FILED: March 27, 2020 AMENDED: March 30, 2020 AMENDED: March 31, 2020
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

___________________ No. 19

- 1614 (L) (1:19

- cv - 01103

- RDB)

___________________ MAYOR AND CITY COUNCIL OF BALTIMORE Plaintiff

- Appellee

v. ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant Secretary, Office of Population Affairs; UNITED STA TES DEPARTMENT OF HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS Defendants

- Appellants

------------------------------ OHIO; ALABAMA; ARKANSAS; INDIANA; KANSAS; LOUISIANA; NEBRASKA; OKLAHOMA; SOUTH CAROLINA; SOUTH DAKOTA; TE NNESSEE; TEXAS; UTAH; WEST VIRGINIA Amici Supporting Appellant NEW YORK, NEW YORK CITY HEALTH + HOSPITALS AND 10 LOCAL GOVERNMENTS; NATIONAL HEALTH LAW PROGRAM; ADVOCATES FOR YOUTH; AMERICAN MEDICAL STUDENT ASSOCIATION; AMERICAN SOCI ETY FOR REPRODUCTIVE MEDICINE; COMMUNITY CATALYST; THE ENDOCRINE SOCIETY; FAMILIES USA; IN OUR OWN VOICE: NATIONAL BLACK WOMEN'S REPRODUCTIVE JUSTICE AGENDA; JUVENILE LAW CENTER; THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS; NATIONAL COUNCIL OF JEWI SH WOMEN; NARAL PRO

- CHOICE AMERICA; NATIONAL ABORTION FEDERATION; NATIONAL IMMIGRATION LAW CENTER; NATIONAL INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL2 PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN'S HE ALTH NETWORK; NATIONAL WOMEN'S LAW CENTER; NORTHWEST HEALTH LAW ADVOCATES; POSITIVE WOMEN'S NETWORK

- USA; POWER TO DECIDE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICAN RABBIS; WOMEN OF REFORM JUDAISM; MEN OF REFORM JUDAISM; UNITE FOR REPRODUCTIV E & GENDER EQUITY; WHITMAN

WALKER HEALTH; WOMENHEART; YWCA OF THE USA; NATIONAL CENTER FOR LESBIAN RIGHTS; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; THE LGBT MOVEMENT ADVANCEMENT PROJECT; NATIONAL LGBTQ TASK FORCE; EQUALITY FEDERATION; SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE UNITED STATES; FAMILY EQUALITY COUNCIL; THE NATIONAL CENTER FOR TRANSGENDER EQUALITY; HIV MEDICINE ASSOCIATION; GLBTQ LEGAL ADVOCATES & DEFENDERS; LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED; THE HUMAN RIG HTS CAMPAIGN; TRANSGENDER LAW CENTER; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM; THE INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW; NATIONAL CENTER FOR YOUTH LAW; AMERICAN ACADEMY OF PEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS AND GYN ECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS; SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR MATERNAL FETAL MEDICINE Amici Supporting Appellee

___________________ No. 20

- 1215 (1:19

- cv - 01103

- RDB)

___________________ MAYOR AND CITY COUNCIL OF BALTIMORE Plaintiff

- Appellee

v. ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant Secretary, Off ice of Population Affairs; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS Defendants

- Appellants3 ___________________ O R D E R

___________________ Upon consideration of submissions in case No. 2 0

- 1215 relative to the government’s motion for a stay pending appeal of the district court’s permanent injunction, the court denies the motion. For the Court /s/ Patricia S. Connor, Clerk4 THACKER, Circuit Judge, concurring in grant of initial hearing en banc and denial of the motion to stay: My dissenting colleague and I agree on one thing

-- initial hearing en banc requires extraordinary circumstances. I am convinced this case presents an extraordinary circumstance. The final agency rule at issue here has forced Planned Parenthood, Baltimore, and numerous states to withdraw from the Title X program. The short

- term nature of pregnancy, the brief window for obtaining a legal abortion, and the imminent harm to the City of Baltimore and its residents counsel in favor of expedited, initial en banc consideration. Moreover, I firmly disagree with the suggestion that initial hearing en banc in this

case -- duly chosen by the majority of active judges

-- is anything less than a “purposeful procedure.” Infra at 7 . To the contrary, the Federal Rules and statutory law clearly provide for such a procedure. See Fed. R. App. P. 35(a) (“A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” (emphasis supplied)); 28 U.S.C. § 46 (c) (“Cases and controversies shall be heard and determined by a court or panel of not more than three judges . . . , unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular ac tive service” (emphasis supplied)). Our Local Rules similarly contemplate that rehearing or hearing en banc “is a review of the judgment or decision from which review is sought and not a review of the judgment of the panel.” 4th Cir. Local R. 35(c). And the Supreme Court has recognized that “[section] 46(c) treats ‘hearings’ and ‘rehearings’ with equality” and that5 the statute contemplates “initial hearing” en banc. W. Pac. R. Corp. v. W. Pac. R. Co. , 345 U.S. 247, 259 (1953). The disagreement between the majority of the active judges and our dissenting colleague is just that

-- a disagreement. Nothing nefarious to see here. My colleague also references a tradition of the “past fifty years” that purportedly eschewed initial en banc review. Infra at 7 . But this assertion is belied by history. Besides being fully authorized under statute, initial hearing en banc has traditionally been utilized to address the legality of nationwide executive or agency action. In fact, twice in the last three years, t he majority of active judges of this court has voted to hear an appeal en banc in the first instance. See Int’l Refugee Assistance Project v. Trump , 883 F.3d 233 (4th Cir. 2018), cert. granted, judgment vacated , 138 S. Ct. 2710 (2018); Int’l Refugee Assis tance Project v. Trump , 857 F.3d 554 (4th Cir. 2017), vacated and remanded , 138 S. Ct. 353 (2017). Moreover, the mechanism of initial hearing en banc is not absent from this court’s history. Indeed, my dissenting colleague cites to the concurrence in the denial of initial hearing en banc in Belk v. Charlotte

- Mecklenburg Board of Education , 211 F.3d 853 (4th Cir. 2000). But of note, in the same case, dissenting in the denial of an initial hearing en banc, Judge Luttig observed, “Our court has with some fr equency considered cases en banc initially, as contemplated and authorized by statute.” Belk , 211 F.3d at 861 (Luttig, J., dissenting in the denial of an initial hearing en banc) (noting “that five prior published opinions in [a precursor case] have all b een initially decided by our court en banc”). And if we were to go back further, we find additional examples. See, e.g. , Meadows v. Holland , 831 F.2d 493, 494 (4th Cir. 1987) (initial hearing en banc), vacated on other6 grounds , 489 U.S. 1049 (1989). The en banc court has even heard matters after a panel hearing but before an opinion was filed. See Cochran v. Morris , 73 F.3d 1310, 1315 (4th Cir. 1996) (en banc) (“[A] panel of this court heard argument. While the case was under submission, a majority of the court voted to hear it en banc.”); Thomasson v. Perry , 80 F.3d 915, 921 (4th Cir. 1996) (en banc) (same); Wright v. Nat’l Archives & Records Serv. , 609 F.2d 702, 706 n.3 (4th Cir. 1979) (en banc) (“This appeal was originally heard on April 5, 1978 by a panel of the Court. Before any panel opinion was filed, rehearing en banc was ordered.”); Hirschknop v. Snead , 594 F.2d 356, 361 n.* (4th Cir. 1979) (en banc) (noting the Court ordered rehearing en banc after an opinion was circulated but before it was f iled);
Hirst v. Comm’r , 572 F.2d 427, 428 (4th Cir. 1978) (en banc) (per curiam) (same). Therefore, because the majority ruling here is far from a “sharp break with settled practice,” infra at 7 , I find my colleague’s concerns to be of no moment, and I concur in the grant of initial hearing en banc, and the denial of the motion to stay.7 RICHARDSON, Circuit Judge, dissenting from the order denying the motion to stay: In a sharp break with settled practice, our Court invokes the once

- extraordinary mechanism of initial

- en - banc review to circumvent our conventional three

- judge panel process. We used to place great value in entrusting a panel of our colleagues with first adjudicating the appeal. Doing so not only fostered collegiality but reflected the value of deciding even controversial matters with adherence to a purposeful procedure. We departed from this procedure in only the rarest of extraordinary circumstances. See Belk v. Charlotte

- Mecklenburg Bd. of Educ. , 211 F.3d 853 (4th Cir. 2000) (Wi lkinson, C.J., concurring in the denial of an initial hearing en banc). For the past fifty years, we followed this practice through varied administrations and court compositions. Times have changed. After taking the case from the assigned panel, the en banc Court then denies the government’s motion for a stay of the district court’s order. That order enjoined an agency rule that amended regulations governing federal grants for preconception family

- planning programs. The agency’s amendments essentially returned those regulations to the version that the Supreme Court blessed in Rust v. Sullivan , 500 U.S. 173 (1991). Even so, the district court found some of the rule’s provisions to be “arbitrary and capricious.” Having found some provisions improper, t he court enjoined enforcement of the entire rule. And it did so for the whole State of Maryland , even though only the City of Baltimore sued. I would grant the motion for a stay, particularly as the district court’s injunction applies to provisions never held to be unlawful and is geographically broader than necessary.