UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARIANA PALACIOS , Plaintiff,

v. MEDSTAR HEALTH, INC. et al. , Defendants. Case No. 17-cv-0867 (CRC)

OPINION AND ORDER Ariana Palacios brought suit agai nst MedStar Hea lth and MedStar Georgetown Medical Center, Inc. alleging discrimi nation based on her gender identi ty after the hospital’s Department of Plastic Surgery purportedly refused to provide her gender-af firming breast augmentation surgery. After the parties faile d to reach an agreement in med iation, Palacios filed a motion seeking to amend her complaint to add additional claims related to a consultation she had with a MedStar Georgetown doctor regar ding a different procedure, voca l feminization surgery. MedStar has opposed her motion. Based on the arguments present ed by the partie s in their briefing and at the hearing, the Court will allow Palacios to a mend her federal Affordable Care Act claim but will deny leave to amend her D.C. Human Rights Ac t claim.

I. Background According to her complaint , on May 4, 2015, Ariana Palacios—a t wenty-seven year old transgender woman—telephoned the D epartment of Plastic Surgery at MedStar Georgetown Medical Center (“MedStar Georg etown”) seeking to make an appoin tment for breast augmentation surgery. Compl. ¶¶ 19–20. Palacios alleges that during the phone call, she was informed that the Department of Plastic Surgery was no longer a ccepting “trans patients.” Id. ¶ 21. A few days later, Palacios a sserts that she and a friend went to the Department of Plastic2 Surgery in person and were again i nformed that the Department w as not accepting any “trans patients.” Id. ¶ 22. Palacios claims she followed this visit up with a phone call to the office of the Chairman of the Department , during which she recounted her prior unsuccessful attempts to obtain an appointment for sur gery. Id. ¶ 23. The assistant to whom she spoke allegedly said the Department would return her call within a week, but Palacios sa ys she never received a response. Id. On August 26, 2015, Palacios filed a charge of discrimination w ith the D.C. Office of Human Rights related to her inter actions with MedStar Georgetow n’s Department of Plastic Surgery. See Defs.’ Opp’n Pl.’s Mot. Leave File Am. Compl. (“D efs.’ Opp’n) Ex. A. In it, she alleged that the Department’s ref usal to schedule her breast au gmentation surgery constituted discrimination based on gender id entity in viola tion of D.C.’s anti-discrimination laws. Id. She similarly filed an administrativ e charge of discrimination agai nst MedStar with the U.S. Department of Health and Human Ser vice’s (“HHS”) Office for Civ il Rights, asserting that the hospital’s actions violated the a nti-discrimination provision i n section 1557 of the Patient Protection and Affordable Care Act (“Affordable Care Act”) (cod ified at 42 U.S.C. § 18116). Pl.’s Mot. Leave File Am. C ompl. (“Pl.’s Mot.”) at 2. According to Palacios’s propose d amended complaint, after these charges were filed she met with MedStar Georgetown phys ician Shaum Sridharen, an otola ryngologist. Am. Compl. ¶ 32. During this meeting, Palaci os says she sought to obtain a video recording of her vocal chords to provide to a surgeon i n Boston who was scheduled to p erform voice feminization surgery on her. Id. Palacios claims that when Dr. Sridharen learned of the nature of her procedure, he refused to provi de her a copy of the video record ing. Id. ¶ 34. Palacios subsequently amended her federal administrative charge to encom pass the incident with Dr.3 Sridharen. Defs.’ Opp’n Ex. B (letter of Nov. 12, 2015). Ther e is no evidence that Palacios ever similarly amended her D.C. administrative charge. On May 10, 2017, Palacios withdrew her pending D.C. charge. 1 She then filed suit in this Court against MedStar Hea lth, Inc. and MedStar Georgetown (collectively “MedStar”). Her complaint alleges that her interactions with the MedStar George town Department of Plastic Surgery constituted discrimination on the basis of gender ident ity in violation of the D.C. Human Rights Act, D.C. Code § 2- 1402.21, and in violation of section 1557 of the Affordable Care Act, 42 U.S.C. § 18116(a). Compl. ¶¶ 30, 42. The complaint as orig inally filed did not include any allegations concerning her int eraction with Dr. Sridharen. Aft er MedStar filed its answer, the parties agreed to undergo mediation, which proved unsuccessful. On November 17, 2017, Palacios filed a motion to amend her complaint, seeking to fles h out her allegations and add claims related to the Sridhar en interaction. MedStar opposed h er motion, and the Court held a hearing on January 30, 2018. The Cour t will now grant Palacios ’s motion in part and deny it in part.

II. Legal Standard Under Federal Rule of Civil Pro cedure 15(a)(2), a plaintiff may file an amended complaint after an answer has been served only with the opposin g party’s consent or with leave of court. The Court “should freel y give leave when justice so requires.” Id. Leave may be denied in cases involving “ undue delay, bad faith or dilatory m otive on the part of the movant,

1 Palacios’s federal charge wit h HHS’s Office for Civil Rights r emains pending. In 2016, the District Court for the Northe rn District of Texas issued a nationwide preliminary injunction prohibiting HHS from enforcing the anti-discrimination provisio n of the Affordable Care Act as to allegations of gender identi ty discrimination. See Francisc an Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660, 695–96 (N.D. Tex. 2016). The existence of that i njunction makes it unlikely that her federal administrative char ge will be acted on anytime soon

.4 repeated failure to cure deficien cies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowa nce of the amendment, [an d] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). I n particular, if an amendment would not survive a motion to dismiss—such as where a claim sought to be added is b arred by the statute of limitations—amendment is futi le and should be denied. See, e.g ., James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). A defendant ha s the burden of showing why leave to file an amended compla int should be denied. See, e.g. , Smith v. Café Asia, 598 F. Supp. 2d 45, 48 (D.D.C. 2009).

III. Analysis As Palacios’s counsel clarified a t the hearing, Palacios seeks to amend both her claim under the Affordable Care Act (the “section 1557 claim”) and he r claim under the D.C. Human Rights Act (the “D.C. law claim ”). Medstar argues that leave t o amend should be denied because (1) the claims Palacios seeks to add are barred by the applicable statutes of limitations, and (2) Palacios acted wit h undue delay, bad faith, and dilator y motive in seeking to amend her complaint. See Defs.’ Opp’n at 5, 11.
A. Palacios’s section 1557 claim
1. Statute of Limitations Medstar first argues that the s ection 1557 claim that Palacios seeks to add is barred by the statute of limitations. In fact , counsel for Medstar suggested at the hearing that all of Palacios’s section 1557 claims are barred by the statute of limitations. This is so, Medstar contends, because the one-year statute of limitations governing D.C. Huma n Rights Act claims applies to Palacios’s section 1557 claims. S ee Defs.’ Opp’n at 5. Palaci os contends that the three-year statute of limitations governi ng D.C. personal injury claims ap plies instead. See Pl.’s Reply at5 2–3. Neither side is correct. The Court finds that Palacios’s section 1557 claim is actually governed by the federal four-yea r catchall statute of limitatio ns set forth in 28 U.S.C. § 1658(a) and the claim is therefore timely. Section 1557 of the Affordable Car e Act prohibits discriminatio n by “any health program or activity” on the basis of r ace, gender, age, or disability. 42 U.S.C. § 18116(a). But rather than crafting a new discrimination pr ohibition wholesale, section 15 57 borrows from four preexisting anti-discrimination statutes: T itle VI of the C ivil Rights Act of 1964, 42 U.S.C. § 2000d et seq. , which prohibits discrimination on th e basis of race; Title IX o f the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. , which prohibits discriminatio n on the basis of gender; the Ag e Discrimination Act, 42 U.S.C. § 6101 et seq. ; and Section 504 of the R ehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits di scrimination on the basis of disability. Id. The Affordable Care Act states that “[t]he enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such A ge Discrimination Act shall apply for purposes of violations” of section 1557. Id. Section 1557 d oes not, however, provide a specific statute of limitations. See id. The Court, therefore, mus t determine the appropriate s tatute of limitations to apply. While neither party raises it, the re seems to be a relatively c lear answer to this question: the four-year catchall statute of limitations. Under 28 U.S.C. § 1658(a), “[e]xcept as otherwise provided by law, a civil action a rising under an Act of Congres s enacted after [December 1990] may not be commenced later than 4 years after the cause of acti on accrues.” Section 1658(a) thus alleviates the host of pr oblems caused by the absence of a statute of limitations in a federal law and the consequent need for a federal court to determine th e most applicable state statute of limitations to borrow. See Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369, 382 (2004); H.R. Rep. No. 101-734, at 24 (1990). Priorto its enactment, courts and commentators had repeatedly6 “cal[led] upon Congress to eliminate these complex cases, that do much to consume the time and energy of judges but that do little to advance the cause of jus tice, by enacting federal limitations periods for all federal causes of actions.” Jones, 541 U.S. at 379–80 (quoting Sentry Corp. v. Harris, 802 F.2d 229, 246 (7th Cir. 1986)). Congress finally r esponded to these requests in 1990 by “creating a four-year fallbac k statute of limitations, appli cable to legislation enacted after the effective date of [section 1658(a) ], which creates a cause of a ction but is silent as to the applicable limitations peri od.” H.R. Rep. No. 101-734, at 24 ( 1990). Section 1557 is just such a piece of legislation. Palacios’s s ection 1557 claim arises under 42 U.S.C. § 18116(a), which w as enacted in 2010 as part o f the Affordable Care Act. Thus, her civil action “arises und er an Act of Congress enacted after” the December 1990 enactment date of the catch-all statute of limitations in secti on 1658(a). See Jones, 541 U.S. at 382 (holding that a cause of ac tion arises under a post-1990 Ac t of Congress “if the plaintiff’s claim against the defendant wa s made possible by a post-1990 en actment”). And because section 1557 is silent as to a s tatute of limitations, the four -year catchall statute is the appropriate one to apply to Palacios’s claim. 2 Her claim is thus timely.

2 Even if the Court were to engage in the complex exercise that section 1658(a) was enacted to avoid, it would still fi nd Palacios’s claim timely. In the absence of the catchall statute of limitations, the Court would turn to Title IX to determine a statute of limitations because section 1557 specifically directs that the “enforcement mechani sms provided for and available under” Title IX “shall apply” t o such violations of section 155 7, 42 U.S.C. § 18116(a). See Briscoe v. Health Care Service Corp., 2017 WL 5989727, at *9 (N .D. Ill. Dec. 4, 2017) (applying Title IX standards t o claim of gender discrimination under section 1557). And every court of appeals to have consider ed the question has applied th e state personal in jury statute of limitations to Title IX claims. See, e.g., King-White v. Humbl e Independent School Dis., 803 F.3d 754, 759 (5th Cir. 2015) (compiling cases); see also Richa rds v. Duke University, 480 F. Supp. 2d 222, 238 (D.D.C. 2007) (applying D.C.’s three-year per sonal injury statute to Title IX claim). The Court would thus appl y D.C.’s three -year statute o f limitations for personal injury claims.7 2. Undue delay, bad faith, and dilatory motive MedStar argues that even if amendment is not futile, leave to a mend should still be denied because Palacios’s failure to raise the Sridharen claims earlier “amounts to, at best, undue delay and dilatory motive, and coul d be construed as bad faith. ” Defs.’ Opp’n at 11. The Court disagrees. For one, Palacios has not exhi bited undue delay in moving to am end her complaint. She filed suit in May 2017 and formally moved to amend her complain t six months later, in November 2017. MedStar’s counsel wa s informed at the mediation session in October of Palacios’s intent to file an ame nded complaint and was provided a copy of that complaint. Given the parties’ attempt at media tion—which they agreed to undergo about two months after the complaint was filed—it makes se nse that Palacios would wait unt il mediation proved unsuccessful to file her motion f or leave to amend, and she act ed promptly thereafter. A delay of six months is hardly an eternit y in the lifespan of a civil law suit. Nor is MedStar prejudiced by the delay between the initial fili ng of the complaint and the motion to amend: discovery here has not yet begun, nor has the Court confronted any dispositive motions. This is not a case whe re a plaintiff has waited years , until discovery has concluded or the eve of trial arrives or the Court grants a defendant’s disp ositive motion, to suddenly move to amend the complaint. Cf. Williamsburg Wax Museum, Inc. v. Hist oric Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987) (affirming de nial of motion to amend filed “years after [plaintiff] had filed its original complaint, a fter the parties had conducted e xtensive discovery, and after the district court had granted a summ ary judgment motion against” t he plaintiff). A six-month delay is not undue given this case’s pro cedural history and status.8 Nor has MedStar met its burde n of showing bad faith. See Sherr od v. McHugh, 249 F. Supp. 3d 85, 87 (D.D.C. 2017) (“Preven ting a party from amendin g her complaint on the basis of bad faith generally requires a n affirmative showing by the nonm oving party.”). Palacios explained that her current couns el—Kilpatrick Townsend & Stockt on—was not the same counsel that handled her admi nistrative appeals in 2015 and 201 6—Whitman Walker Health Legal Services. Pl.’s Mot. at 3. Her current counsel represen ted that it prepared the original complaint and then learned of t he Sridharen claims in August 20 17, in a meeting with Palacios to prepare for the parties’ mediation session in October 2017. Id . at 3–4. Counsel sought leave to amend promptly after mediation f ailed. MedStar presents nothin g to counter this explanation for the delay, and any miscommunicatio n or failure to meet with Pal acios sooner, standing alone, does not show bad faith. In sum , MedStar has offered no eviden ce of bad faith here, and the sixmonth delay—particularly given the parties’ attempt at mediatio n in the interim—is not enough by itself to show bad faith, undue delay, or dilatory motive. The Court will therefore grant Palacios leave to amend her section 1557 claim.
B. Palacios’s D.C. law claim. Palacios’s counsel clarified at the hearing that she also seeks to amend her D.C. law claim. MedStar, again, contends that leave should be denied on the same grounds as for her section 1557 claim. Because MedStar is correct that Palacios’s claim concerning Dr. Sridharen would be barred by the applicable D .C. statute of limitations, amendment would be futile. Palacios’s motion will therefor e be denied as to this claim. Palacios’s D.C. law claim has a clear statute of limitations: D .C. law provides that claims arising under the D.C. Human Ri ghts Act must be filed within on e year of the alleged discriminatory act. D.C. Code § 2-1403.16(a). Because the eve nts at issue occurred before9 November 20, 2015, Palacios would ha ve needed to file suit befo re November 20, 2016 to preserve her D.C. law claims. H er lawsuit was filed in May 201 7. As such, the claim she seeks to add would be barred by the statute of limitations. 3
Palacios nonetheless contends tha t the tolling provision in the D.C. statute of limitations applies and saves her claim fr om being barred. The D.C. statut e of limitations provides that “[t]he timely filing of a complai nt with the [D. C.] Office [of Human Rights] . . . shall toll the running of the statute of limitati ons while the complaint is pe nding.” D.C. Code § 2-1403.16(a). Palacios argues that the charg e she filed with the D.C. Office of Human Rights on August 26, 2015 and the charge she filed with HHS’s Office for Civil Right s in October 2015 both triggered this tolling provision. But neithe r of these administrative ch arges tolls the limitations period. First, Palacios’s D.C. charge: This charge was filed on August 26, 2015, prior to the incident with Dr. Sridharen i n November 2015. Unsurprisingly, then, it does not mention the incident with Dr. Sridharen. S ee Defs.’ Opp’n Ex. A. Nor has Palacios presented any evidence that she amended her D.C. charge to encompass the Dr. Sridharen incident or filed a separate charge regarding that claim. T he absence of any reference to t he Dr. Sridharen incident means that Palacios’s D.C. complaint doe s not toll the statute of lim itations as to the S ridharen D.C. law claim.

3 For this reason, the Court need no t address the parties’ argum ents regarding the relation back doctrine. Even if Palacios ’s amended complaint did relate back to her original complaint, that complaint was not filed with in the one-year statute of lim itations. Palacios also appears to argue tha t her complaint relates back to her original administrative charge. The Court is unaware of any precedent a llowing an amended complaint to relate back to an administrat ive charge rather than the orig inal complaint—which is unsurprising since Federal Rule of Civil Procedure 15(c) provid es for relation back to a party’s original pleading and a charge f iled with an agency is not a pl eading.10 Next, Palacios’s charge with HHS ’s Office for Civil Rights: T his charge was ultimately amended to encompass the Dr. Sridh aren incident. See Defs.’ Op p’n Ex. B. But the statute of limitations is tolled by the filing of a charge with the D.C. Office of Human Rights , not just the filing of any administrative ch arge. See D.C. Code § 2-1403.16 (a) (“The timely filing of a complaint with the Office . . . shall toll the running of t he statute of limitations whi le the complaint is pending.” (emphasis added)). 4 Because this charge was f iled with the HHS Office for Civil Rights and not the D .C Office of Civil Rights, under the plain language of the D.C. statute it does not toll the st atute of limitations. In the ab sence of any tolling, t he addition of the Sridharen allegations to Palaci os’s D.C. law claim is barred by the statute of limitations. Amendment would therefore be fu tile, so the Court will deny Pal acios leave to amend her D.C. law claim.

* * *

4 Admittedly, the filing of a charg e with the federal Equal Empl oyment Opportunity Commission (“EEOC”) w ould trigger the tolli ng provision in the D.C. statute of limitations. See, e.g., Estenos v. PAHO/WHO Federal Credit Union, 952 A.2d 8 78, 886 (D.C. 2008). This is so because of the work-sharing agreement between the D.C. Offic e of Human Rights and the EEOC, whereby any charge filed with the EEOC is automatically c ross-filed with the D.C. Office of Human Rights. See, e .g., id. As far as the Court is aware, no such similar worksharing agreement exists between HHS’s Office for Civil Rights and the D.C. Office of Civil Rights. As a result, nothing indicat es that the D.C. Office ev er received a copy of the charge filed with HHS’s Office and the re is no reason to extend the un ique treatment of EEOC charges to encompass the federal charge here.11 IV. Conclusion For the foregoing reasons, it is hereby
ORDERED that [16] Plaintiff’s Motion for Leave to File Amended Complai nt is GRANTED IN PART and DENIED IN P ART. Plaintiff will be granted leave to amend her federal claim under the Affordable Care Act but will be denied leave to amend her D.C. law claim under the D.C. Human Rights Act. The Court will issue a separate discovery scheduling order.
SO ORDERED

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CHRISTOPHER R. COOPER United States District Judge Date: February 20, 2018