is only one Title VII standard. And if the Department succeeds in imposing its view of Title VII on the State itself, it will be only a short step to imposing that view on virtually every owner of bath, locker and shower facilities throughout the State and, indeed, throughout the Nation.
66. In all these ways, if North Carolina and its public agencies and officials, including plaintiffs, were to capitulate to the Department’s demands, they would violate the trust of the North Carolina citizenry to protect their privacy and safety.
CLAIMS FOR RELIEF CLAIM ONE:
The Act Does Not Facially Violate Title VII, Properly Construed 67. Plaintiffs reallege all matters alleged in paragraphs 1 through 66 and incorporate them herein. 68. For several reasons, the Department’s determination that the Act facially violates Title VII is wrong as a matter of both law and proper procedure.
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This will be established in greater detail (with appropriate citations) in briefing on the merits. But following are a few of the salient reasons.
69. First, at the threshold, the Department’s premise that the Act “facially discriminates” on the basis of gender “identity” is patently incorrect. On the face of the Act, a person’s ability to use a particular multi-occupancy bathroom, locker room or shower facility depends, not on the person’s gender identity, but on the person’s “biological sex”—as determined by the person’s birth certificate. See HB2 §§ 1.2, 1.3. Accordingly, if there is any “discrimination” here, it is discrimination on the basis of biological sex, not gender identity. And, although a “separate but equal” approach is clearly inappropriate with respect to racial classifications, separating the sexes based on legitimate physical and anatomical characteristics has always been viewed as consistent with Title VII and other non-discrimination statutes – especially in the context of bathrooms, locker rooms and showers.
70. Moreover, North Carolina law expressly allows citizens to obtain sex change operations, and then change the sex listed on their birth certificates. See N.C. Gen. Stat. Ann. § 130A-118. Thus, for example, a person who was a male at birth but who “identifies” as female has the ability to gain access to women’s bathrooms if (s)he so chooses. Accordingly, there simply is no “facial discrimination” against anyone based on their gender identity.
71. Second, and more fundamentally, the Department is incorrect in contending that Title VII’s prohibition on discrimination on the basis of “sex” extends to discrimination on the basis of “gender identity” or even sexual
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orientation. Although that position has recently (and controversially) been adopted by the current Equal Employment Opportunity Commission for claims brought before that agency, the same position has been uniformly rejected by every federal circuit court to consider it, and by virtually all of the district courts as well. (The court cases cited in the Department’s letters deal with sex and gender stereotyping, not gender identity or sexual orientation per se, and are therefore not controlling on the questions here.) Nor is there any indication in Title VII’s language or legislative history of any purpose on Congress’s part to reach alleged discrimination on the basis of gender identity.
72. Third, because Congress’s decision to extend Title VII to the states rested solely upon Section 5 of the Fourteenth Amendment, any requirements imposed on the states under the guise of that statute must be directed at preventing or remedying violations of the federal Constitution, and must be both “congruent with and proportional” to that goal. Yet the Department does not even contend— nor could it contend—that people with a gender identity different from their biological sex are a protected class, much less that extending Title VII to laws such as the Act is congruent and proportional to the goal of preventing unconstitutional discrimination against members of that class. Accordingly, given that it is grounded solely in the Fourteenth Amendment, Title VII cannot constitutionally be applied to the Act or similar laws, and therefore cannot constitutionally be construed in the manner the Department contends.
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73. Fourth, in any event, the federal government lacks the constitutional authority to preempt the States’ efforts to protect the privacy and safety of residents using State-owned bathroom, locker room and shower facilities. Providing such protection in State-owned facilities falls squarely within the police power protected from federal encroachment by the enumerated powers doctrine and recognized in the Tenth Amendment. And the use of such facilities by people who “identify” with a gender other than their biological sex cannot possibly have an impact on interstate commerce sufficient to justify federal regulation under Article I. Indeed, the Department’s determination under Title VII constitutes an improper attempt to commandeer State-owned property in pursuit of a (dubious) federal policy. For that reason too Title VII cannot constitutionally be construed in the manner the Department contends.
74. Finally, even if the Act could hypothetically violate Title VII (properly construed) in some of its possible applications, it cannot possibly be unlawful in all of its possible applications, and for that reason cannot be facially unlawful. For example, even under the Department’s interpretation of Title VII, the Act would be lawful when applied to prevent a known male sexual predator from falsely claiming to “identify” as female so that he can enter a women’s bathroom and prey upon a little girl whom he has seen enter alone. Surely the Department’s interpretation of Title VII would not require that people making knowingly false claims of gender identity (and claims that are known to authorities to be false) be allowed to enter a bathroom or shower designated for people of the opposite sex. Because the Act
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prevents entry into facilities designated for people of the opposite sex by those making knowingly false claims of gender identity in addition to those making genuine claims of gender identity, the Act clearly is not unlawful in all of its applications, and therefore is not unlawful on its face.
75. For all these reasons, the Department’s determination that the Act facially violates Title VII is both “contrary to law” and “arbitrary and capricious” within the meaning of the APA. Furthermore, the Department violated the APA and the due process rights of the plaintiffs and the State by reaching its determination without any advance notice or opportunity to be heard.
CLAIM TWO: The Act Does Not Facially Violate Title IX, Properly Construed 76. Plaintiffs reallege all matters alleged in paragraphs 1 through 75 and incorporate them herein. 77. For several reasons, the Department’s determination that the Act facially violates Title IX is wrong as a matter of both law and proper procedure. This will be established in greater detail (with appropriate citations) in briefing on the merits. But following are a few of the salient reasons. 78. First, at the threshold, the Department’s premise that the Act “facially discriminates” on the basis of gender “identity” is patently incorrect. On the face of the Act, a person’s ability to use a particular multi-occupancy bathroom, locker room or shower facility depends, not on the person’s gender identity, but on the person’s “biological sex”—as determined by the person’s birth certificate. See HB2 §§ 1.2, 1.3. Accordingly, if there is any “discrimination” here, it is discrimination on
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the basis of biological sex, not gender identity. And, although a “separate but equal” approach is clearly inappropriate with respect to racial classifications, separating the sexes based on legitimate physical and anatomical characteristics has always been viewed as consistent with Title IX and other non-discrimination statutes – especially in the context of bathrooms, locker rooms and showers.
79. This conclusion is particularly evident with respect to Title IX, which both by statute and regulation expressly authorizes the provision of facilities or programs segregated by sex, provided each is comparable for males and females. See, e.g., 20 U.S.C. § 1686 (allowing educational institutions to “maintain[ ] separate living facilities for the different sexes”); 34 C.F.R. § 106.32 (allowing funding recipients to “provide separate housing on the basis of sex,” provide those facilities are “[p]roportionate in quantity” and “comparable in quality and cost”); 34 C.F.R. § 106.34 (allowing “separation of students by sex” within physical education classes and certain sports “the purpose or major activity of which involves bodily contact”). Most pertinent here, longstanding Title IX regulations issued by the Department of Education in 1975, and reaffirmed in 1980, expressly allow recipients of federal funding to “provide separate toilet, locker room, and shower facilities on the basis of sex,” provided that the facilities provided for “students of one sex” are “comparable” to the facilities provided for “students of the other sex.” 34 C.F.R. § 106.33.
80. In light of that, the Department is plainly wrong to conclude that, by complying with the Act, the plaintiffs are thereby engaging in a “pattern or practice of discrimination” under Title IX. By requiring public multiple-occupancy
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bathrooms, locker rooms, and showers to be segregated by “biological” sex, the Act has done nothing remotely out of line with the clear statutory and regulatory directives in Title IX. To the contrary, the Act is authorized by the most directly applicable Title IX regulation, which allows sex-segregated “toilet[s], locker room[s], and shower facilities.” 34 C.F.R. § 106.33.
81. Second, and more fundamentally, the Department is incorrect in contending that Title IX’s prohibition on discrimination on the basis of “sex” extends to discrimination on the basis of “gender identity.” There is no indication in Title IX’s language or legislative history of any purpose on Congress’s part to reach alleged discrimination on the basis of gender identity. Furthermore, that view has been uniformly rejected by every federal circuit court to consider it, and by virtually all of the district courts as well. (The court cases cited in the Department’s letters deal with sex and gender stereotyping, not gender identity or sexual orientation per se, and are therefore not controlling on the questions here.)
82. Third, the Department compounds its erroneous reading of Title IX by relying on a recent Department of Education “opinion letter” suggesting that Title IX’s prohibition on “sex” discrimination extends to discrimination based on “gender identity.” See Letter from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights, U.S. Dep’t of Education (Jan. 7, 2015). The Department is mistaken. Even assuming the Fourth Circuit was correct in determining recently that a mere “opinion letter” merits deference, see G.G. v. Gloucester County School Board, 2016 U.S. App. LEXIS 7026 (4th Cir. Jan. 27,
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2016), the Department nonetheless cannot prevail here because the opinion letter is plainly erroneous, inconsistent with Title IX and its regulations, and would render Title IX unconstitutional. See id., 2016 U.S. App. LEXIS at 23 (explaining that agency interpretation of Title IX regulation merits deference under Auer v. Robbins, 519 U.S. 452 (1997), unless interpretation is “plainly erroneous or inconsistent with the regulation or statute”); id. at 32 (observing that there was “no constitutional challenge to the regulation or agency interpretation”).
83. The opinion letter’s notion that “sex” discrimination encompasses “gender identity” discrimination is plainly erroneous and inconsistent with both Title IX and its implementing regulations. Among other things, it would render incoherent Title IX’s longstanding and express allowance of sex-segregated facilities and programs. More fundamentally, the opinion letter’s interpretation would render Title IX unconstitutional: as explained below, it would require States to violate persons’ constitutional rights to bodily privacy and parents’ constitutional rights to direct the education and upbringing of their children; it would violate the Spending Clause and the Tenth Amendment by conditioning States’ receipt of federal funds on a novel requirement that no State could have reasonably foreseen; and it would violate the constitutional separation of powers by purporting to enact new legislation outside the constraints of Article I of the Constitution.
84. Moreover, Gloucester does not purport to decide the actual question at issue in this case—namely, whether Title IX itself is facially violated if a State limits public multiple-occupancy restrooms, changing facilities, and showers to
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persons of the same biological sex (while permitting a system for accommodating persons with conflicting gender identities through single-occupancy facilities). Gloucester did not reach that issue (and, indeed, had nothing to do with changing facilities or showers at all), but decided only that a Department of Education opinion letter purporting to interpret an implementing regulation under Title IX merits Auer deference, absent a showing that the letter is plainly erroneous, inconsistent with Title IX, or unconstitutional. Gloucester remanded for further proceedings on the Title IX issue, leaving open the ultimate question of whether Title IX facially permits a State to require public multiple-occupancy restrooms, changing facilities, and showers to be segregated by biological sex (while permitting a system for accommodating persons with conflicting gender identities through single-occupancy facilities).
85. In addition, the Fourth Circuit’s Gloucester opinion is incorrect. An agency can impose new obligations or prohibitions on regulated parties only through notice-and-comment rulemaking—not through a unilateral “opinion letter.” Thus, the Department cannot rely on the “opinion letter” to re-cast Title IX’s prohibition on “sex” discrimination as a prohibition on “gender identity” discrimination. Instead, the Department can only rely on the plain meaning of Title IX and its implementing regulations, which for decades have unambiguously permitted sex-segregated restrooms, changing rooms, and shower facilities.
86. Fourth, the federal government lacks the constitutional authority to deploy the Department’s novel reading of Title IX to preempt the States’ efforts to
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protect the privacy and safety of residents using public bathroom, locker room and shower facilities. Indeed, the Department’s reading of Title IX would compel States to violate persons’ constitutional rights to bodily privacy and parents’ constitutional rights to direct the education and upbringing of their children with respect to matters of sexuality. The Department’s reading of Title IX would therefore infringe the States’ Tenth Amendment authority to provide for their citizens’ privacy and well-being, and would additionally constitute an unconstitutional commandeering of state property and lawmaking processes. For those reasons, too, Title IX cannot constitutionally be construed in the manner the Department contends.
87. Fifth, the Department’s novel reading of Title IX to encompass “gender identity” discrimination would make Title IX run afoul of the Spending Clause and the Tenth Amendment. The conditions the federal government attaches to the States’ receipt of federal funds must be clear and unambiguous, so that States may make an informed choice about whether to accept the funds. No State could have reasonably foreseen that a condition on accepting federal funds prohibiting “sex” discrimination would somehow evolve through unilateral agency action into a prohibition on “gender identity” discrimination—particularly when Title IX’s longstanding regulations expressly allow States to maintain sex-segregated restrooms, locker rooms, and shower facilities. Furthermore, by exposing the State to a potentially catastrophic loss of federal funding if the State did not acquiesce in the agency’s novel reading of Title IX, the Department would violate the Tenth Amendment.
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 88. Finally, even if the Act could hypothetically violate Title IX (properly
construed) in some of its possible applications, it cannot possibly be unlawful under Title IX in all of its possible applications, and for that reason cannot be facially unlawful. For example, even under the Department’s interpretation of Title IX, the Act would be lawful when applied to prevent a known male sexual predator from falsely claiming to “identify” as female so that he can enter a women’s bathroom and prey upon a little girl whom he has seen enter alone. Surely the Department’s interpretation of Title IX would not require that people making knowingly false claims of gender identity (and claims that are known to authorities to be false) be allowed to enter a bathroom or shower designated for people of the opposite gender. Because the Act prevents entry into facilities designated for people of the opposite sex by those making knowingly false claims of gender identity in addition to those making genuine claims of gender identity, the Act clearly is not unlawful in all of its applications, even under the Department’s interpretation of Title IX, and therefore is not unlawful on its face.
89. For all these reasons, the Department’s determination that the Act facially violates Title IX is both “contrary to law” and “arbitrary and capricious” within the meaning of the APA. Furthermore, the Department violated the APA and the due process rights of the plaintiffs and the State by reaching its determination without any advance notice or opportunity to be heard.
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CLAIM THREE: The Act Does Not Facially Violate VAWA, Properly Construed 90. Plaintiffs reallege all matters alleged in paragraphs 1 through 89 and incorporate them herein. 91. For several reasons, the Department’s determination that the Act facially violates VAWA is wrong as a matter of both law and proper procedure. This will be established in greater detail (with appropriate citations) in briefing on the merits. But following are a few of the salient reasons. 92. First, at the threshold, the Department’s premise that the Act “facially discriminates” on the basis of gender “identity” is patently incorrect. On the face of the Act, a person’s ability to use a particular multi-occupancy bathroom, locker room or shower facility depends, not on the person’s gender identity, but on the person’s “biological sex”—as determined by the person’s birth certificate. See HB2 §§ 1.2, 1.3. Accordingly, if there is any “discrimination” here, it is discrimination on the basis of biological sex, not gender identity. And, although a “separate but equal” approach is clearly inappropriate with respect to racial classifications, separating the sexes based on legitimate physical and anatomical characteristics has always been viewed as consistent with VAWA and other non-discrimination statutes – especially in the context of bathrooms, locker rooms and showers. 93. Second, VAWA itself dispels any notion that the Act facially violates VAWA’s grant conditions. As the Department’s letter fails to note, VAWA explicitly allows funding recipients to consider an individual’s sex in establishing sexsegregated or sex-specific programming. While VAWA does prohibit discrimination
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in funded programs on the basis of “sex” and “gender identity,” 42 U.S.C. § 13925(b)(13)(A), the statute contains an “exception” that allows funded programs to consider an individual’s sex “[i]f sex-segregation or sex-specific programming is necessary to the essential operation of a program.” Id. § 13925(b)(13)(B). A program grantee satisfies VAWA requirements in such cases “by providing comparable services to individuals who cannot be provided with the sex-segregated or sexspecific programming.” Id.
94. In light of VAWA’s explicit safe-harbor for sex-segregated and sexspecific programs, the Department is plainly wrong to conclude that, by complying with the Act, Perry and the North Carolina DPS are “in violation of the nondiscrimination provision of [VAWA].” By requiring public multiple-occupancy bathrooms, locker rooms, and showers in North Carolina correctional facilities to be segregated by “biological” sex, the Act has done nothing remotely out of line with the clear grant conditions in VAWA. To the contrary, the Act is authorized by the most directly applicable VAWA grant condition, which allows grantees to consider an individual’s sex where, as here, “sex segregation or sex-specific programming is necessary to the essential operation of a program.” Id. For reasons explained elsewhere, and as a matter of common sense, sex segregation in multi-user bathrooms, locker rooms and shower facilities is “necessary to the essential operation” of such facilities.
95. Third, the fact that the alleged VAWA violation in this case concerns North Carolina prison inmates make the Department’s conclusion astonishing. The
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Department’s determination plainly extends, not just to prison employees, but to any “individual” in “buildings controlled or managed by DPS or its sub-recipients,” and it orders Perry to allow those individuals to “access restrooms and changing facilities that are consistent with their gender identity.” Thus, by the plain terms of its determination letter, the Department has concluded that any North Carolina correctional facility receiving any VAWA funding must allow prison inmates to access restrooms and changing facilities (as well as showers, which the Department fails to mention) consistent with their “gender identity” or else be subject to a Department enforcement action.
96. The Department cites not a single authority to support its reading of VAWA’s grant condition, and for good reason—the consequences of the Department’s position would fly in the face of every sensible notion of prison management, security, and safety. North Carolina correctional facilities would be required to allow any biologically male prison inmate whose self-expressed “gender identity” is female to use communal bathrooms, changing facilities, and showers with biologically female prison inmates—and vice-versa. The mere statement of that conclusion is sufficient to refute it.
97. Fourth, the Department’s conclusion that North Carolina correctional facilities violate VAWA by refusing to allow “gender identity” to determine inmate use of communal restrooms, changing facilities, and showers contradicts the Department’s own prison regulations. In regulations entitled “Prison Rape Elimination Act National Standards,” the Department requires that, in deciding
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whether to assign “a transgender or intersex inmate” to a male or female prison facility, or in making other “housing and programming assignments” for such inmates, the agency “shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.” 28 C.F.R. § 115.42(c) (emphasis added). Furthermore, the Department’s regulations also require that “[t]ransgender and intersex inmates shall be given the opportunity to shower separately from other inmates.” Id. § 115.42(f) (emphasis added). Neither of those regulations would survive the Department’s current view of VAWA, as expressed in its determination letter, which would now require inmates to be allowed access restrooms, changing facilities, and showers consistent with their self-professed “gender identity,” quite apart from any case-by-case assessment of whether such access would impact prison security or imperil the inmate’s safety.
98. Fifth, if the Department’s conclusion regarding VAWA were correct, then VAWA would be unconstitutional on numerous grounds. It would violate the Tenth Amendment by invading the State’s basic constitutional authority to provide for order and safety in its correctional facilities. It would violate the Spending Clause by placing a condition on the receipt of federal funds that no State could have remotely anticipated when receiving the funds—especially in light of the Department’s own regulations. For similar reasons, the Department’s new position would violate the Tenth Amendment by coercing North Carolina to alter the basic structure of its correctional facilities or else lose large amounts of federal prison
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funding. It would also require North Carolina to violate its own prisoners’ constitutional rights to bodily privacy and safety and expose them to dangerous conditions in violation of the Eighth Amendment.
99. Finally, even if the Act could hypothetically violate VAWA (properly construed) in some of its possible applications, it cannot possibly be unlawful in all of its possible applications, and for that reason cannot be facially unlawful. For example, even under the Department’s interpretation of VAWA, the Act would be lawful when applied to prevent biologically male prisoner from falsely claiming to “identify” as female so that he can enter a communal bathroom, changing facility, or shower in order to victimize biologically female prisoners. Surely the Department’s interpretation of VAWA would not require that people making knowingly false claims of gender identity (and claims that are known to authorities to be false) be allowed to enter a bathroom or shower designated for people of the opposite sex. Because the Act prevents entry into facilities designated for people of the opposite sex by those making knowingly false claims of gender identity in addition to those making genuine claims of gender identity, the Act clearly is not unlawful in all of its applications, even under the Department’s apparent view of VAWA, and therefore is not unlawful on its face.
100. For all these reasons, the Department’s determination that the Act facially violates VAWA is both “contrary to law” and “arbitrary and capricious” within the meaning of the APA. Furthermore, the Department violated the APA
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and the due process rights of the plaintiffs and the State by reaching its determination without any advance notice or opportunity to be heard.
CLAIM FOUR: The Department’s Actions Violate the Separation of Powers in the United
States Constitution 101. Plaintiffs reallege all matters alleged in paragraphs 1 through 100 and incorporate them herein. 102. Multiple provisions of the federal Constitution make clear that, if the federal government is to impose new legal requirements on the States, those requirements must be imposed by or at the behest of Congress, not by the Executive Branch acting on its own. Those provisions include but are not limited to the “vesting” clause of Article I Section 1, the bicameralism and presentment clauses of Article I Section 7, the “take care” clause of Article II Section 3, and the “appropriate legislation” provision of Section 5 of the Fourteenth Amendment. 103. The requirement that the Department’s “determination” seeks to impose upon North Carolina—i.e., a requirement of open “access” to all state-owned “sex-segregated … facilities consistent with gender identity” (McCrory Determination Letter at 1)—is a new legal requirement. For reasons explained above, that requirement—which would logically extend to every other State and virtually all private employers as well—is simply not found in Title VII, Title IX or VAWA. The Department’s attempt to impose that requirement on North Carolina on its own is therefore a usurpation of Congress’s exclusive authority under Article I of the Constitution, which provides that “all legislative powers herein granted shall be vested in … Congress.” Such action is also a violation of the President’s
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obligation under Article II Section 3 to “take care that the laws be faithfully executed.”
104. For all these reasons, the Department’s determination that North Carolina and its officials must grant “access to sex-segregated restrooms and other [similar] facilities consistent with gender identity” is both “contrary to law” and “arbitrary and capricious” within the meaning of the APA. Furthermore, the Department violated the APA and the due process rights of the plaintiffs and the State by reaching its determination without any advance notice or opportunity to be heard.
CLAIM FIVE: The Department’s Actions Violate the Federalism Guarantees of the United
States Constitution 105. Plaintiffs reallege all matters alleged in paragraphs 1 through 104 and incorporate them herein. 106. Several provisions of the federal Constitution also make clear that the States remain independent sovereigns in the federal system, that they joined the Union with their sovereignty—including their traditional police power—intact, and that the federal government is one of limited, enumerated powers. Those provisions include but are not limited to Article I section 8, and section 1 of the Thirteenth, Fourteenth and Fifteenth Amendments—all of which together delineate specific and limited subjects on which Congress may legislate—and the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Aside from racial discrimination, none of those
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provisions authorizes any arm of the federal government to impose requirements for “access” to state-owned bathrooms, locker rooms or shower facilities, much less authorizes the federal government to regulate the manner in which the states seek to protect the privacy and safety of those using such state-owned facilities. Certainly nothing in the Constitution authorizes any arm of the federal government to impose regulations governing access to such facilities on the basis of “gender identity”—a concept unknown to those who wrote and ratified the relevant provisions of the federal Constitution.
107. The Act, by contrast, seeks to vindicate the right to sexual and reproductive privacy protected by the Fifth and Fourteenth Amendments, as well as the right of parents to direct the upbringing of their children, also protected by the Fifth and Fourteenth Amendments. And the Act does so in a manner that is well within the States’ traditional police power.
108. Because the federal government lacks the constitutional authority to regulate North Carolina’s (and the other States’) efforts to protect the privacy and safety of those who use state-owned bath, locker room and shower facilities, the Department’s attempt to impose the “access” requirement at issue here represents a usurpation of the States’ authority over such facilities.
109. Relatedly, the Constitution’s federalism guarantees constrain the federal government’s ability to place conditions on the States’ receipt of federal funds through legislation under the Spending Clause of Article I. The federal government must make its conditions on receipt of federal funds clear and
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unambiguous, so that States may make an informed decision about whether to accept the funds and the resulting diminution in their sovereign authority. Furthermore, the federal government may not attach conditions to the receipt or retention of federal funding that effective coerce the States into accepting the conditions.
110. Based on those settled principles, the Department’s attempt to impose novel and unforeseeable interpretations of Title IX and VAWA on North Carolina constitutes a violation of the Spending Clause and the Tenth Amendment. When North Carolina officials and agencies accepted the conditions originally attached to federal funding under those statutes, they could not have foreseen the radical change in those conditions represented by the Department’s recent determination letters. Furthermore, by deeming North Carolina in violation of its novel reinterpretation of Title IX and VAWA, the Department has attempted to coerce North Carolina into complying with the Department’s illegal demand, in violation of the Tenth Amendment.
111. For all these reasons, the Department’s determination that North Carolina and its officials must grant “access to sex-segregated restrooms and other [similar] facilities consistent with gender identity” is both “contrary to law” and “arbitrary and capricious” within the meaning of the APA. Furthermore, the Department violated the APA and the due process rights of the plaintiffs and the State by reaching its determination without any advance notice or opportunity to be heard.
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 PRAYER FOR RELIEF
For the foregoing reasons, the plaintiffs respectfully ask the Court to enter a final judgment in plaintiffs’ favor declaring plaintiffs’ rights as follows:
a) A final judgment declaring that the Act does not facially violate Title VII; b) A final judgment declaring that the Act does not facially violate Title IX; c) A final judgment declaring that the Act does not facially violate VAWA; d) A final judgment declaring that the Department’s attempt to enforce its
erroneous interpretation of those federal statutes against North Carolina violates the separation of powers required by the United States Constitution; e) A final judgment declaring that the Department’s attempt to enforce its erroneous interpretation of those federal statutes against North Carolina violates the Tenth Amendment to and other federalism provisions in the United States Constitution; f) A final judgment declaring that the Department’s attempt to enforce its erroneous interpretation of those federal statutes against North Carolina violates section 706 of the Administrative Procedure Act; g) An award of attorneys’ fees and costs; h) Any other relief to which plaintiffs are entitled.
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 Respectfully submitted,

By: /s/ S. Kyle Duncan S. KYLE DUNCAN* GENE C. SCHAERR* SCHAERR | DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202-787-1060 E-mail: kduncan@schaerr-duncan.com DC Bar No. 1010452 E-mail: gschaerr@schaerr-duncan.com DC Bar No. 416638 Attorneys for Plaintiffs

By: /s/ Robert D. Potter, Jr. ROBERT D. POTTER, JR. ATTORNEY AT LAW 2820 Selwyn Avenue, #840 Charlotte, NC 28209 704-552-7742 E-mail: rdpotter@rdpotterlaw.com NC Bar No. 17553 Local Civil Rule 83.1 Counsel for Plaintiffs

*Appearing Pursuant to Local Civil Rule 83.1; notice of appearance to be filed

May 9, 2016

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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

PHIL BERGER, in his official capacity as )

President pro tempore of the North

)

Carolina Senate, and TIM MOORE, in his )

official capacity as Speaker of the North )

Carolina House of Representatives,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

JUSTICE; LORETTA E. LYNCH, in her )

official capacity as Attorney General of the )

United States; and VANITA GUPTA, in )

her official capacity as Principal Deputy )

Assistant Attorney General,

)

)

Defendants.

)

NO. 5:16-CV-240-FL

____________________________________

NORTH CAROLINIANS FOR

)

PRIVACY, an unincorporated nonprofit )

association,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

JUSTICE; LORETTA E. LYNCH, in her )

official capacity as United States Attorney )

General; UNITED STATES

)

DEPARTMENT OF EDUCATION; and )

JOHN B. KING, JR., in his official

)

capacity as United States Secretary of

)

Education,

)

)

Defendants.

)

NO. 5:16-CV-245-FL

ORDER Case 5:16-cv-00240-FL Document 27 Filed 06/29/16 Page 1 of 22

These cases challenging the federal government’s response to North Carolina’s restriction on use of bathrooms, shower rooms, and changing facilities come now before the court on motions to consolidate respectively filed by plaintiff Phil Berger, President pro tempore of the North Carolina Senate, and plaintiff Tim Moore, Speaker of the North Carolina House of Representatives, in case number 5:16-CV-240-FL (“Berger”) (DE 7); and plaintiff North Carolinians for Privacy (“NCFP”) in case number 5:16-CV-245-FL (“NCFP”) (DE 12), pursuant to Federal Rule of Civil Procedure 42(a). The goal of these motions is to create one omnibus case including another case also challenging purported federal overreach in the regulation of those same facilities, McCrory v. United States, 5:16-CV-238-BO (E.D.N.C. 2016) (“McCrory”). On June 21, 2016, a telephonic hearing and Rule 16 status conference was held in Berger and NCFP; counsel in McCrory also attended.
BACKGROUND A. The Ordinance and Legislative Response
On February 22, 2016, the Charlotte, North Carolina, City Council voted to approve “An Ordinance Amending Chapter 2 of the Charlotte City Code Entitled ‘Administration’, Chapter 12 Entitled ‘Human Relations’, and Chapter 22 Entitled ‘Vehicles for Hire,’” unofficially designated by the city as the “Non-Discrimination Ordinance” (the “Ordinance”). See http://charmeck.org/city/ charlotte/CityClerk/Documents/NDOrdinance.pdf (last visited June 29, 2016). As relevant here, the Ordinance added to the city’s then-existing prohibition on discrimination protections for persons discriminated against on the basis of “gender identity [or] gender expression.” Id. § 1. It also repealed certain pre-existing provisions of the Charlotte City Code allowing businesses to restrict on the basis of biological sex access to “[r]estrooms, shower rooms, bathhouses and similar facilities
2
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which are in their nature distinctly private.” Id. § 3. Thus, by its terms, the Ordinance allowed transgender persons, that is, those who identify with a sex different from their biological sex assigned at birth, to use the restroom or shower facility that corresponds with their gender identity. The Ordinance was scheduled to go into effect April 1, 2016.
Almost immediately, the Ordinance drew criticism from North Carolina Governor Pat McCrory, members of the state’s legislature, and some members of the public. Opponents argued that the Ordinance swept far more broadly than the Charlotte City Council had intended and potentially could have negative consequences. On February 23, 2016, Speaker Moore, one of the Ordinance’s opponents, vowed “to correct this radical course.” Steve Harrison & Jim Morrill, After LGBT Vote, NC House Speaker Says Lawmakers Will ‘Correct This Radical Course’, Charlotte Observer, Feb. 23, 2016, available at http:// www.charlotteobserver.com/news/ politics-government/article61932507.html (last visited June 29, 2016). On March 22, 2016, Speaker Moore and North Carolina Lieutenant Governor Dan Forest, President of the North Carolina Senate, called both houses of the legislature into special session to address the Ordinance.
Following a one-day special session, held March 23, 2016, the state legislature passed Session Law 2016-3, titled “An Act to Provide for Single-Sex Multiple Occupancy Bathroom and Changing Facilities in Schools and Public Agencies and to Create Statewide Consistency in Regulation of Employment and Public Accommodations,” commonly known either as the “Public Facilities Privacy and Security Act,” or “HB2” (the “Act”). See H.B. 2, 2016 Sess. L. 3 (N.C. 2016). Section 1 of the Act, which is the most relevant section for purposes of these lawsuits, targets directly Charlotte’s Ordinance. It requires “local boards of education” and “public accommodations” to adhere to a single sex, multiple occupancy bathroom policy, with “sex” defined
3
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as “biological” or “physical” sex as “stated on a person’s birth certificate.” See id. §§ 1.2 & 1.3; see also id. § 1.1. Other provisions of the Act preempt local government control over the minimum wage, id. § 2.1; the power of local government to condition contracts with private parties on certain conditions or employment practices inconsistent with state law, id. §§ 2.2 & 2.3; and local discrimination ordinances. See id. §§ 3.1 & 3.3. Governor McCrory signed the Act into law on the March 23, 2016, session date.1 B. Subsequent Litigation
The Act has been met both with ire and praise. On March 28, 2016, one of the groups expressing displeasure, the American Civil Liberties Union of North Carolina, filed suit in the United States District Court for the Middle District of North Carolina. See Carcaño v. McCrory, 1:16-CV-236-TDS-JEP (M.D.N.C. 2016) (“Carcaño”). Carcaño was brought, among others, on behalf of Joaquín Carcaño and Payton McGarry, persons born biologically female but who live their lives as males. As alleged, Carcaño and McGarry were diagnosed with gender dysphoria and have received hormone therapy to assist in the treatment of their medical condition.
According to the complaint, aside from hormone therapy, treatment for gender dysphoria requires use of single-sex restroom and locker room facilities consistent with one’s gender identity. Carcaño and McGarry allege that they will be damaged as a result of the Act’s biological sex restriction on state-operated bathroom and shower facilities. See Carcaño, 1:16-CV-236-TDS-JEP (DE 1, ¶¶28–33; 41; 45–53; 64–66; 72–82).
1 Thereafter, on April 12, 2016, Governor McCrory signed Executive Order 93, implementing the substantive provisions of the Act. See Executive Order No. 93: To Protect Privacy and Equality (Apr. 12, 2016), available at https:// ncgovernor.s3.amazonaws.com/s3fs-public/documents/files/McCrory%20EO%2093_0.pdf (last visited June 29, 2016).
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The Carcaño plaintiffs assert a variety of claims against Governor McCrory; Roy Cooper, the North Carolina Attorney General; the University of North Carolina; the Board of Governors of the University of North Carolina; and Louis Bissette, Jr., Chairman of the Board of Governors. As relevant here, the Carcaño plaintiffs allege that § 1 of the Act violates on its face the Fourteenth Amendment’s Equal Protection Clause. In particular, they allege that § 1 classifies people on the basis of their sex, gender identity, and transgender status, and treats transgender people different than similarly situated people who are not transgender.
In addition, Carcaño, an employee of the University of North Carolina at Chapel Hill, and McGarry, a student at the University of North Carolina at Greensboro, allege that § 1 of Act violates on its face their rights under Title IX of the Educational Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681 et seq. In particular, they allege that by limiting bathroom, changing facility, and shower facility access along the lines of biological sex, defendants have denied them benefits “on the basis of sex” 20 U.S.C. § 1681(a). The Carcaño plaintiffs also raise a number of Constitutional claims not relevant here.2 C. Determination Letters
Notwithstanding Carcaño, the state proceeded to implement the Act. Those efforts were met with hostility from the United States. For example, on April 5, 2016, the University of North Carolina, through its president, Margaret Spellings, publically indicated that the university system would comply with the Act. In reaction to that guidance, the United States Department of Education
2 For example, they allege that § 1 of the Act violates the Fourteenth Amendment’s Equal Protection Clause because it discriminates against homosexuals on the basis of sexual orientation; §§ 2 and 3 of the Act violate the Fourteenth Amendment’s Equal Protection Clause by preempting local non-discrimination ordinances; and that the Act as a whole violates the substantive aspect of the Fourteenth Amendment’s Due Process Clause by violating their fundamental rights to privacy and to refuse unwanted medical treatment.
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(“USDOE”) requested information for the purpose of determining whether the university system, a recipient of federal funds, was in compliance with Title IX and the Violence Against Women Act (the “VAWA”), 42 U.S.C. § 13701 through § 14040. Previously, the USDOE had interpreted Title IX and its associated regulations with the purpose of including transgender individuals within the statute’s reach, at least with respect to bathroom access. See generally G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., __ F.3d__, 2016 WL 1567467 (4th Cir. 2016).
On May 4, 2016, the United States Department of Justice (“USDOJ”) issued a series of three “determination letters” respectively to Governor McCrory; Secretary of the North Carolina Department of Public Safety, Frank Perry; and President Spellings. All three letters are to the same effect: § 1 of the Act violates federal law. The letter directed to Governor McCrory concludes that § 1 of the Act violates Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq, on its face. The letter to Secretary Perry likewise concludes that § 1 of the Act facially violates both Title VII and the VAWA. Finally, the letter directed toward President Spellings likewise concludes that § 1 of the Act facially violates both Title IX and the VAWA. The United States gave each recipient up to and including May 9, 2016, to “remedy” their respective violations of federal law or risk losing federal funding. D. Initiation of Litigation Following Carcaño
Coming on the heels of Carcaño are three related federal lawsuits filed May 9, 2016. One was filed in the Middle District and two were filed in this district. A fourth related case was filed in this district on the following day.
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1. McCrory At 8:31 a.m. on May 9, 2016, Governor McCrory and Secretary Perry filed McCrory in this district, assigned to another judge. See 5:16-CV-238-BO (DE 1). Named as defendants are the United States of America; the USDOJ; Loretta Lynch, in her official capacity as United States Attorney General; and Vanita Gupta, in her official capacity as Principal Deputy Assistant Attorney General. The McCrory plaintiffs seek a declaration that the state is “in compliance with Title VII” under the text of that statute. Id. (DE 1 at 8). In addition, they seek a declaration that the state is “in compliance with [the] VAWA,” which they assume “specifically includes gender identity as a protected class.” Id. (DE 1 at 8–9). 2. United States At 3:16 p.m. on May 9, 2016, the United States of America filed suit in the Middle District. See United States v. North Carolina, 1:16-CV-425-TDS-JEP (M.D.N.C. 2016) (the “United States” case). Defendants in that case are the State of North Carolina; Governor McCrory, the North Carolina Department of Public Safety; the University of North Carolina; and its Board of Governors. The United States seeks a declaration that § 1 of the Act violates Title VII, Title IX, and the VAWA. 3. Berger Also on May 9, 2006, eight minutes after United States was filed in the Middle District, and about seven hours after McCrory was filed here, Senator Berger and Speaker Moore filed Berger. Separate and apart from McCrory, Berger develops additional theories challenging the validity of the USDOJ’s interpretative position. For example, as Berger relates to Title VII, the Berger plaintiffs allege that § 1 of the Act does not discriminate on the basis of gender identity and that the term “sex” does not include gender identity. Second, they allege that the USDOJ’s interpretation
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of Title VII, even if valid in light of the statute’s text, runs afoul of Section Five of the Fourteenth Amendment, because the remedy it provides is not “congruent and proportional” relative to the discrimination it seeks to prevent. Third, the Berger plaintiffs allege that the USDOJ’s interpretation of Title VII, even if valid in light of the statute’s text, violates a number of principles related to federalism and the separation of powers, including the Commerce Clause, Spending Clause, Presentment Clause, and the Tenth Amendment. Finally, they allege that, even if § 1 of the Act violates Title VII in some instances, it cannot be facially invalid where it has at least one possible, permissible application.
Berger also raises concerns in response to the USDOJ’s interpretation of Title IX and the VAWA, also not at issue in McCrory. In the context of Title IX, the Berger plaintiffs allege that § 1 of the Act does not discriminate on the basis of gender identity and that the term “sex” does not include gender identity. Second, they allege that the USDOJ’s interpretation of Title IX, even if valid in light of the statute’s text, was promulgated in violation of the notice-and-comment rule making procedure required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., because, notwithstanding the USDOJ’s position to the contrary, the rule announced was “substantive” or “legislative,” as opposed to merely “interpretative.” 5 U.S.C. § 553. Third, the Berger plaintiffs interpose a host of Constitutional claims targeting the USDOJ’s interpretation of Title IX, including that the USDOJ’s interpretation of that statute and its regulations violates the federalism principles embodied in the Tenth Amendment; violates the Spending Clause; and requires the state to violate both its citizens’ fundamental right to bodily privacy and parents’ fundamental liberty interest in directing the education and upbringing of their children, at least with respect to matters of sexuality. Finally, at least with respect to Title IX, they allege that, under the USDOJ’s
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interpretation of Title IX, § 1 of the Act still has some permissible applications and, therefore, is not facially invalid.
In the context of the VAWA, the Berger plaintiffs similarly allege that § 1 of the Act does not violate the VAWA because it does not discriminate on the basis of gender identity, but rather on the basis of biological sex, a consideration, they submit, that clearly is permissible under the VAWA, and, in all events, that the term “sex” does not include gender identity. Second, they also allege that the USDOJ’s interpretation of the VAWA, even if valid in light of the statute’s text, is inconsistent with the APA because it is arbitrary and capricious, where the USDOJ implemented it without considering fully the consequences of that interpretation, and otherwise not in accordance with the law, where that interpretation violates the USDOJ’s own regulations, the “Prison Rape Elimination Act National Standards, ” 15 C.F.R. § 115.5 et seq. Third, the Berger plaintiffs allege that the USDOJ’s interpretation of the VAWA violates Tenth Amendment’s federalism principles, violates the Spending Clause, and requires the state to violate the Eighth Amendment rights of its inmates. Finally, they allege that § 1 of the Act, even if it violates the VAWA in some instances, does not violate the VAWA on its face, because it does not violate the VAWA in all instances.
4. NCFP One day later, on May 10, 2016, NCFP filed NCFP in this district. Like Berger, NCFP was assigned to this judge. Unlike McCory, and like Berger in part, NCFP centers on Title IX. Also like Berger, NCFP raises other, different issues for decision also not embraced by McCrory. NCFP seeks a declaration that the USDOE’s interpretation of Title IX, as adopted by the USDOJ, is inconsistent with the text of the statute and violates the APA, a federal statute, and the Constitution. First, NCFP alleges that the United States’s interpretation of Title IX runs contrary
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to the text of the relevant statute and regulations, because the term “sex” is unambiguous and may not be interpreted to include gender identity.
Second, NCFP alleges that, even if valid in light of the statute’s text, the United States’s interpretation of Title IX violates the APA where it was promulgated without observing the APA’s notice-and-comment rule making procedures. Likewise, it alleges that the United States’s interpretation of Title IX violates the APA where it is arbitrary and capricious because the USDOE, and by proxy the USDOJ, did not engage in reasoned decision making when adopting its interpretation; failed to consider potential negative consequences of mixing the biological sexes in bathrooms, shower facilities, and the like; and failed to explain appropriately its actions.
Third, NCFP alleges that the United States’s interpretation of Title IX, even if valid in light of the statute’s text, violates a federal statute and certain Constitutional provisions. In particular, NCFP alleges that the United States’s interpretation of Title IX violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., because it substantially burdens the organization’s members’ sincerely held religious beliefs regarding modesty and nudity and does not further a compelling government interest. Likewise, NCFP alleges that the United States’s interpretation of Title IX violates the organization’s members’ Fourteenth Amendment rights, including the fundamental right to privacy and the fundamental liberty interest in directing the education and upbringing of one’s child; violates the First Amendment’s Free Exercise Clause; and violates the Spending Clause.
In addition, NCFP seeks a declaration that § 1 of the Act does not violate Title IX, that § 1 of the Act does not violate the VAWA, and, in all events, the USDOJ’s interpretation of the VAWA
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exceeds the VAWA’s regulatory mandate. NCFP also requests an injunction, prohibiting the United States from stripping the state’s federal funding pending disposition of its case. E. Subsequent Litigation Developments
1. Carcaño Carcaño has progressed substantially and now presents issues concerning USDOJ’s interpretation of Title IX as it relates to that statute’s text, the procedure employed by the USDOJ in interpreting the statute, and the validity of the USDOJ’s interpretation in light of other substantive provisions of law. On May 25, 2016, the Berger plaintiffs filed a motion to intervene in Carcaño. 1:16-CV-236-TDS-JEP (DE 33). Their motion to intervene was granted June 6, 2016. Id. (DE 44). On June 9, 2016, the Berger plaintiffs answered the complaint and interposed counterclaims against the Carcaño plaintiffs. Id. (DE 54). As relevant here, the Berger plaintiffs now assert in Carcaño a claim against the Carcaño plaintiffs for a declaration that § 1 of the Act does not violate on its face the Fourteenth Amendment’s Equal Protection Clause. In addition, they request a declaration that § 1 of the Act does not violate Title IX, or, in the alternative, that the Carcaño plaintiffs’ interpretation of Title IX violates the federal Constitution. In the meantime, the Carcaño parties, including the Berger plaintiffs and Governor McCrory, nearly have completed briefing on a motion for preliminary injunction. Id. (DE 21; DE 22; DE 27; DE 55; DE 61; DE 73). That motion seeks to enjoin Governor McCrory, as well as other defendants, from enforcing § 1 of the Act.
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2. United States United States presents for decision nearly the full complement of issues presented in this district in McCrory, Berger, and NCFP. The Berger plaintiffs moved to intervene in United States on May 17, 2016. The Berger plaintiffs declared in United States in furtherance of their motion to intervene similarity of issues raised here: “[O]n the same day the [USDOJ] sued in this District, the Proposed Intervenors filed their own declaratory judgment action in the Eastern District of North Carolina, raising multiple questions of law and fact nearly identical to questions raised by the Department – questions which, moreover, are raised in the pleading accompanying this intervention.” United States, 1:16-CV-425-TDS-JEP (DE 9 at 6). Likewise, on June 28, 2016, NCFP moved to intervene in United States. Id. (DE 58). In support of its motion, NCFP attests to the similarity between NCFP and United States: “NCFP has a pending action in the Eastern District of North Carolina involving some of the same legal issues at stake in this case.” Id. (DE 59 at 6). That case also includes challenges by Governor McCrory, through the vehicle of affirmative defenses, to the USDOJ’s interpretation of Title VII, Title IX, and the VAWA in light of the text of those statutes, the procedures employed by the USDOJ in interpreting those statutes, and other substantive provisions of law. Id. (DE 32). Moreover, Governor McCrory asserts two counterclaims that are identical to his principal claims in McCrory. Id. (DE 32). United States has progressed, too, on claim for injunctive relief. On June 10, 2016, the United States parties filed a joint motion for injunctive relief, raising the time-sensitive issue of whether or not certain federal funds made available to defendants under the VAWA should be suspended, a concern implicit also in Berger and NCFP. By order entered June 23, 2016, the court granted the parties’ joint motion, holding that “while entertaining serious concerns about the
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positions taken by the parties and the court’s authority to enter an injunction under the circumstances of this case, the court finds that, in the absence of clear authority to the contrary and in light of the substantial harm that suspension of funding in question would inflict on wholly innocent third parties, the court will grant the motion preliminarily.” Id. (DE 53 at 1).
3. Related Eastern District of North Carolina Cases On May 17, 2016, the McCrory plaintiffs filed an unopposed motion to transfer their case to the Middle District. There, they pointed out that United States had been, for all intents and purposes, filed contemporaneously with McCrory. In addition, they pointed out that Carcaño, filed nearly two months earlier, raises similar issues and has been assigned to the same United States District Judge. The McCrory plaintiffs argued that a transfer to the Middle District would “greatly enhance efficiency for the parties and the public while avoiding piecemeal litigation and reducing inconvenience to the witnesses.” McCrory, 5:16-CV-238-BO (DE 10 at 6). Thereafter, on May 23, 2016, the instant motions to consolidate were filed in Berger and NCFP. Berger, 5:16-CV-240-FL (DE 7); NCFP, 5:16-CV-245-FL (DE 12). The Berger plaintiffs argue that decision on their motion seeking to consolidate should come first, before any decision on the McCrory plaintiffs’ consent motion to transfer. “[B]ecause McCrory and this case are obviously related, the proper course is first to consolidate the two cases before making any decision about whether or not to transfer them to the Middle District.” Berger, 5:16-CV-240-FL (DE 8 at 6). Grabbing hold of the “interested party” role designation in the court’s electronic case filing system (“CM/ECF”), without leave or the making of any motion to intervene, the Berger plaintiffs catapulted themselves in the McCrory case. There, they filed a motion to consolidate identical to
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the one they previously had filed in the Berger case. Id. (DE 7); McCrory, 5:16-CV-238-BO (DE 11).
The McCrory plaintiffs followed suit, adopting CM/ECF’s “interested party” label and, also without leave or the making of any motion to intervene, filed a response in Berger in support of the Berger plaintiffs’ motion to consolidate Berger with McCrory, on the condition however that any consolidation not “in any way impede[] or interfere[] with the transfer of [McCrory] to the Middle District.” Berger, 5:16-CV-240-FL (DE 13 at 2). In the Berger case, defendants’ response to the motion to consolidate was not due until on or before June 16, 2016.
On May 24, 2016, one day after the Berger plaintiffs filed their motion before this court, NCFP filed in NCFP its motion to consolidate NCFP with McCrory. NCFP, 5:16-CV-245-FL (DE 12). NCFP, like the Berger plaintiffs, put itself on the docket in the McCrory case where on May 24, 2016, as an “interested party” in CM/ECF, it filed an identical motion to consolidate NCFP and McCrory. McCrory, 5:16-CV-238-BO (DE 22).
Into the muddied case waters the Berger defendants had not yet waded. As noted, their response to the motion to consolidate in the Berger case before the undersigned was not due to be made until on or before June 16, 2016.
In the meantime, on May 23, 2016, the judge assigned to McCrory announced he would decide the “interested party” Berger plaintiffs’ motion to consolidate before addressing the McCrory plaintiffs’ consent motion to transfer. Id. (May 23, 2016, text order). On May 26, 2016, the judge assigned to McCrory stated that the final decision on consolidation rests with the judge to whom the case is assigned, announcing that consolidation of McCrory and Berger “will be allowed if permitted by the judge to whom [Berger] is currently assigned.” Id. (DE 32 at 1–2). On June 7,
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2016, as the Berger plaintiffs’ instant motion to consolidate was ripening before the undersigned,
the judge assigned to McCrory denied the McCrory plaintiff’s consent motion to transfer. McCrory,
5:16-CV-238-BO (DE 34).
On June 13, 2016, three days before the Berger defendants’ response to the Berger plaintiff’s
instant motion to consolidate was due to be filed in the above-captioned case, the judge assigned to
McCrory again suggested, by separate order, that Berger and McCrory would be consolidated.
Id. (DE 36). On June 15, 2016, two days before the NCFP defendants’ response was due in NCFP,
the undersigned set these cases before her for hearing on the motions to consolidate and for Rule 16
status conference for June 21, 2016. On June 20, 2016, one day before that hearing and conference,
the judge assigned to McCrory suggested in separate order that NCFP also would be consolidated
with McCory.3 Id. (DE 43).
3 The undersigned has waited for the separate response deadlines to expire before ruling on the instant motions to consolidate in Berger and NCFP. It appears, however, that during that time confusion has developed in the clerk’s office and among the litigants as to the status of these cases. For example, the Berger plaintiffs having entered McCory and filed there their motion to consolidate pending before the undersigned triggered discourse with the McCory plaintiffs, who responded separately on May 25, 2016. The next day, a “court only” flag prematurely was triggered by the McCrory case manager stating “Replies due by 6/13/16,” seemingly depriving the Berger defendants of their opportunity timely to respond in this case, which period did not elapse until June 16, 2016. On June 14, 2016, after suggested ruling on the motion in McCrory the day before, defendants in NCFP filed response in opposition to consolidation, wherein they misapprehended significance of suggested ruling in McCrory. There can be no consolidation of two cases assigned different judges until the judge assigned to the case to be consolidated relinquishes her authority over it. See Vorel v. Johns, No. 5:10-CT-3005-FL, 2010 WL 4735829, at *1 (E.D.N.C. Nov. 15, 2010). As the judges of this court have noted, that much should be plain. The consolidation of cases assigned to multiple judges necessarily entails the reassignment of the case to be consolidated from one judge to the other. Without orderly rules and procedures to govern consolidation, and, by proxy, reassignment, a party’s indiscriminately filed motion to consolidate might invite dereliction of the carefully constructed system used to distribute cases between the judges of a district. To make it even plainer that final decision on motions in cases assigned to me rests with me, to promote efficiencies sought after by all parties, where the nature of this litigation has been made more complex in no small part by the parties’ own strategic litigation decisions, and given the practical difficulties arising for the clerk’s office in effective case management, the court set hearing and Rule 16 status conference in these cases June 15, 2016, by telephone for June 21, 2016.
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COURT’S DISCUSSION A. Motions to Consolidate Berger and NCFP with McCrory
The court denies the instant motions to consolidate Berger and NCFP with McCrory. Granting those motions would impede the efficient administration of justice. There exists a more direct path to final resolution of the central question presented in all five actions, the validity of the Act under federal Constitutional and statutory law, which question encompasses all of the other issues raised by the McCrory plaintiffs, the Berger plaintiffs, and NCFP.
“If actions before the court involve a common question of law or fact, the court may . . . join for hearing or trial any or all matters at issue in the actions; . . . consolidate the actions; or . . . issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). In ruling on a motion to consolidate the “critical question” is whether the case presents “specific risks of prejudice and possible confusion” and, if so, the magnitude of those risks relative to the “risk of inconsistent adjudications on common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives.” Arnold v. E. Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982), reh’g granted and rev’d on other grounds, 712 F.2d 899 (4th Cir. 1983) (en banc).
In the usual case, consolidation would be warranted. The risk of inconsistent adjudication is high and the relative expense of multiple proceedings, as compared to a single proceeding, is plain. As to the risk of inconsistent adjudication, the similar substantive and procedural issues raised by McCrory, Berger, and NCFP are presented now through the vehicle of five different cases, including Carcaño and United States, assigned to three different district judges over the span of two
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districts. The very fact that these cases are presented to isolated decision makers raises beyond the speculative level the fear of inconsistent adjudications. That threat is even more real in light of the fact that each case presents a collection of substantively identical claims along side different, but related claims.
Notwithstanding the above, the court declines the parties’ invitation to consolidate either Berger or NCFP with McCrory on the unique circumstances presented. Considering only the three cases pending in this district, it is abundantly clear that the true center of gravity around which this dispute lies is presented to the undersigned, rendering consolidation with the less rigorous McCrory inappropriate.
Berger and NCFP present a more robust challenge to the United States’s interpretative position. The Berger plaintiffs and NCFP attack the USDOJ’s interpretative guidance through three avenues. First, they each raises a textual argument, alleging that the USDOJ’s interpretation is impermissible in light of Title VII, Title IX, and the VAWA’s text. Second, they each raises procedural issues, alleging that, even if the USDOJ’s interpretation of the relevant statutes is permissible under the text of those statutes, that said interpretation was promulgated in violation of the APA. Finally, they each raises a substantive, independent legal challenge to the USDOJ’s interpretative guidance. In particular, the Berger plaintiffs and NCFP all allege that the USDOJ’s interpretation of Title VII, Title IX, or the VAWA violates numerous provisions of the Constitution. The McCrory plaintiffs, by contrast, limit their challenge to the text of the relevant statute. For example, they request a declaration that the state is in compliance with the VAWA, assuming that the VAWA “specifically includes gender identity as a protected class.” McCrory, 5:16-CV-238-BO (DE 1 at 8–9). Thus, consolidation with the less rigorous McCrory is inappropriate.
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Consolidation of Berger and NCFP with McCrory also is inappropriate where it would defy the mandate of Federal Rule of Civil Procedure 1. The court must “construe[], administer[], and employ[] [the Federal Rules of Civil Procedure] . . . to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Consolidation of the cases now pending in this district falters on that goal, where it provides only temporary relief to a long-term problem. Even if the court were to consolidate these cases, there still is a risk of inconsistent and expensive parallel proceedings where similar actions remain pending in the Middle District and no party seems ready to accept a stay in any case. In fact, the Berger plaintiffs recently have confirmed that, in the absence of some kind of single-district solution, they would continue to press their position in both the Eastern and Middle Districts. See United States, 1:16-CV-425-TDS-JEP (DE 50 at 1–3). A transfer best accomplishes Rule 1’s goal. B. Court’s Sua Sponte Transfer of Berger and NCFP
Pursuant to 28 U.S.C. § 1404(a), a district court may transfer a case to any other district “where it might have been brought” if such transfer is determined in the court’s discretion to be “for the convenience of the parties and witnesses [and] in the interest of justice.” 28 U.S.C. § 1404(a). The district court may consider the possibility of transfer sua sponte. Feller v. Brock, 802 F.2d 722, 729 n.7 (4th Cir. 1986).
In exercising its discretion to transfer a case, the court is guided by a number of factors, including consideration of practical solutions of administrative efficiency that might make the proceedings easy, expeditious, and inexpensive. See Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527 (M.D.N.C. 1996). In addition, where similar law suits have been filed in multiple federal forums, the first-filed suit usually should have priority, “absent the showing of balance of
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convenience in favor of the second action.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 594–95 (4th Cir. 2004); Ellicot Mach. Corp. v. Modern Welding Co., 502 F.2d 178, 180 (4th Cir. 1974). To determine whether a case is the “first filed” the court looks to 1) the chronology of the filings, 2) the similarity of the parties, and 3) the similarity of the issues at stake. Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357, 360 (W.D.N.C. 2003); see also Allied-Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611 n.1 (4th Cir. 1982); Carbide & Carbon Chems. Corp. v. U.S. Indus. Chems., 140 F.2d 47, 49 (4th Cir. 1944).
As a threshold matter, both Berger and NCFP could have been brought in the Middle District. Pursuant to 28 U.S.C. § 1391(e), where a plaintiff sues an agency or officer of the United States, venue may be laid in any judicial district where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(e). A significant portion of the events giving rise to the claims at issue occurred in the Middle District. If the United States were to pull federal funding from schools, universities, and the prison system, among other things, the effect of that action would be felt wide, including in the Middle District. In fact, the court in that district already has addressed this issue, preliminarily, for the benefit of the State of North Carolina.
Here, the “interest of justice” favors a transfer of the Berger and NCFP cases to the Middle District. Both the “first-filed” rule and considerations of administrative efficiency counsel in favor of that result. First, Carcaño was the first-filed case and is owed a degree of deference. That case challenges § 1 of the Act under Title IX. The Title IX claim raised by the Carcaño plaintiffs is the mirror image of the Title IX claims raised by the Berger plaintiffs and NCFP. They raise common questions concerning the validity of the Act under a federal statute. In many ways, the claims presented by the Carcaño plaintiffs on the one hand, and the Berger plaintiffs and NCFP, on the
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other, are two sides of the same coin; the Constitutional and statutory claims asserted by the Berger plaintiffs and NCFP with respect to Title IX respond directly to and could be asserted in defense to the Carcaño plaintiffs’ Title IX claim.
Although the Berger plaintiffs also raise Title VII and VAWA claims, the conceptual difference between a fully and thoroughly litigated Title IX claim, as compared to a Title VII and VAWA claim is minimal because the relevant language in each statute is substantively identical; each claim likely will turn on the same or similar analysis. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (courts look to Title VII to interpret Title IX); Braden v. Piggly Wiggly, 4 F. Supp. 2d 1357 1361 (M.D. Ala. 1998) (“The legislative history also reveals that Congress intended the language of the VAWA to mirror that of Title VII.”). Thus, the structural similarity between the three cases is a persuasive basis upon which to ground a transfer.
However, the court recognizes that Carcaño is not a perfect analogue of either Berger or NCFP. In particular, Carcaño challenges the Constitutionality of the Act directly, while Berger and NCFP challenge only the USDOJ’s interpretation of several federal statutes. Even though these cases are not perfectly analogous, the totality of the circumstances suggests they should be tried together, or at least on a unified schedule before one judge. As an initial matter, § 1404 does not require a one-to-one correspondence of issues. In addition, although the issues raised in both cases certainly are unique, the court views them in their larger context. All of the issues presented between Berger, NCFP, and Carcaño bear on a common question, whether the Act survives in the face of federal law. Thus, the court considers Carcaño to be the first filed and will defer to it.
In any case, the joint administration of Berger and NCFP alongside Carcaño and United States will accrue significant administrative and financial benefits to all interested parties. As to
20
Case 5:16-cv-00240-FL Document 27 Filed 06/29/16 Page 20 of 22

administrative benefits, the litigants will receive substantial benefit of having one judge control all four cases, and with them all substantive issues related to the validity of the Act under federal Constitutional and statutory law. That will allow a single decision maker to render timely decisions and coordinate deadlines between the parties. Moreover, the public will experience a significant benefit from the joint administration of these cases. The undersigned makes no forecast on the merits of any case now pending. However, different, potentially inconsistent, decisions by different judges does no service. Such a convoluted result would leave the public in disarray and uncertain about their legal rights.
That these cases would benefit from a transfer plainly is evident. At hearing, no party expressed opposition to the court’s transfer related inquiries. Moreover, the benefits of a transfer are apparent from the parties’ positions of record. For one example, on June 23, 2016, the Berger plaintiffs filed in United States a supplemental brief indicating that they would “continue participating in [the Eastern and Middle District] proceedings unless and until they are consolidated in a single district.” United States, 1:16-CV-425-TDS-JEP (DE 50 at 1). Indeed, the Berger plaintiffs provided that, if these proceedings are to remain fragmented, they have “no choice but to protect their interests in both courts.” Id. (DE 50 at 3). For another example, NCFP similarly has evidenced its intent to proceed in both the Eastern and Middle Districts absent consolidation in a single district. Id. (DE 58). In light of the parties’ clear intent to pursue and protect their interests wherever necessary, the court concurs with the Berger plaintiffs, “judicial efficiency would be served by having [all actions in the Eastern and Middle District concerning the Act] consolidated and tried before the same tribunal.” Id. (DE 50 at 2).
21
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Berger and NCFP are transferred to the Middle District for all the reasons outlined above. A transfer will give both sides the opportunity to attack or defend the Act with a full arsenal of legal theories. Resolution of this dispute needs such an arrangement. Civil Rule 1 compels it. The public interest requires it.
CONCLUSION Based on the foregoing, the court DENIES the Berger plaintiffs’ motion to consolidate case number 5:16-CV-240-FL with case number 5:16-CV-238-BO. Berger, 5:16-CV-240-FL (DE 7). Likewise, the court DENIES NCFP’s motion to consolidate case number 5:16-CV-245-FL with case number 5:16-CV-238-BO. NCFP, 5:16-CV-245-FL (DE 12). On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16-CV-240-FL and case number 5:16-CV-245-FL to the Middle District. The clerk of court is DIRECTED immediately to transmit a certified copy of this order and associated case files to John S. Brubaker, Clerk of Court, United States District Court for the Middle District of North Carolina, and thereafter close these cases. SO ORDERED, this the 29th day of June, 2016.
_____________________________ LOUISE W. FLANAGAN United States District Judge
22
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 18BC,CLOSED
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:16−cv−00844−TDS−JEP

BERGER, et al. v. UNITED STATES DEPARTMENT OF JUSTICE, et al Assigned to: JUDGE THOMAS D. SCHROEDER Referred to: MAG/JUDGE JOI ELIZABETH PEAKE Related Cases: 1:16−cv−00236−TDS−JEP
1:16−cv−00425−TDS−JEP
1:16−cv−00845−TDS−JEP
Case in other court: North Carolina Eastern, 5:16−cv−00240 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 06/29/2016 Date Terminated: 08/04/2016 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

PHIL BERGER in his official capacity as President pro tempore of the North Carolina Senate

represented by STUART K. DUNCAN SCHAERR DUNCAN LLP 1717 K ST., NW, STE. 900 WASHINGTON, DC 20006 202−714−9492 Fax: 571−730−4429 Email: KDuncan@Schaerr−Duncan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

GENE C. SCHAERR SCHAERR DUNCAN LLP 1717 K ST., NW, STE. 900 WASHINGTON, DC 20006 202−787−1060 Email: GSchaerr@Schaerr−Duncan.com ATTORNEY TO BE NOTICED

LEAH D. MCDOWELL 2237 SHEFFIELD DRIVE JACKSON, MS 39211 601−573−2802 Email: leahDmcdowell@gmail.com ATTORNEY TO BE NOTICED

ROBERT D. POTTER , JR. ATTORNEY AT LAW 5821 FAIRVIEW RD., STE. 207 CHARLOTTE, NC 28209 704−552−7742 Fax: 704−552−9287 Email: rdpotter@bellsouth.net ATTORNEY TO BE NOTICED

Plaintiff
TIM MOORE in his official capacity as Speaker of the North Carolina House of Representatives

represented by STUART K. DUNCAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

GENE C. SCHAERR (See above for address) ATTORNEY TO BE NOTICED

LEAH D. MCDOWELL (See above for address)

Case: 1:16-cv-00844-TDS-JEP document<docnum> filed <datefiled> 1 of 11

V. Witness A. N.
Witness A. T. Witness ALAINA KUPEC
V. Defendant UNITED STATES DEPARTMENT OF JUSTICE
Defendant LORETTA E. LYNCH in her official capacity as Attorney General of the United States

ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR. (See above for address) ATTORNEY TO BE NOTICED
represented by SONYA PFEIFFER RUDOLF WIDENHOUSE & FIALKO 225 E. WORTHINGTON AVE., STE. 200 CHARLOTTE, NC 28203 704−333−9945 Fax: 704−335−0224 Email: spfeiffer@rudolfwidenhouse.com ATTORNEY TO BE NOTICED
represented by SONYA PFEIFFER (See above for address) ATTORNEY TO BE NOTICED
represented by SONYA PFEIFFER (See above for address) ATTORNEY TO BE NOTICED
represented by EMILY B. NESTLER United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 202−616−8489 Fax: 202−616−8470 Email: Emily.B.Nestler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES 310 New Bern Ave. Suite 800 Raleigh, NC 27601 919−856−4530 Email: Mike.James@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EMILY B. NESTLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:16-cv-00844-TDS-JEP document<docnum> filed <datefiled> 2 of 11

Defendant VANITA GUPTA in her official capacity as Principal Deputy Assistant Attorney General Interested Party PATRICK MCCRORY
Interested Party FRANK PERRY

represented by EMILY B. NESTLER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRENNAN TYLER BROOKS LAW OFFICE OF B. TYLER BROOKS, PLLC 4050 YELLOWFIELD WAY CARY, NC 27518 336−707−8855 Email: btb@btylerbrookslawyer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
FRANK J. GORDON MILLBERG GORDON STEWART PLLC 1101 HAYNES ST., STE. 104 RALEIGH, NC 27604 919−836−0090 Fax: 919−836−8027 Email: fgordon@mgsattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
KARL S. BOWERS , JR. BOWERS LAW OFFICE LLC POB 50549 COLUMBIA, SC 29250 803−260−4124 Email: butch@butchbowers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM W. STEWART , JR. Millberg, Gordon and Stewart, PLLC 1101 Haynes Street, Suite 104 Raleigh, NC 27604−1499 919−836−0090 Fax: 919−836−8027 Email: bstewart@mgsattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT C. STEPHENS OFFICE OF THE GENERAL COUNSEL OFFICE OF THE GOVERNOR 116 W. JONES STREET RALEIGH, NC 27699 919−814−2026 Email: bob.stephens@nc.gov ATTORNEY TO BE NOTICED
represented by

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Amicus
PROPOSED AMICI CURIAE − TEXAS, ARKANSAS, ARIZONA, WEST VIRGINIA, ALABAMA, WISCONSIN, GEORGIA, NEBRASKA, LOUISIANA, SOUTH CAROLINA, COMMONWEALTH OF KENTUCKY, BY AND THROUGH GOVERNOR MATTHEW G. BEVIN, U

KARL S. BOWERS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID A. NIMOCKS OFFICE OF THE TEXAS ATTORNEY GENERAL SPECIAL LITIGATION DIVISION 209 W. 14TH STREET 8TH FLOOR AUSTIN, TX 78701 512−936−2541 Fax: 512−936−0545 Email: austin.nimocks@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/09/2016 05/09/2016 05/10/2016 05/10/2016 05/11/2016
05/11/2016
05/11/2016 05/11/2016 05/23/2016 05/23/2016

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400, receipt number 25RGSD63) filed by Phil Berger, Tim Moore. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Financial Disclosure) (Potter, Robert) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/09/2016)
2 Notice of Appearance filed by Robert D. Potter, Jr. on behalf of All Plaintiffs. (Potter, Robert) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/09/2016)
3 Notice of Appearance filed by Stuart K. Duncan on behalf of Phil Berger, Tim Moore. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/10/2016)
4 Summonses Issued as to Vanita Gupta, Loretta E. Lynch, and United States Department of Justice. *NOTICE: Counsel shall print the attached summonses and serve with other case opening documents in accordance with Fed.R.Civ.P. 4.* (Tripp, S.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/10/2016)
Notice to Counsel regarding 3 Notice of Appearance filed by Stuart K. Duncan − The court recommends flattened pdf fillable forms, as stated in Section B(3) of the court's CM/ECF Administrative Policies and Procedures Manual. To prevent future docketing issues, it is requested that counsel flatten the document and refile it accordingly. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/11/2016)
NOTICE OF DEFICIENCY regarding Financial Disclosure Statement attached to Complaint − This document must be filed separately, utilizing the Financial Disclosure Statement filing event located in the "Other Documents" category. When refiling, counsel is reminded that Local Civil Rule 5.1 requires that all documents submitted for filing be uploaded in a text searchable format. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/11/2016)
5 Notice of Appearance filed by Stuart K. Duncan on behalf of Phil Berger, Tim Moore. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/11/2016)
6 Financial Disclosure Statement by Phil Berger, Tim Moore. (Potter, Robert) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/11/2016)
7 MOTION to Consolidate Cases filed by Phil Berger, Tim Moore. (Attachments: # 1 Text of Proposed Order) (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/23/2016)
8 Memorandum in Support regarding 7 MOTION to Consolidate Cases filed by Phil Berger, Tim Moore. (Duncan, Stuart) [Transferred from North Carolina Eastern on

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05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016
05/25/2016 05/25/2016 06/09/2016 06/15/2016
06/17/2016
06/17/2016
06/17/2016

6/29/2016.] (Entered: 05/23/2016)
9 Notice of Appearance filed by Brennan Tyler Brooks on behalf of Patrick L. McCrory. (Brooks, Brennan) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
10 Notice of Appearance filed by William W. Stewart, Jr on behalf of Patrick L. McCrory. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
11 Notice of Appearance filed by Frank J. Gordon on behalf of Patrick L. McCrory. (Gordon, Frank) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
12 Notice of Appearance for non−district counsel by Karl S. Bowers, Jr. on behalf of Patrick L. McCrory, Frank Perry. (Bowers, Karl) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
13 RESPONSE to Motion regarding 7 MOTION to Consolidate Cases filed by Patrick L. McCrory, Frank Perry. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
14 Financial Disclosure Statement by Patrick L. McCrory. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
15 Financial Disclosure Statement by Frank Perry. (Bowers, Karl) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
Notice to Counsel regarding 14 Financial Disclosure Statement and 15 Financial Disclosure Statement − Counsel is reminded of the requirement to affix a certificate of service to all filings pursuant to Fed. R. Civ. P. 5(d) and Section F(3) of the court's CM/ECF Electronic Policies and Procedures Manual. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
16 Certificate of Service filed by Patrick L. McCrory regarding 14 Financial Disclosure Statement. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
17 Certificate of Service filed by Frank Perry regarding 15 Financial Disclosure Statement. (Bowers, Karl) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/25/2016)
18 Notice of Appearance filed by Gene C. Schaerr on behalf of Phil Berger, Tim Moore. (Schaerr, Gene) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/09/2016)
**** Set Hearing − Telephonic Rule 16 Status Conference and Motion Hearing as to 7 MOTION to Consolidate Cases set for 6/21/2016 at 10:00 AM before District Judge Louise Wood Flanagan. *Counsel will be provided dial−in instructions in advance of the telephonic hearing* (Tripp, S.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/15/2016)
19 Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on Vanita Gupta on June 13, 2016., Summons Returned Executed by Certified Mail filed by Phil Berger, Tim Moore as to Vanita Gupta served on 6/13/2016, answer due 8/12/2016., SUMMONS Returned Executed by Phil Berger; Tim Moore. Vanita Gupta served on 6/13/2016, answer due 8/12/2016. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
20 Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on Loretta E. Lynch on June 13, 2016., SUMMONS Returned Executed by Phil Berger, Tim Moore. Loretta E. Lynch served on 6/13/2016, answer due 7/4/2016., Summons Returned Executed by Certified Mail filed by Phil Berger; Tim Moore as to Loretta E. Lynch served on 6/13/2016, answer due 7/4/2016. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
21 Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on United States Department of Justice on June 13, 2014., SUMMONS Returned Executed by Phil Berger, Tim Moore. United States Department of Justice served on 6/13/2016,

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06/20/2016 06/20/2016
06/20/2016 06/21/2016 06/21/2016
06/21/2016 06/29/2016
06/29/2016 06/30/2016 07/12/2016 07/13/2016

answer due 7/4/2016., Summons Returned Executed by Certified Mail filed by Phil Berger; Tim Moore as to United States Department of Justice served on 6/13/2016, answer due 7/4/2016. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
22 Notice of Appearance filed by Emily B. Nestler on behalf of All Defendants. (Nestler, Emily) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/20/2016)
NOTICE OF DEFICIENCY regarding 22 Notice of Appearance − Counsel failed to attach a certificate of service pursuant to Fed. R. Civ. P. 5(d) and Section F(3) of the Court's CM/ECF Electronic Policies and Procedures Manual. Counsel should file a separately captioned certificate of service using the appropriate event located under the Civil Events − Service of Process category. (Tripp, S.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/20/2016)
23 Certificate of Service filed by Vanita Gupta, Loretta E. Lynch, United States Department of Justice regarding 22 Notice of Appearance of Emily B. Nestler. (Nestler, Emily) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/20/2016)
24 Notice of Appearance filed by Robert C. Stephens on behalf of Patrick L. McCrory. (Stephens, Robert) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/21/2016)
25 Minute Entry for proceedings held before District Judge Louise Wood Flanagan in New Bern: Telephonic Rule 16 Status Conference and Motion Hearing as to 7 MOTION to Consolidate Cases held on 6/21/2016. Counsel present for all parties. Court hears oral argument as to motion and procedural posture of the case. Matters taken under advisement. Written order to follow. (Court Reporter − David Collier) (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/21/2016)
26 Notice of Appearance filed by Michael James on behalf of All Defendants. (James, Michael) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/21/2016)
27 ORDER denying 7 Motion to Consolidate Cases − On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16−CV−240−FL and case number 5:16−CV−245−FL to the Middle District. Signed by District Judge Louise Wood Flanagan on 6/29/2016. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/29/2016)
28 Case transferred in from District of North Carolina Eastern; Case Number 5:16−cv−00240. Original file certified copy of transfer order and docket sheet received. (Entered: 06/29/2016)
Case ASSIGNED to JUDGE THOMAS D. SCHROEDER and MAGISTRATE JUDGE JOI ELIZABETH PEAKE. Set flag for Magistrate Judge Joi Elizabeth Peake. (Coyne, Michelle) (Entered: 06/30/2016)
Telephone Conference set for 7/13/2016 at 1:00 PM before JUDGE THOMAS D. SCHROEDER. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845(Engle, Anita) (Entered: 07/12/2016)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Telephone Conference held on 7/13/2016. Participating in the call: Attorney Smith for Carca&#241o Plaintiffs, Attorney Stoughton for Plaintiff United States, Attorney Campbell for Plaintiff/Proposed Intervenor North Carolinians for Privacy, Attorney Duncan for Legislative Plaintiffs/Intervenors, Attorney Berwick for Defendant United States, Attorney Bowers for State Defendants, Attorney Francisco for UNC Defendants, Attorney Boizelle for Amici 68 Companies, Attorney Sigmon for Proposed Amici School Administrators, and Proposed Pro se Intervenor Steven−Glenn: Johnson. Written Order forthcoming. (Court Reporter Briana Nesbit.) Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/13/2016)

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07/14/2016
07/14/2016 07/15/2016 07/15/2016 07/15/2016 07/19/2016
07/22/2016

29 ORDER signed by JUDGE THOMAS D. SCHROEDER on 07/14/2016; Parties in case 1:16CV236 shall appear on Monday, August 1, at 10:00 a.m. in Courtroom 1 of the Hiram H. Ward Federal Building, Winston−Salem, North Carolina, for a hearing on the Carcano Plaintiffs' motion for preliminary injunction (Doc. 21 in 1:16CV236) and UNC defendants' motion to stay proceedings (Doc. 38 in 1:16CV236). Counsel for United States may participate in the hearing as set out. Trial on merits, etc. in United States' action to be consolidated with hearing on United States' motion for preliminary injunction (Doc. 73 in 1:16cv425). Trial in all four HB2 cases will take place in late October or early November, 2016 depending on pretrial schedule to be determined by the Magistrate Judge as set out. Parties shall file a short joint notice identifying any agreements reached and explaining their respective positions no later than 5:00 p.m. on July 22, 2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) Docket entry modified on 7/19/2016. (Powell, Gloria). (Entered: 07/14/2016)
Set Deadlines: Joint Notice due by 7/22/2016 no later than 5:00 PM. (See 86 Order in 16CV236, 93 Order in 16CV425, 29 Order in 16CV844, and 37 Order in 16CV845) Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/14/2016)
30 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/15/2016; that this matter is set for an Initial Pretrial Conference on July 22, 2016, at 1:00 p.m. in Courtroom 3 of the United States Courthouse in Winston−Salem, North Carolina. FURTHER ORDERED that the parties must file their Rule 26(f) Report(s), whether jointly or individually, by July 20, 2016, as noted herein. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/15/2016)
Set Initial Pretrial Conference: Initial Pretrial Conference set for 7/22/2016 at 1:00 PM in Winston−Salem Courtroom #3. (See 88 Order in 16CV126; 94 Order in 16CV425; 30 Order in 16CV844; 38 Order in 16CV845) Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/15/2016)
Set Rule 26(f) Report Deadline: Rule 26(f) Report (jointly or individually) due by 7/20/2016. (See 88 Order in 16CV126; 94 Order in 16CV425; 30 Order in 16CV844; 38 Order in 16CV845) Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/15/2016)
31 Transcript of Telephonic status conference held on 7/13/2016, before Judge Thomas D. Schroeder. Court Reporter Briana Nesbit, Telephone number (336)734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 8/12/2016. Redacted Transcript Deadline set for 8/22/2016. Release of Transcript Restriction set for 10/20/2016. Associated Cases: 1:16−cv−00845−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP(Nesbit, Briana) (Entered: 07/19/2016)
Minute Entry for proceedings held before MAG/JUDGE JOI ELIZABETH PEAKE: Pretrial Scheduling Conference held on 7/22/2016 in WS−3. Present at the conference were: Attorney Wilkins for Carca&#241o Plaintiffs, Attorney Stoughton for Plaintiff United States, Attorney Dalton for Plaintiff/Proposed Intervenor North Carolinians for Privacy, Attorney Duncan for Legislative Plaintiffs/Intervenors, Attorney Gardner for Defendant United States, Attorney Bowers for State Defendants, and Attorney

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07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/25/2016 07/28/2016 07/28/2016
07/29/2016
08/04/2016

Francisco for UNC Defendants. The Court sets Telephone Status Conferences for 8/19/2016, 9/2/2016, 9/16/2016 and 9/30/2016 at 10:00 AM before Judge Peake. Joint Status of Issues to be Resolved to be filed by the close of business the Wednesday before each scheduled Telephone Status Conference. If no Status Conference is necessary, Parties are to notify Case Manager. In light of Scheduling Conference, Defendant McCrory's Motion for Leave to Conduct Expedited Discovery (Doc. 52 in 1:16CV236) is moot and Motion to Intervene filed by North Carolinians for Privacy (Doc. 58 in 1:16CV425) is withdrawn. Written Order forthcoming.(Court Reporter Briana Nesbit.) Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 8/19/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 9/2/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 9/16/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 9/30/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
32 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/25/2016; that the Court adopts the Joint Rule 26(f) Report and the discovery schedule set forth above. FURTHER ORDERED that this matter is set for telephonic conferences at 10:00 am on August 19, 2016, September 2, 2016, September 16, 2016, and September 30, 2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/25/2016)
33 NOTICE of Voluntary Dismissal of case by Plaintiffs PHIL BERGER, TIM MOORE (DUNCAN, STUART) (Entered: 07/28/2016)
34 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 7/28/2016, that the Court adopts the briefing schedule set out in the Joint Notice (Doc. # 112 ) in 1:16CV425, but any issues that the parties wish to raise in these cases should still be addressed in the dispositive motions and trial briefs on the schedule set out in the July 25, 2016 Scheduling Order, so that all of the relevant issues can be addressed in November after the period of expedited discovery. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Daniel, J) (Entered: 07/28/2016)
35 Transcript of Pretrial Scheduling Conference held on 7/22/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number (336) 734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 8/22/2016. Redacted Transcript Deadline set for 9/1/2016. Release of Transcript Restriction set for 10/31/2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 07/29/2016)
36 Transcript of Preliminary Injunction held on 8/1/2016, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number (336) 734−2514.

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08/31/2016 09/06/2016 09/09/2016
10/07/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 8/29/2016. Redacted Transcript Deadline set for 9/9/2016. Release of Transcript Restriction set for 11/7/2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 08/04/2016)
38 ***FILED IN ERROR*** MOTION for Leave to File Brief as Amici Curiae by Proposed Amici Curiae − TEXAS, ARKANSAS, ARIZONA, WEST VIRGINIA, ALABAMA, WISCONSIN, GEORGIA, NEBRASKA, LOUISIANA, SOUTH CAROLINA, COMMONWEALTH OF KENTUCKY, by and through Governor Matthew G. Bevin, U. (Attachments: # 1 Supplement, # 2 Text of Proposed Order) Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(NIMOCKS, DAVID) Modified on 9/2/2016 to reflect filed in error and terminated public access. (Daniel, J) (Entered: 08/31/2016)
40 ***FILED IN ERROR*** NOTICE of Appearance by attorney LEAH D. MCDOWELL on behalf of Plaintiffs PHIL BERGER, TIM MOORE Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP(MCDOWELL, LEAH) Modified on 9/8/2016 to reflect filed in error and terminated public access. (Daniel, J) (Entered: 09/06/2016)
42 Transcript of Proceedings held on 09/02/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 10/3/2016. Redacted Transcript Deadline set for 10/14/2016. Release of Transcript Restriction set for 12/12/2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 09/09/2016)
43 Transcript of Status Conference held on 09/16/2016, before Magistrate Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 10/31/2016. Redacted Transcript Deadline set for 11/10/2016. Release of Transcript Restriction set for 1/9/2017. Associated Cases:

Case: 1:16-cv-00844-TDS-JEP document<docnum> filed <datefiled> 9 of 11

10/14/2016
10/18/2016 10/18/2016 10/24/2016 11/15/2016
12/16/2016

1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 10/07/2016)
44 Transcript of Status Conference held on 09/30/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 11/7/2016. Redacted Transcript Deadline set for 11/17/2016. Release of Transcript Restriction set for 1/17/2017. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Nesbit, Briana) (Entered: 10/14/2016)
45 ***FILED IN ERROR*** NOTICE of Appearance by attorney SONYA PFEIFFER on behalf of Witnesses A. N., A. T., Alaina Kupep. Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(PFEIFFER, SONYA) Modified on 12/16/2016 to reflect filed in error − see 12/16/2016 TEXT Order. (Daniel, J) (Entered: 10/18/2016)
46 ***FILED IN ERROR*** MOTION of Non−Party Witnesses to Join United States' Motion to Partially Quash and Modify Defendants' Subpoenas Duces Tecum and for a Protective Order by A. N., Alaina Kupec, A. T.. Responses due by 11/14/2016 Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(PFEIFFER, SONYA) Modified on 12/16/2016 to reflect filed in error and terminated motion per 12/16/2016 TEXT Order. (Daniel, J) (Entered: 10/18/2016)
47 ***FILED IN ERROR*** MOTION to Adopt (204 in 1:16−cv−00425−TDS−JEP, 204 in 1:16−cv−00425−TDS−JEP) MOTION to Quash and Modify Defendants Subpoenas Duces Tecum MOTION for Protective Order by Stephanie Paige Dula. Responses due by 11/17/2016 Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(SUSSMAN, JACOB) Modified on 12/16/2016 to reflect filed in error and terminated motion per 12/16/2016 TEXT Order. (Daniel, J) (Entered: 10/24/2016)
48 Transcript of the Telephonic Status Conference held on 11/14/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 12/9/2016. Redacted Transcript Deadline set for 12/19/2016. Release of Transcript Restriction set for 2/16/2017. Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 11/15/2016)
TEXT ORDER by JUDGE THOMAS D. SCHROEDER on 12/16/2016. On July 25, 2016, the Court consolidated cases 1:16CV236, 1:16CV425, 1:16CV844 and 1:16CV845 for discovery purposes only. Subsequent to this consolidation, Plaintiffs voluntarily dismissed case 1:16CV844 on July 28, 2016 (Doc. 33) and 1:16CV845 on

Case: 1:16-cv-00844-TDS-JEP document<docnum> filed <datefiled> 10 of 11

August 31, 2016 (Doc. 63). However, parties continue to file documents in these closed cases. Therefore, parties are directed that any future filings must be filed in the appropriate case to which it relates and parties should refrain from electing the option to "spread" the docket entry to any unrelated or closed cases. IT IS SO ORDERED. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 12/16/2016)
Case: 1:16-cv-00844-TDS-JEP document<docnum> filed <datefiled> 11 of 11

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PHIL BERGER, et al. Plaintiffs, v.
UNITED STATES DEPARTMENT OF JUSTICE, et al.,
Defendants.

Case No. 1:16-cv-00844-TDS-JEP

NOTICE OF VOLUNTARY DISMISSAL Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), the Plaintiffs in Berger v. United States Department of Justice, et al., No.1:16CV844 (“Berger”), voluntarily dismiss their action without prejudice, and state as follows. 1. Since the filing of the Berger complaint on May 9, 2016, the Defendants have not served an answer or a motion for summary judgment. 2. On July 22, 2016, the parties in Berger filed a joint notice stating that the Plaintiffs “agree to voluntarily dismiss their complaint, in view of the fact that, as intervenor-defendants, they are pursuing the same claims and relief via counter-claims in United States of America v. North Carolina, et al., No. 1:16CV425.” Doc. #106, at 2-3. The joint notice further stated that “[t]he United States reserves the right to seek dismissal of the intervenor-defendants’ counter-claims on all grounds other than on the grounds

Case 1:16-cv-00844-TDS-JEP Document 33 Filed 07/28/16 Page 1 of 3

that the counter-claims are duplicative of the claims for relief sought by the United

States.” Id. at 3.

3. Consequently, the Plaintiffs hereby voluntarily dismiss the Berger action

without prejudice.

Respectfully Submitted, this 28th day of July, 2016,

/s/ S. Kyle Duncan S. KYLE DUNCAN* GENE C. SCHAERR* SCHAERR | DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202-714-9492 571-730-4429 (fax) E-mail: kduncan@schaerr-duncan.com DC Bar No. 1010452 E-mail: gschaerr@schaerr-duncan.com DC Bar No. 416638 *appearing pursuant to Local Rule 83.1(d)

/s/ Robert D. Potter, Jr. ROBERT D. POTTER, JR. ATTORNEY AT LAW 2820 Selwyn Avenue, #840 Charlotte, NC 28209 704-552-7742 E-mail: rdpotter@rdpotterlaw.com NC Bar No. 17553

Attorneys for Plaintiffs Phil Berger and Tim Moore

2 Case 1:16-cv-00844-TDS-JEP Document 33 Filed 07/28/16 Page 2 of 3

CERTIFICATE OF SERVICE I certify that on July 28, 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notice of electronic filing to all registered parties.

Dated: July 28, 2016

/s/ S. Kyle Duncan S. KYLE DUNCAN SCHAERR | DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202-714-9492 571-730-4429 (fax) E-mail: kduncan@schaerr-duncan.com

3 Case 1:16-cv-00844-TDS-JEP Document 33 Filed 07/28/16 Page 3 of 3

 
 Case: 5:16-cv-240 As of: 10/08/2018 03:38 PM EDT 1 of 5
CLOSED
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:16−cv−00240−FL

Berger, et al. v. United States Department of Justice, et al Assigned to: District Judge Louise Wood Flanagan related Cases: 5:16−cv−00238−BO
5:16−cv−00245−FL Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 05/09/2016 Date Terminated: 06/29/2016 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Phil Berger in his official capacity as President pro tempore of the North Carolina Senate

represented by Stuart K. Duncan Schaerr Duncan LLP 1717 K street NW, Suite 900 Washington, DC 20006 202−714−9492 Email: KDuncan@Schaerr−Duncan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gene C. Schaerr Schaerr Duncan LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202−787−1060 Email: GSchaerr@Schaerr−Duncan.com ATTORNEY TO BE NOTICED

Robert D. Potter , Jr. Robert D. Potter, Jr., Attorney at Law 2820 Selwyn Avenue, #840 Charlotte, NC 28209 704−552−7742 Email: rdpotter@rdpotterlaw.com ATTORNEY TO BE NOTICED

Plaintiff
Tim Moore in his official capacity as Speaker of the North Carolina House of Representatives

represented by Stuart K. Duncan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gene C. Schaerr (See above for address) ATTORNEY TO BE NOTICED

Robert D. Potter , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Emily B. Nestler United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 202−616−8489

Case: 5:16-cv-240 As of: 10/08/2018 03:38 PM EDT 2 of 5

Fax: 202−616−8470 Email: Emily.B.Nestler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael James 310 New Bern Ave. Suite 800 Raleigh, NC 27601 919−856−4530 Email: Mike.James@usdoj.gov TERMINATED: 07/18/2016 LEAD ATTORNEY

Defendant
Loretta E. Lynch in her official capacity as Attorney General of the United States

represented by Emily B. Nestler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael James (See above for address) TERMINATED: 07/18/2016 LEAD ATTORNEY

Defendant
Vanita Gupta in her official capacity as Principal Deputy Assistant Attorney General

represented by Emily B. Nestler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael James (See above for address) TERMINATED: 07/18/2016 LEAD ATTORNEY

Interested Party Patrick L. McCrory

represented by Brennan Tyler Brooks Thomas More Law Center 24 Frank Lloyd Wright Drive Suite J 3200 P.O. Box 393 Ann Arbor, MI 48106 336−707−8855 Fax: 734−930−7160 Email: tbrooks@thomasmore.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank J. Gordon Millberg Gordon Stewart PLLC 1101 Haynes Street Suite 104 Raleigh, NC 27604−1455 (919)836−0090 Fax: (919)836−8027 Email: fgordon@mgsattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karl S. Bowers , Jr. Bowers Law Office LLC Post Office Box 50549 Columbia, SC 29250

Case: 5:16-cv-240 As of: 10/08/2018 03:38 PM EDT 3 of 5

803−753−1099 Email: butch@butchbowers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William W. Stewart , Jr. Millberg, Gordon and Stewart, PLLC 1101 Haynes Street, Suite 104 Raleigh, NC 27604−1499 919−836−0090 Fax: 919−836−8027 Email: bstewart@mgsattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert C. Stephens Office of the Governor 116 West Jones Street Raleigh, NC 27699 919−814−2027 Fax: 919−715−2366 Email: bob.stephens@nc.gov ATTORNEY TO BE NOTICED

Interested Party Frank Perry

represented by Karl S. Bowers , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/09/2016 05/09/2016 05/10/2016 05/10/2016 05/11/2016
05/11/2016
05/11/2016

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400, receipt number 25RGSD63) filed by Phil Berger, Tim Moore. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Financial Disclosure) (Potter, Robert) (Entered: 05/09/2016)
2 Notice of Appearance filed by Robert D. Potter, Jr. on behalf of All Plaintiffs. (Potter, Robert) (Entered: 05/09/2016)
3 Notice of Appearance filed by Stuart K. Duncan on behalf of Phil Berger, Tim Moore. (Duncan, Stuart) (Entered: 05/10/2016)
4 Summonses Issued as to Vanita Gupta, Loretta E. Lynch, and United States Department of Justice. *NOTICE: Counsel shall print the attached summonses and serve with other case opening documents in accordance with Fed.R.Civ.P. 4.* (Tripp, S.) (Entered: 05/10/2016)
Notice to Counsel regarding 3 Notice of Appearance filed by Stuart K. Duncan − The court recommends flattened pdf fillable forms, as stated in Section B(3) of the court's CM/ECF Administrative Policies and Procedures Manual. To prevent future docketing issues, it is requested that counsel flatten the document and refile it accordingly. (Baker, C.) (Entered: 05/11/2016)
NOTICE OF DEFICIENCY regarding Financial Disclosure Statement attached to Complaint − This document must be filed separately, utilizing the Financial Disclosure Statement filing event located in the "Other Documents" category. When refiling, counsel is reminded that Local Civil Rule 5.1 requires that all documents submitted for filing be uploaded in a text searchable format. (Baker, C.) (Entered: 05/11/2016)
5 Notice of Appearance filed by Stuart K. Duncan on behalf of Phil Berger, Tim Moore. (Duncan, Stuart) (Entered: 05/11/2016)

Case: 5:16-cv-240 As of: 10/08/2018 03:38 PM EDT 4 of 5

05/11/2016 05/23/2016 05/23/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016 05/25/2016
05/25/2016 05/25/2016 06/09/2016 06/15/2016
06/17/2016
06/17/2016
06/17/2016

6 Financial Disclosure Statement by Phil Berger, Tim Moore. (Potter, Robert) (Entered: 05/11/2016)
7 MOTION to Consolidate Cases filed by Phil Berger, Tim Moore. (Attachments: # 1 Text of Proposed Order) (Duncan, Stuart) (Entered: 05/23/2016)
8 Memorandum in Support regarding 7 MOTION to Consolidate Cases filed by Phil Berger, Tim Moore. (Duncan, Stuart) (Entered: 05/23/2016)
9 Notice of Appearance filed by Brennan Tyler Brooks on behalf of Patrick L. McCrory. (Brooks, Brennan) (Entered: 05/25/2016)
10 Notice of Appearance filed by William W. Stewart, Jr on behalf of Patrick L. McCrory. (Stewart, William) (Entered: 05/25/2016)
11 Notice of Appearance filed by Frank J. Gordon on behalf of Patrick L. McCrory. (Gordon, Frank) (Entered: 05/25/2016)
12 Notice of Appearance for non−district counsel by Karl S. Bowers, Jr. on behalf of Patrick L. McCrory, Frank Perry. (Bowers, Karl) (Entered: 05/25/2016)
13 RESPONSE to Motion regarding 7 MOTION to Consolidate Cases filed by Patrick L. McCrory, Frank Perry. (Stewart, William) (Entered: 05/25/2016)
14 Financial Disclosure Statement by Patrick L. McCrory. (Stewart, William) (Entered: 05/25/2016)
15 Financial Disclosure Statement by Frank Perry. (Bowers, Karl) (Entered: 05/25/2016)
Notice to Counsel regarding 14 Financial Disclosure Statement and 15 Financial Disclosure Statement − Counsel is reminded of the requirement to affix a certificate of service to all filings pursuant to Fed. R. Civ. P. 5(d) and Section F(3) of the court's CM/ECF Electronic Policies and Procedures Manual. (Baker, C.) (Entered: 05/25/2016)
16 Certificate of Service filed by Patrick L. McCrory regarding 14 Financial Disclosure Statement. (Stewart, William) (Entered: 05/25/2016)
17 Certificate of Service filed by Frank Perry regarding 15 Financial Disclosure Statement. (Bowers, Karl) (Entered: 05/25/2016)
18 Notice of Appearance filed by Gene C. Schaerr on behalf of Phil Berger, Tim Moore. (Schaerr, Gene) (Entered: 06/09/2016)
**** Set Hearing − Telephonic Rule 16 Status Conference and Motion Hearing as to 7 MOTION to Consolidate Cases set for 6/21/2016 at 10:00 AM before District Judge Louise Wood Flanagan. *Counsel will be provided dial−in instructions in advance of the telephonic hearing* (Tripp, S.) (Entered: 06/15/2016)
19 Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on Vanita Gupta on June 13, 2016., Summons Returned Executed by Certified Mail filed by Phil Berger, Tim Moore as to Vanita Gupta served on 6/13/2016, answer due 8/12/2016., SUMMONS Returned Executed by Phil Berger; Tim Moore. Vanita Gupta served on 6/13/2016, answer due 8/12/2016. (Duncan, Stuart) (Entered: 06/17/2016)
20 Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on Loretta E. Lynch on June 13, 2016., SUMMONS Returned Executed by Phil Berger, Tim Moore. Loretta E. Lynch served on 6/13/2016, answer due 7/4/2016., Summons Returned Executed by Certified Mail filed by Phil Berger; Tim Moore as to Loretta E. Lynch served on 6/13/2016, answer due 7/4/2016. (Duncan, Stuart) (Entered: 06/17/2016)
21 Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on United States Department of Justice on June 13, 2014., SUMMONS Returned Executed by Phil Berger, Tim Moore. United States Department of Justice served on 6/13/2016, answer due 7/4/2016., Summons Returned Executed by Certified Mail filed by Phil Berger; Tim Moore as to United States Department of Justice served on 6/13/2016, answer due 7/4/2016. (Duncan, Stuart) (Entered: 06/17/2016)

Case: 5:16-cv-240 As of: 10/08/2018 03:38 PM EDT 5 of 5

06/20/2016 06/20/2016
06/20/2016 06/21/2016 06/21/2016
06/21/2016 06/29/2016
06/30/2016 07/15/2016 07/15/2016 07/18/2016

22 Notice of Appearance filed by Emily B. Nestler on behalf of All Defendants. (Nestler, Emily) (Entered: 06/20/2016)
NOTICE OF DEFICIENCY regarding 22 Notice of Appearance − Counsel failed to attach a certificate of service pursuant to Fed. R. Civ. P. 5(d) and Section F(3) of the Court's CM/ECF Electronic Policies and Procedures Manual. Counsel should file a separately captioned certificate of service using the appropriate event located under the Civil Events − Service of Process category. (Tripp, S.) (Entered: 06/20/2016)
23 Certificate of Service filed by Vanita Gupta, Loretta E. Lynch, United States Department of Justice regarding 22 Notice of Appearance of Emily B. Nestler. (Nestler, Emily) (Entered: 06/20/2016)
24 Notice of Appearance filed by Robert C. Stephens on behalf of Patrick L. McCrory. (Stephens, Robert) (Entered: 06/21/2016)
25 Minute Entry for proceedings held before District Judge Louise Wood Flanagan in New Bern: Telephonic Rule 16 Status Conference and Motion Hearing as to 7 MOTION to Consolidate Cases held on 6/21/2016. Counsel present for all parties. Court hears oral argument as to motion and procedural posture of the case. Matters taken under advisement. Written order to follow. (Court Reporter − David Collier) (Baker, C.) (Entered: 06/21/2016)
26 Notice of Appearance filed by Michael James on behalf of All Defendants. (James, Michael) (Entered: 06/21/2016)
27 ORDER denying 7 Motion to Consolidate Cases − On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16−CV−240−FL and case number 5:16−CV−245−FL to the Middle District. Signed by District Judge Louise Wood Flanagan on 6/29/2016. (Baker, C.) (Entered: 06/29/2016)
Remark − Case transferred from North Carolina Eastern District has been opened in North Carolina Middle District as case 1:16−cv−00844, filed 06/29/2016. (Baker, C.) (Entered: 06/30/2016)
28 MOTION to Withdraw as Attorney filed by United States Department of Justice. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw) (James, Michael) (Entered: 07/15/2016)
29 Memorandum in Support regarding 28 MOTION to Withdraw as Attorney filed by United States Department of Justice. (James, Michael) (Entered: 07/15/2016)
30 ORDER granting 28 Motion to Withdraw as Attorney − Signed by District Judge Louise Wood Flanagan on 7/18/2016. (Baker, C.) (Entered: 07/18/2016)