Case: United States v. State of North Carolina

1:16-cv-00425 | U.S. District Court for the Middle District of North Carolina

Filed Date: May 9, 2016

Closed Date: April 14, 2017

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Case Summary

This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (HB2), which was passed on March 23, 2016. For the others, see the case collection. On February 22, 2016, the Charlotte City Council passed Ordinance 7056, which prohibited discrimination on the basis of sexual orientation or gender identity in public accommodations, passenger vehicle for hire, and city contractors. The city ordinance was set to take effect on April 1, 2016. In response, on March …

This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (HB2), which was passed on March 23, 2016. For the others, see the case collection.

On February 22, 2016, the Charlotte City Council passed Ordinance 7056, which prohibited discrimination on the basis of sexual orientation or gender identity in public accommodations, passenger vehicle for hire, and city contractors. The city ordinance was set to take effect on April 1, 2016.

In response, on March 23, 2016, the North Carolina legislature held a special session and passed House Bill 2; it was signed that same day by North Carolina Governor Pat McCrory. HB2 prohibited municipalities in North Carolina from enacting anti-discrimination policies and removed the statutory and common-law private right of action to enforce state anti-discrimination statutes in state courts. It also required that individuals only be permitted to use bathrooms and changing facilities that correspond to the sex on their birth certificates while in government buildings. For many transgender people, this prevented them from using the restroom consistent with their gender identity (in North Carolina, only people who undergo sex reassignment surgery can change the sex on their birth certificates; some other jurisdictions have even more restrictive rules). In addition, the legislation changed the definition of sex in the state's anti-discrimination law to "the physical condition of being male or female, which is stated on a person's birth certificate,” which prevented discrimination against transgender people from being classified as a type of sex discrimination.

On May 4, in a letter to Governor Pat McCrory, the Justice Department informed him that the U.S. had concluded that HB2 violated federal law. The DOJ asked the Governor to respond by close of business on May 9, and that he remedy the violations, "including by confirming that the State will not comply with or implement H.B. 2."

Instead of providing the demanded assurances, the Governor sued the United States on the morning of May 9, in the Eastern District of North Carolina, seeking a declaratory judgment that HB2 did not violate Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e et seq.), or the Violence Against Woman Act (42 U.S.C. § 13925(b)(13)). That case is McCrory v. United States. A few hours later, the U.S. filed this lawsuit, seeking to enjoin operation of HB2, in the U.S District Court for the Middle District of North Carolina. The DOJ sued the State of North Carolina under Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e et seq.), under Title IX of the Education Amendments Act of 1972 (20 U.S.C. §§ 1681 et seq.), and under the Violence Against Women Reauthorization Act (42 U.S.C. § 13925(b)(13)). The DOJ sought declaratory and injunctive relief. Specifically, the U.S. asked the Court to find that HB 2’s Part I—the part that instructs public agencies to deny transgender individuals access to multiple-occupancy bathrooms and changing facilities consistent with their gender identity--violated federal law, and to issue an injunction ordering the state to stop violating the federal laws in question.

North Carolina’s former Attorney General, Roy Cooper, had said that he agreed that HB2 is illegal, and declined to defend it against this and the other lawsuits challenging it.

On June 10, 2016 the United States and the Defendants issued a joint motion to enjoin automatic suspension of funds received under the Violence Against Women Act that prohibits recipients of federal funds administered by the Department of Justice’s Office on Violence Against Women (“OVW”) from engaging in discrimination based on sex and gender identity. The United States and the Defendants agreed that the suspension of funds would on balance harm the public interest. On June 23, 2016, Judge Thomas D. Schroeder granted the parties' joint motion to enjoin the United States from automatically withholding funds. 192 F.Supp.3d 620.

On June 29, 2016, Judge Thomas D. Schroeder granted Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House of Representatives, the right to permissively intervene as defendants in the case. Several other private individuals requested to intervene on either side of the case and their motions were denied.

On July 14, 2016, Judge Thomas D. Schroeder ordered that parties in the four related cases of HB2 file a short joint notice identifying any agreements reached and explaining their respective positions. On July 25, 2016, the Court consolidated this case with Carcaño v. McCrory(1:16CV236), Berger v. United States (1:16CV844), and North Carolinians for Privacy v. United States (1:16CV845) for discovery purposes only. After this consolidation, the Plaintiffs voluntarily dismissed Berger v. United States on July 28, 2016, and North Carolinians for Privacy v. United States on August 31, 2016.

On August 12, 2016, the Defendants submitted motions to stay the proceedings in light of the Supreme Court hearing the G.G. case regarding similar issues. Ten days later, the United States submitted a response in opposition to the Defendants' request to stay the proceedings. The United States stated that the Defendants were violating federal laws and that the proceedings should not be delayed in anticipation of a change in the law.

On December 16, 2016, upon the joint motion of the parties and in the interest of judicial economy, the court stayed the proceedings in the case and in the related case of Carcano v. McCrory (1:16CV236) pending disposition in the Supreme Court of Gloucester County School Board v. G.G., No. 16- 273 (S. Ct.). At the United States’ request, the court did not include the United States’ pending motion for preliminary injunction in the stay.

On January 1, 2017, Roy Cooper, who opposed HB2 as NC Attorney General, took office as Governor of North Carolina, changing the Governor’s position. On February 22, 2017, the Department of Justice and the Department of Education, under President Trump, withdrew and rescinded their earlier guidance documents, changing the federal government’s position. On March 2, 2017, the Plaintiff submitted a request to expand the stay (granted on December 16, 2016) to include the preliminary injunction request, on the grounds that the United States had withdrawn two guidance documents upon which the motion was based.

On March 28, 2017, the Plaintiff submitted a joint status report with the Carcaño Plaintiffs, UNC Defendants, Legislative Defendants, and the State Defendants. The United States aligned itself with the UNC and Legislative Defendants requesting that the court leave the stay entered on December 16, 2016, until resolution of the pending appeals in G.G. v. Gloucester County School Board (4th Cir. No. 15-2056) and Carcaño v. Cooper (4th Cir. No. 16-1989). The Carcaño Plaintiffs and the State Defendants requested that the stay be lifted so that parties could confer about a new discovery plan.

On March 30, 2017, the North Carolina Legislature, and the newly appointed Governor enacted House Bill 142 which, among other things, repealed HB2. The repeal included a compromise that left many on both sides unhappy. The compromise prevented municipalities from passing anti-discrimination laws until December 2020, and the legislature still had the ability to regulate bathrooms.

On April 14, 2017, the Plaintiff filed a notice of voluntary dismissal stating that in light of the passage of House Bill 142, the claims and causes of actions against the Defendants would be dismissed with prejudice, which closed the case.

	Document
1:16-cv-00425	Docket [PACER] U.S v. State of North Carolina	May 17, 2016	May 17, 2016 Docket
1 1:16-cv-00425	Complaint	May 9, 2016	May 9, 2016 Complaint

Title		External URL Date / External URL
Dear Colleague Letter [rescinding prior letters relating to bathroom access for trans students] Sandra Battle & T.E. Wheeler	Feb. 22, 2017	Feb. 22, 2017 https://assets.documentcloud.org/...
Examples of Policies and Emerging Practices for Supporting Transgender Students United States Department of Education	May 1, 2016	May 1, 2016 https://www2.ed.gov/...
Dear Colleague Letter on Transgender Students Catherine E. Lhamon and Vanita Gupta	May 13, 2016	May 13, 2016 https://www2.ed.gov/...

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT against PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (Related Case # 1:16-cv-236), filed by UNITED STATES OF AMERICA. (Attachments: # 1 Civil Cover Sheet)(PHOENIX, CANDYCE) (Entered: 05/09/2016)	May 9, 2016	May 9, 2016 PACER
2	COMPLAINT against All Defendants (Related Case # 1:16-cv-236), filed by UNITED STATES OF AMERICA.(PHOENIX, CANDYCE) The 1 Complaint filed on 5/9/2016 was re-filed on 5/10/2016 by counsel as Document 2 pursuant to the Notice of Corrective Action received from Clerk's Office in order to comply with Local Rule 5.3(e)(2). (Powell, Gloria). (Entered: 05/10/2016)	May 10, 2016	May 10, 2016 PACER
3	Summons Issued as to PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS. (Attachments: # 1 UNC, # 2 NC, # 3 DPS, # 4 BOG)(Coyne, Michelle) (Entered: 05/10/2016)	May 10, 2016	May 10, 2016 PACER
4	Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Attachments: # 1 Consent Form)(Coyne, Michelle) (Entered: 05/10/2016)	May 10, 2016	May 10, 2016 PACER
5	Notice of Appearance	May 11, 2016	May 11, 2016 PACER
	Case Referred to Mediation	May 11, 2016	May 11, 2016 PACER
6	(FILED IN ERROR) NOTICE of Appearance by attorney JON W. DAVIDSON on behalf of Plaintiffs AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, JOAQUIN CARCANO, ANGELA GILMORE, H.S., PAYTON GREY MCGARRY, BEVERLY NEWELL, KELLY TRENT Associated Cases: 1:16-cv-00236-TDS-JEP, 1:16-cv-00425-TDS-JEP(DAVIDSON, JON) Modified on 7/28/2016 to Reflect "Filed in Error" and Attorney Davidson removed from docket. (Powell, Gloria). (Entered: 05/13/2016)	May 13, 2016	May 13, 2016 PACER
7	SUMMONS Returned Executed by UNITED STATES OF AMERICA as to All Defendants. (PHOENIX, CANDYCE) (Entered: 05/13/2016)	May 13, 2016	May 13, 2016 PACER
8	MOTION to Intervene by Phil Berger, Tim Moore. Responses due by 6/10/2016 (Attachments: # 1 Exhibit Proposed Answer, # 2 Text of Proposed Order Proposed Order)(DUNCAN, STUART) (Entered: 05/17/2016)	May 17, 2016	May 17, 2016 PACER
9	MEMORANDUM filed by Intervenor Defendants Phil Berger, Tim Moore re 8 MOTION to Intervene filed by Phil Berger, Tim Moore. (Attachments: # 1 Exhibit Exhibit A)(DUNCAN, STUART) (Entered: 05/17/2016)	May 17, 2016	May 17, 2016 PACER
10	NOTICE of Appearance by attorney ROBERT D. POTTER, JR on behalf of Intervenor Defendants Phil Berger, Tim Moore (POTTER, ROBERT) (Entered: 05/17/2016)	May 17, 2016	May 17, 2016 PACER
11	NOTICE of Appearance by attorney STUART K. DUNCAN on behalf of Intervenor Defendants Phil Berger, Tim Moore (DUNCAN, STUART) (Entered: 05/17/2016)	May 17, 2016	May 17, 2016 PACER
12	NOTICE of Appearance by attorney CAROLYN C. PRATT on behalf of Defendants UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (PRATT, CAROLYN) (Entered: 05/25/2016)	May 25, 2016	May 25, 2016 PACER
	Motions Referred	May 25, 2016	May 25, 2016 PACER
13	CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Defendant UNIVERSITY OF NORTH CAROLINA (PRATT, CAROLYN) (Entered: 05/25/2016)	May 25, 2016	May 25, 2016 PACER
14	CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Defendant UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (PRATT, CAROLYN) (Entered: 05/25/2016)	May 25, 2016	May 25, 2016 PACER
15	First MOTION for Extension of Time to File Answer by UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS. (Attachments: # 1 Text of Proposed Order Proposed Order)(PRATT, CAROLYN) (Entered: 05/25/2016)	May 25, 2016	May 25, 2016 PACER
	Motion Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: 15 First MOTION for Extension of Time to File Answer. (Engle, Anita)	May 25, 2016	May 25, 2016 PACER
16	RETURN OF SERVICE by US Marshal's Office as to Governor Pat McCrory re: Summons/Complaint/Notice of Right to Consent served on 5/12/2016. Answer due by 6/2/2016. Modified on 5/26/2016 to reflect which defendant was served. (Daniel, J) (Entered: 05/26/2016)	May 26, 2016	May 26, 2016 PACER
17	RETURN OF SERVICE by US Marshal's Office as to University of North Carolina (c/o Thomas C. Shanahan, Senior Vice President and General Counsel) re: Summons/Complaint/Notice of Right to Consent served on 5/12/2016. Answer due by 6/2/2016. (Daniel, J) (Entered: 05/26/2016)	May 26, 2016	May 26, 2016 PACER
18	RETURN OF SERVICE by US Marshal's Office as to State of North Carolina (c/o Roy Cooper) re: Summons/Complaint/Notice of Right to Consent served on 5/12/2016. Answer due by 6/2/2016. (Daniel, J) (Entered: 05/26/2016)	May 26, 2016	May 26, 2016 PACER
19	RETURN OF SERVICE by US Marshal's Office as to Department of Public Safety (c/o Deborah L. McSwain, General Counsel) re: Summons/Complaint/Notice of Right to Consent on 5/12/2016. Answer due by 6/2/2016. (Daniel, J) (Entered: 05/26/2016)	May 26, 2016	May 26, 2016 PACER
20	RETURN OF SERVICE by US Marshal's Office as to Board of Governors of the University of North Carolina (c/o Thomas C. Shanahan) re: Summons/Complaint/Notice of Right to Consent served on 5/12/2016. Answer due by 6/2/2016. (Daniel, J) (Entered: 05/26/2016)	May 26, 2016	May 26, 2016 PACER
21	NOTICE of Appearance by attorney OLGA E. VYSOTSKAYA DE BRITO on behalf of Defendant STATE OF NORTH CAROLINA (VYSOTSKAYA DE BRITO, OLGA) (Entered: 05/27/2016)	May 27, 2016	May 27, 2016 PACER
	Motions Referred	May 27, 2016	May 27, 2016 PACER
22	Consent MOTION for Extension of Time To File Motion To Answer or Otherwise Respond 2 Complaint, until 07/18/2016, Consent MOTION for Extension of Time to File Answer re 2 Complaint, 1 Complaint, () by STATE OF NORTH CAROLINA. (Attachments: # 1 Text of Proposed Order Prop Order Extending Time)(VYSOTSKAYA DE BRITO, OLGA) (Entered: 05/27/2016)	May 27, 2016	May 27, 2016 PACER
	Motion Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: 22 Consent MOTION for Extension of Time to File Answer re 2 Complaint, 1 Complaint. (Engle, Anita)	May 27, 2016	May 27, 2016 PACER
23	NOTICE of Appearance by attorney NOEL J. FRANCISCO on behalf of Defendants UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (FRANCISCO, NOEL) (Entered: 05/27/2016)	May 27, 2016	May 27, 2016 PACER
24	NOTICE of Appearance by attorney JAMES M. BURNHAM on behalf of Defendants UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (BURNHAM, JAMES) (Entered: 05/27/2016)	May 27, 2016	May 27, 2016 PACER
25	NOTICE of Appearance by attorney AMAR MAJMUNDAR on behalf of Defendant STATE OF NORTH CAROLINA (MAJMUNDAR, AMAR) (Entered: 05/31/2016)	May 31, 2016	May 31, 2016 PACER
26	NOTICE of Appearance by attorney GLEN D. NAGER on behalf of Defendants UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (NAGER, GLEN) (Entered: 05/31/2016)	May 31, 2016	May 31, 2016 PACER
27	NOTICE of Appearance by attorney WILLIAM WOODLEY STEWART, JR on behalf of Defendants PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA (STEWART, WILLIAM) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 PACER
	Order on Motion for Extension of Time to Answer AND Order on Motion for Extension of Time to Answer	June 2, 2016	June 2, 2016 PACER
28	NOTICE of Appearance by attorney BRENNAN TYLER BROOKS on behalf of Defendants PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA (BROOKS, BRENNAN) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 PACER
29	NOTICE of Appearance by attorney FRANK J. GORDON on behalf of Defendants PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA (GORDON, FRANK) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 PACER
30	NOTICE of Appearance by attorney KARL S. BOWERS, JR on behalf of Defendants PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA (BOWERS, KARL) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 PACER
31	NOTICE of Appearance by attorney ROBERT C. STEPHENS on behalf of Defendants PATRICK MCCRORY, STATE OF NORTH CAROLINA (STEPHENS, ROBERT) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 PACER
32	ANSWER to 2 Complaint, 1 Complaint,, ANSWER to 2 Complaint, 1 Complaint,, Counterclaim against by PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA. (STEWART, WILLIAM) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 RECAP
33	NOTICE of Appearance by attorney TARYN WILGUS NULL on behalf of Counter Defendant UNITED STATES OF AMERICA, Plaintiff UNITED STATES OF AMERICA (WILGUS NULL, TARYN) (Entered: 06/02/2016)	June 2, 2016	June 2, 2016 PACER
	TEXT ORDER by MAG/JUDGE JOI ELIZABETH PEAKE on 06/2/16, granting 15 Consent Motion for Extension of Time to Answer and granting 22 Consent Motion for Extension of Time to Answer. Answer due by 7/18/2016. (Garrett, Kim)	June 2, 2016	June 2, 2016 PACER

Case: United States v. State of North Carolina

1:16-cv-00425 | U.S. District Court for the Middle District of North Carolina

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