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 STATES DEPARTMENT OF 

HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS

 Defendants - Appellants

------------------------------

OHIO; ALABAMA; ARKANSAS; INDIANA; KANSAS; LOUISIANA; NEBRASKA; 

OKLAHOMA; SOUTH CAROLINA; SOUTH DAKOTA; TENNESSEE; 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 

SOCIETY 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 JEWISH WOMEN; NARAL PRO-CHOICE AMERICA; 

NATIONAL ABORTION FEDERATION; NATIONAL IMMIGRATION LAW 

CENTER; NATIONAL INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL 

LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL 
2

PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN'S HEALTH 

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 REPRODUCTIVE & GENDER EQUITY; WHITMANWALKER 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 RIGHTS 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 

GYNECOLOGISTS; 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, Office of Population Affairs; UNITED STATES DEPARTMENT OF 

HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS

 Defendants - Appellants
3

___________________

O R D E R

___________________

Upon consideration of submissions in case No. 20-1215 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, Clerk
4

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 active 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 that 
5

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, the 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 Assistance 

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 frequency 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 been 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 other 
6

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 filed); 

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) (Wilkinson, 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, the 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.