Appeal: 16-1989 Doc: 84 Filed: 11/09/2016 No. 16-1989 In the United States Court of Appeals for the Fourth Circuit JOAQUÌN CARCAÑO; PAYTON GREY MCGARRY; H.S., by her next friend and mother, Kathryn Schaefer; AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Plaintiffs Appellants, and ANGELA GILMORE, v. Plaintiff, PATRICK L. MCCRORY, in his official capacity, Governor of North Carolina, Defendant Appellee, REPRESENTATIVE TIM MOORE; SENATOR PHILIP E. BERGER, Intervenors/Defendants Appellees, and UNIVERSITY OF NORTH CAROLINA, Defendant On Interlocutory Appeal from the United States District Court For the Middle District of North Carolina at Winston-Salem No. 1:16-cv-00236-TDS-JEP APPELLEES MOTION TO HOLD APPEAL IN ABEYANCE PENDING THE SUPREME COURT S DECISION IN GLOUCESTER COUNTY SCHOOL BOARD V. G.G. Counsel listed on following page
Robert C. Stephens General Counsel OFFICE OF THE GOVERNOR OF NORTH CAROLINA 20301 Mail Service Center Raleigh, NC 27699 (919) 814-2027 bob.stephens@nc.gov Karl S. Bowers, Jr. BOWERS LAW OFFICE LLC P.O. Box 50549 Columbia, SC 29250 (803) 260-4124 butch@butchbowers.com William W. Stewart, Jr. Frank J. Gordon B. Tyler Brooks MILLBERG GORDON STEWART PLLC 1101 Haynes Street, Suite 104 Raleigh, NC 27604 (919) 836-0090 bstewart@mgsattorneys.com fgordon@mgsattorneys.com tbrooks@mgsattorneys.com Robert N. Driscoll McGLINCHEY STAFFORD 1275 Pennsylvania Avenue NW Suite 420 Washington, DC 20004 (202) 802-9950 rdriscoll@mcglinchey.com Counsel for Appellee Governor Patrick L. McCrory S. Kyle Duncan Gene C. Schaerr SCHAERR DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 kduncan@schaerr-duncan.com Robert D. Potter, Jr. 2820 Selwyn Avenue, #840 Charlotte, NC 28209 (704) 552-7742 rdpotter@rdpotterlaw.com Counsel for Appellees Senator Philip Berger and Representative Tim Moore ii
Pursuant to Fourth Circuit Rule 12(d), Appellees Patrick McCrory, Tim Moore, and Philip Berger respectfully move to hold this appeal in abeyance pending the Supreme Court s decision in Gloucester County School Board v. G.G., 822 F.3d 709 (4th Cir. 2016), cert. granted in part, 2016 WL 4565643 (U.S. Oct. 28, 2016) (No. 16-273) ( G.G. ). Pursuant to Fourth Circuit Rule 27(a), Appellants counsel have been informed of the intended filing of this motion and intend to file a response in opposition. BACKGROUND This interlocutory appeal arises from Appellants challenge to North Carolina s Public Facilities Privacy and Security Act, N.C. Sess. Laws 3 (the Act or HB2 ), enacted on March 23, 2016. Part I of the Act requires public schools and agencies to designate use of multipleoccupancy restrooms, changing facilities, and showers according to a person s biological sex, while allowing single-occupancy facilities as an accommodation. HB2 1.2, 1.3. On March 28, 2016, Appellants filed suit in the Middle District of North Carolina challenging the Act under Title IX of the Educational Amendments of 1972 and under the federal Equal Protection and Due
Process Clauses. On May 16, 2016, they moved for a preliminary injunction as to part I only, based on their Title IX, equal protection, and due process claims. On August 26, 2016, the district court granted Appellants request in part and denied it in part. Specifically, the court (1) granted a preliminary injunction on the Title IX claim limited to the individual plaintiffs and the University of North Carolina (UNC), Order at 45-46 & n.29, 81-82, but (2) denied a broader preliminary injunction on their equal protection claim, id. at 60, 82. As to the due process claims, however, the district court reserve[d] ruling at this time in order to give the parties an opportunity to submit additional briefing. Id. at 68, 70. 1 On October 18, 2016, Appellees moved to dismiss this appeal for lack of jurisdiction or, in the alternative, to hold it in abeyance pending the district court s ruling on their due process claims. ECF No. 44-1. On October 28, 2016, the Supreme Court granted certiorari to review this Court s G.G. decision, which involves a Title IX challenge to a school district policy requiring use of restrooms and locker rooms according to 1 Under an agreed extension of the briefing schedule, Appellants submitted their supplemental brief on September 30, 2016; Appellees submitted theirs on October 28, 2016; Appellants reply brief is due on November 11, 2016. 2
biological sex. 822 F.3d at 716. The Supreme Court agreed to consider two questions: (1) whether this Court properly applied the deference doctrine of Auer v. Robbins, 519 U.S. 452 (1997), to a Department of Education opinion letter regarding applicability of Title IX to gender identity discrimination, and (2) regardless of Auer deference, whether Title IX and its implementing regulation encompass gender identity discrimination. See G.G., 2016 WL 4565643 (granting certiorari as to questions 2 and 3 of the petition). ARGUMENT This Court may, either on its own motion or upon request, place a case in abeyance pending disposition of matters before this Court or other courts which may affect the ultimate resolution of an appeal. 4th Cir. R. 12(d). For the following reasons, the Court should place this appeal in abeyance until the Supreme Court decides G.G. 1. Appellants own arguments below and in this Court plainly show that the Supreme Court s resolution of G.G. may affect the ultimate resolution of [this] appeal. Id. For instance, in their preliminary injunction motion Appellants contended that the G.G. decision controls both their Title IX and equal 3
protection claims. See PI Mot. at 18 (arguing that G.G. also governs this Court s analysis under the Equal Protection Clause ); id. at 17 (arguing that, [f]or the same reason that barring a transgender individual from restrooms that accord with the individual s gender identity violates Title IX under G.G., such sex-based discrimination also triggers heightened equal protection scrutiny ). Similarly, Appellants opening brief in this Court relies on G.G. s holding to argue for heightened equal protection scrutiny and argues that G.G. illustrates how HB2 allegedly inflicts a targeted harm solely on transgender individuals. Appellants Br. at 28, 21. Moreover, Appellants equal protection arguments explore whether sex under the Fourteenth Amendment includes gender identity discrimination, id., e.g., at 4-5, 11-12, 34-37, a matter this Court s G.G. decision explored for purposes of both federal statutory and constitutional law. See G.G., 822 F.3d at 720-24; id. at 727-28 (Davis, J., concurring). Indeed, Appellants now argue to this Court that G.G. s holding virtually compels the conclusion that the exclusion of a transgender individual from a facility matching his gender identity discriminates on the basis of sex under both Title IX and the Equal 4
Protection Clause. Appellants Br. at 28. And while Appellants make the incorrect argument that a robust body of case law holds that gender identity discrimination is necessarily discrimination because of sex, the only Fourth Circuit case they cite for that proposition is G.G. Id. at 34. Of course, Appellees disagree with all of these points: neither Title IX nor the Equal Protection Clause encompasses discrimination on the basis of gender identity as opposed to sex, and in any event, how Title IX may apply to these questions does not dictate how the Equal Protection Clause applies to them. Yet Appellants own arguments below and in this Court plainly indicate that going forward with this appeal would be pointless until the Supreme Court decides G.G. 2. Consequently, even assuming this Court has jurisdiction over this appeal (which it does not), 2 the Court should at a minimum hold 2 Before the certiorari grant in G.G., Appellees had already asked the Court to hold this appeal in abeyance until the district court ruled on Appellants due process claims. EC 44-1 at 8. After certiorari was granted, Appellees submitted a Rule 28(j) letter requesting that the appeal be held in abeyance pending the Supreme Court s decision in G.G. next June. ECF No. 76-1. In their response, Appellants claimed Appellees must file an appropriate motion if the appeal is to be held pending G.G. ECF No. 80. That is incorrect: Appellees made the requisite request through their 28j letter and, in any event, this Court could place this appeal in abeyance on its own motion. 4th Cir. R. 12(d). Appellees file this separate motion merely to emphasize the obvious arguments for holding the appeal pending G.G. 5
the appeal in abeyance pending the Supreme Court s decision in G.G. next June. See, e.g., Fehlhaber v. North Carolina, 675 F.2d 1365 (4th Cir. 1982) (holding appeal in abeyance from ruling on constitutionality of state pornography statute pending Supreme Court resolution of appeal regarding similar statute from another state); Hickey v. Baxter, No. 87-2028, 1987 U.S. App. LEXIS 19080, at *3 (4th Cir. Nov. 19, 1987) (observing a district court may stay proceedings while awaiting guidance from a higher court, including the Supreme Court, in a case that could decide relevant issues ) (emphasis added). Doing so will promote economy of time and effort for itself, for counsel, and for litigants, Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), as well as avoid duplicative litigation. Great American Ins. Co. v. Gross, 468 F.3d 199, 206 (4th Cir. 2006) (citing Kerotest Mfg. Co. v. C- O-Two Fire Equip. Co., 342 U.S. 180 (1952)). If briefing goes forward now, it will only have to be revised likely substantially in light of whatever the Supreme Court says in G.G. Moreover, going forward with oral argument would also be a waste of the Court s and the parties resources: argument in this appeal is tentatively scheduled for late January, which is before G.G. would even have been argued in the 6
Supreme Court and months before any eventual decision. Finally, holding this appeal will also afford the district court time to rule on Appellants still pending due process claims, which will in turn allow the ruling on those claims to be included in any eventual appeal. See ECF No. 44-1 at 8 (urging Court to hold appeal in abeyance pending due process ruling). CONCLUSION Appellees respectfully ask the Court to hold this appeal in abeyance pending issuance of the Supreme Court s G.G. decision. Respectfully submitted, Robert C. Stephens General Counsel OFFICE OF THE GOVERNOR OF NORTH CAROLINA 20301 Mail Service Center Raleigh, NC 27699 (919) 814-2027 bob.stephens@nc.gov /s/ Karl S. Bowers, Jr. Karl S. Bowers, Jr. BOWERS LAW OFFICE LLC P.O. Box 50549 Columbia, SC 29250 (803) 260-4124 butch@butchbowers.com William W. Stewart, Jr. /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 kduncan@schaerr-duncan.com Robert D. Potter, Jr. 2820 Selwyn Avenue, #840 Charlotte, NC 28209 (704) 552-7742 rdpotter@rdpotterlaw.com Counsel for Appellees Senator Philip Berger and Representative Tim Moore 7
Frank J. Gordon B. Tyler Brooks MILLBERG GORDON STEWART PLLC 1101 Haynes Street, Suite 104 Raleigh, NC 27604 (919) 836-0090 bstewart@mgsattorneys.com fgordon@mgsattorneys.com tbrooks@mgsattorneys.com Robert N. Driscoll McGLINCHEY STAFFORD 1275 Pennsylvania Avenue NW Suite 420 Washington, DC 20004 (202) 802-9950 rdriscoll@mcglinchey.com Counsel for Appellee Governor Patrick L. McCrory 8
CERTIFICATE OF SERVICE I hereby certify that on November 9, 2016, I filed the foregoing document through the Court s CM/ECF system, which will serve an electronic copy on all registered counsel of record. /s/ S. Kyle Duncan S. Kyle Duncan SCHAERR DUNCAN LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 714-9492 kduncan@schaerr-duncan.com Counsel for Appellees Senator Philip Berger and Representative Tim Moore 9