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Case: Berger v. United States Department of Justice

4:16-cv-00240 | U.S. District Court for the Eastern District of North Carolina

Filed Date: May 9, 2016

Closed Date: July 28, 2016

Clearinghouse coding complete

Case Summary

This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (“H.B. 2”), which was passed in March 23, 2016. For the others, see related cases section, below. 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 respon…

This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (“H.B. 2”), which was passed in March 23, 2016. For the others, see related cases section, below.

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 while in government buildings, individuals only use restrooms and changing facilities that correspond to the sex on their birth certificates. 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.” This change 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 that he would 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 United States District Court for the Eastern District of North Carolina, seeking declaratory relief that HB2 didn’t violate federal law. That case is McCrory v. United States. On that same day, this suit was brought in the same court by the President Pro Tempore of the North Carolina Senate and the Speaker of the North Carolina House of Representatives. They sought the same declaratory relief sought by Governor McCrory as well as a declaration by the court that the DOJ had exceeded the federal government’s separation of powers, violated the Tenth Amendment, and was arbitrary and capricious under section 706 of the Administrative Procedure Act (5 U.S.C. §§ 702-706).

Plaintiffs made a number of constitutional arguments to support their position. They began by alleging that transgender people weren't a protected class under the Fourteenth Amendment, and thus could not be protected under Title VII, which is authorized by the Fourteenth Amendment. They based their Tenth Amendment federalism claims primarily on the argument that regulation of bathrooms didn't affect interstate commerce and were thus a police power reserved to the states. They also suggested that there was a constitutional right to privacy in bathrooms that would be violated if states were forced to allow transgender individuals access to bathrooms in accordance with their gender identities.

Plaintiffs further made arguments that the DOJ’s position wasn’t acceptable under administrative law. Plaintiffs suggested that the DOJ’s reasoning on the VAWA would require North Carolina to provide prisoners claiming transgender status access to bathrooms and showers matching their gender identities, which they claimed would violate earlier regulations promulgated by the DOJ on that subject. They also claimed that the states couldn’t have foreseen that they would be forced to allow transgender individuals access to bathrooms when Title IX was enacted, which would mean that the DOJ was exceeding its authority by adding meaning to the statute that Congress hadn’t originally intended or expected it to have.

This case was assigned to Judge Louise Wood Flanagan. The plaintiffs sought consolidation with the McCrory case, which was before Judge Terrence W. Boyle. On June 13, 2016, Judge Boyle issued an order stating that he would allow the cases to be consolidated. On June 15, Judge Flanagan scheduled a hearing to determine whether the cases should be consolidated.

In the hearing, the court denied the motion to consolidate and instead transferred this case to the Middle District of North Carolina, where three other HB2 cases were in progress, with no objection from any of the parties. The transfer order was given on June 29, 2016, and this case was assigned to Judge Thomas D. Schroeder and Magistrate Judge Joi Elizabeth Peake.

On July 14, the judge ordered the parties in this case and the three associated HB2 cases in North Carolina to appear on August 1 on their various motions pending in a consolidated hearing, and indicated the trials would take place in October or November. The Judge requested they file a joint statement of agreements reached and explaining their respective positions by July 22 for a pretrial scheduling conference. On July 25, the court consolidated these cases for the purpose of discovery only.

On July 28, 2016, the plaintiffs filed a voluntary dismissal given that they were pursuing the same claims as United States of America v. North Carolina and their claims were duplicative of those in that case. More information on the litigation in the consolidated case can be read here.

Summary Authors

Ryan Berry (6/16/2016)

Rachel Czwartacky (10/18/2018)

Related Cases

Carcaño v. McCrory, Middle District of North Carolina (2016)

McCrory v. United States, Eastern District of North Carolina (2016)

United States v. State of North Carolina, Middle District of North Carolina (2016)

North Carolinians for Privacy v. United States Department of Justice, Eastern District of North Carolina (2016)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/6197812/parties/briggs-v-berryhill/


Judge(s)

Flanagan, Louise W. (North Carolina)

Schroeder, Thomas D. (North Carolina)

Attorneys(s) for Plaintiff

Duncan, Stuart Kyle (Louisiana)

McDowell, Leah D. (Mississippi)

Potter, Robert D. Jr. (North Carolina)

Schaerr, Gene C. (District of Columbia)

Attorneys(s) for Defendant

Gupta, Vanita (District of Columbia)

James, Michael (North Carolina)

Lynch, Loretta (New York)

Nestler, Emily B. (District of Columbia)

Judge(s)

Flanagan, Louise W. (North Carolina)

Schroeder, Thomas D. (North Carolina)

Attorneys(s) for Plaintiff

Duncan, Stuart Kyle (Louisiana)

McDowell, Leah D. (Mississippi)

Potter, Robert D. Jr. (North Carolina)

Schaerr, Gene C. (District of Columbia)

Attorneys(s) for Defendant

Gupta, Vanita (District of Columbia)

James, Michael (North Carolina)

Lynch, Loretta (New York)

Nestler, Emily B. (District of Columbia)

Other Attorney(s)

Bowers, Karl S. (South Carolina)

Brooks, Brennan Tyler (North Carolina)

Gordon, Frank J. (North Carolina)

Nimocks, David A. (Texas)

Stephens, Robert C. (North Carolina)

Stewart, William Woodley Jr. (North Carolina)

Expert/Monitor/Master

Peake, Joi Elizabeth (North Carolina)

Pfeiffer, Sonya (North Carolina)

Documents in the Clearinghouse

Document

4:16-cv-00240

Docket [PACER]

July 18, 2016

July 18, 2016

Docket

1:16-cv-00844

Docket [Pacer]

U.S. District Court for the Middle District of North Carolina

Dec. 16, 2016

Dec. 16, 2016

Docket
1

4:16-cv-00240

Complaint

Berger v. U.S.

May 9, 2016

May 9, 2016

Complaint
27

4:16-cv-00240

5:16-cv-00245

Order

June 29, 2016

June 29, 2016

Order/Opinion
33

1:16-cv-00844

Notice of Voluntary Dismissal

United States Department of Justice v. Berger

U.S. District Court for the Middle District of North Carolina

July 28, 2016

July 28, 2016

Notice Letter

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/6197812/briggs-v-berryhill/

Last updated Nov. 2, 2022, 3:24 a.m.

ECF Number Description Date Link Date / Link
29

Memorandum in Support regarding 28 MOTION to Withdraw as Attorney filed by United States Department of Justice. (James, Michael) (Entered: 07/15/2016)

July 15, 2016

July 15, 2016

30

ORDER granting 28 Motion to Withdraw as Attorney − Signed by District Judge Louise Wood Flanagan on 7/18/2016. (Baker, C.) (Entered: 07/18/2016)

July 18, 2016

July 18, 2016

1

MOTION for Leave to Proceed in forma pauperis filed by Andrew Briggs. (Attachments: # 1 Civil Cover Sheet, # 2 Complaint, # 3 Summons to Carolyn W. Colvin, Acting Commissioner of Social Security, # 4 Summons to the Civil Process Clerk, # 5 Summons to the Honorable Loretta E. Lynch, United States Attorney General, # 6 Form 285 for Summons to Carolyn W. Colvin, # 7 Form 285 for Summons to the Civil Processing Clerk, # 8 Form 285 for Summons to Loretta E. Lynch, United States Attorney General) (Wittenberg, Lawrence) (Entered: 09/09/2016)

Sept. 9, 2016

Sept. 9, 2016

PACER
2

Notice of Appearance filed by Lawrence Wittenberg on behalf of Andrew Briggs. (Wittenberg, Lawrence) (Entered: 09/09/2016)

Sept. 9, 2016

Sept. 9, 2016

PACER
3

Financial Disclosure Statement by Andrew Briggs (Wittenberg, Lawrence) (Entered: 09/09/2016)

Sept. 9, 2016

Sept. 9, 2016

PACER
4

ORDER granting 1 Motion for Leave to Proceed in forma pauperis. The Clerk is DIRECTED to file the complaint and issue the summonses prepared by Plaintiff. The United States Marshal is DIRECTED to serve the summonses and a copy of the complaint on Defendant. Signed by Magistrate Judge Robert B. Jones, Jr. on 9/12/2016. (Grady, B.) (Entered: 09/12/2016)

Sept. 12, 2016

Sept. 12, 2016

PACER
5

COMPLAINT against Carolyn W. Colvin filed by Andrew Briggs. (Grady, B.) (Entered: 09/12/2016)

Sept. 12, 2016

Sept. 12, 2016

PACER
6

Summonses issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 USM 285 Forms) (Grady, B.) (Entered: 09/12/2016)

Sept. 12, 2016

Sept. 12, 2016

PACER

Remark - Certified copy of 4 order and copies of USM 285 forms, complaint, summonses, notice of appearance and financial disclosure sent to US Marshal for service on 9/12/2016. (Grady, B.)

Sept. 12, 2016

Sept. 12, 2016

PACER

Motion Referred to US Magistrate Judge Robert B. Jones, Jr.: 1 MOTION for Leave to Proceed in forma pauperis. (Grady, B.)

Sept. 12, 2016

Sept. 12, 2016

PACER
7

Summons Returned Executed - US Marshal 285 Form - US Attorney served on behalf of Carolyn W. Colvin on 9/20/2016, answer due 11/19/2016. (Grady, B.) (Entered: 09/22/2016)

Sept. 21, 2016

Sept. 21, 2016

PACER
8

Affidavit of Service - US Marshal 285 Form - Summons and complaint served on Carolyn W. Colvin on 9/19/2016. (Grady, B.) (Entered: 09/23/2016)

Sept. 23, 2016

Sept. 23, 2016

PACER
9

Affidavit of Service - US Marshal 285 Form - Summons and complaint served on US Attorney General on 9/19/2016. (Grady, B.) (Entered: 09/30/2016)

Sept. 30, 2016

Sept. 30, 2016

PACER
10

Notice of Appearance filed by Peter A. Heinlein on behalf of Carolyn W. Colvin. (Heinlein, Peter) (Entered: 11/16/2016)

Nov. 16, 2016

Nov. 16, 2016

PACER
11

ANSWER to 5 Complaint by Carolyn W. Colvin. (Heinlein, Peter) (Entered: 11/16/2016)

Nov. 16, 2016

Nov. 16, 2016

PACER
12

Transcripts - Social Security Case (Heinlein, Peter) (Entered: 11/16/2016)

Nov. 16, 2016

Nov. 16, 2016

PACER
13

Notice to parties regarding the briefing schedule for filing cross motions for judgment on the pleadings. (Grady, B.) (Entered: 11/18/2016)

Nov. 18, 2016

Nov. 18, 2016

PACER

REMINDER TO COUNSEL. Pursuant to Judge Fox's Practice Preferences located on the court's website, counsel shall provide a courtesy copy of lengthy briefs, by mailing or delivering to the clerk's office in Wilmington. (Grady, B.)

Nov. 18, 2016

Nov. 18, 2016

PACER
14

Notice of Appearance filed by Angela R. Cinski on behalf of Andrew Briggs. (Cinski, Angela) (Entered: 01/10/2017)

Jan. 10, 2017

Jan. 10, 2017

PACER
15

Notice of Substitution of Counsel filed by Angela R. Cinski on behalf of Andrew Briggs substituting for Lawrence Wittenberg. (Cinski, Angela) (Entered: 01/10/2017)

Jan. 10, 2017

Jan. 10, 2017

PACER
16

MOTION for Extension of Time to File Plaintiff's Motion for Judgment on the Pleadings and Memorandum of Law in Support of Motion filed by Andrew Briggs. (Attachments: # 1 Text of Proposed Order) (Cinski, Angela) (Entered: 01/11/2017)

Jan. 11, 2017

Jan. 11, 2017

PACER

Motion Referred to Julie Richards Johnston, Clerk of Court regarding: 16 MOTION for Extension of Time to File Plaintiff's Motion for Judgment on the Pleadings and Memorandum of Law in Support of Motion. (Edwards, S.)

Jan. 11, 2017

Jan. 11, 2017

PACER

NOTICE OF DEFICIENCY regarding: 15 Notice of Substitution of Counsel. Counsel's notice of substitution does not comply with Local Civil Rule 5.2(c) which is available for viewing at www.nced.uscourts.gov. Counsel must file an amended notice making sure to include all required information as stated in Local Civil Rule 5.2(c). See also Local Civil Rule 5.2(e). (Edwards, S.)

Jan. 11, 2017

Jan. 11, 2017

PACER

TEXT ORDER granting plaintiff's motion for extension of time 16 . Plaintiff shall have up to and including March 16, 2017 to file his motion for judgment on the pleadings. Signed by Julie Richards Johnston, Clerk of Court on 1/17/2017. (Hockaday, A.)

Jan. 17, 2017

Jan. 17, 2017

PACER
17

MOTION for Judgment on the Pleadings filed by Andrew Briggs. (Cinski, Angela) (Entered: 03/14/2017)

March 14, 2017

March 14, 2017

PACER
18

Memorandum in Support regarding 17 MOTION for Judgment on the Pleadings filed by Andrew Briggs. (Cinski, Angela) (Entered: 03/14/2017)

March 14, 2017

March 14, 2017

PACER
19

MOTION for Judgment on the Pleadings filed by Nancy A. Berryhill. (Heinlein, Peter) (Entered: 05/09/2017)

May 9, 2017

May 9, 2017

PACER
20

Memorandum in Support regarding 19 MOTION for Judgment on the Pleadings filed by Nancy A. Berryhill. (Heinlein, Peter) (Entered: 05/09/2017)

May 9, 2017

May 9, 2017

PACER
21

TEXT ORDER REASSIGNING CASE. At the direction of the Court, this case is reassigned to United States District Judge Louise Wood Flanagan for all further proceedings. Senior United States District Judge James C. Fox is no longer assigned to the case. All future filings shall reflect the revised case number of 4:16-CV-240-FL. Signed by Peter A. Moore, Jr., Clerk of Court on 6/5/2017. (Hockaday, A.) (Entered: 06/05/2017)

June 5, 2017

June 5, 2017

PACER

TEXT ORDER REFERRING MOTIONS: At the direction of the Court, the 19 Motion for Judgment on the Pleadings filed by Nancy A. Berryhill and the 17 Motion for Judgment on the Pleadings filed by Andrew Briggs are referred to United States Magistrate Judge Robert B. Jones, Jr. to prepare a memorandum and recommendation. Signed by Peter A. Moore, Jr., Clerk of Court on 6/5/2017. (Hockaday, A.)

June 5, 2017

June 5, 2017

PACER

Motions Referred to US Magistrate Judge Robert B. Jones, Jr regarding 19 MOTION for Judgment on the Pleadings, 17 MOTION for Judgment on the Pleadings. (Tripp, S.)

June 5, 2017

June 5, 2017

PACER
22

MEMORANDUM AND RECOMMENDATION regarding 19 MOTION for Judgment on the Pleadings filed by Nancy A. Berryhill, 17 MOTION for Judgment on the Pleadings filed by Andrew Briggs - Objections due by 9/13/2017. Signed by Magistrate Judge Robert B. Jones, Jr. on 8/30/2017. (Tripp, S.) (Entered: 08/30/2017)

Aug. 30, 2017

Aug. 30, 2017

RECAP
23

ORDER - The court hereby ADOPTS the recommendation of the magistrate judge as its own, and, for the reasons stated therein, plaintiffs motion is GRANTED, defendants motion is DENIED, and this matter is REMANDED to defendant pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with the M&R. The clerk of court is directed to close the case. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 9/22/2017. (Collins, S.) (Entered: 09/22/2017)

Sept. 22, 2017

Sept. 22, 2017

RECAP
24

JUDGMENT - Signed by Peter A. Moore, Jr., Clerk of Court on 9/22/2017. (Collins, S.) (Entered: 09/22/2017)

Sept. 22, 2017

Sept. 22, 2017

RECAP
25

MOTION for Attorney Fees under E.A.J.A. filed by Andrew Briggs. (Attachments: # 1 Text of Proposed Order) (Cinski, Angela) (Entered: 10/20/2017)

Oct. 20, 2017

Oct. 20, 2017

PACER
26

Memorandum in Support regarding 25 MOTION for Attorney Fees under E.A.J.A. filed by Andrew Briggs. (Attachments: # 1 EAJA Assignment, # 2 Attorneys Declaration) (Cinski, Angela) (Entered: 10/20/2017)

Oct. 20, 2017

Oct. 20, 2017

PACER
27

RESPONSE regarding 25 MOTION for Attorney Fees under E.A.J.A. filed by Nancy A. Berryhill. (Attachments: # 1 Text of Proposed Order Granting Attorney Fees Under the Equal Access to Justice Act) (Heinlein, Peter) (Entered: 10/30/2017)

Oct. 30, 2017

Oct. 30, 2017

PACER

Motion Submitted to District Judge Louise Wood Flanagan: regarding 25 MOTION for Attorney Fees under E.A.J.A.. (Collins, S.)

Oct. 30, 2017

Oct. 30, 2017

PACER
28

ORDER granting 25 Motion for Attorney Fees. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 10/31/2017. (Collins, S.) (Entered: 10/31/2017)

Oct. 31, 2017

Oct. 31, 2017

RECAP

Case Details

State / Territory: North Carolina

Case Type(s):

Public Accommodations/Contracting

Special Collection(s):

Transgender Bathroom Access Cases

Multi-LexSum (in sample)

Key Dates

Filing Date: May 9, 2016

Closing Date: July 28, 2016

Case Ongoing: No

Plaintiffs

Plaintiff Description:

The President pro tempore of the North Carolina senate and the Speaker of the North Carolina House of Representatives

Plaintiff Type(s):

State Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

U.S. Department of Justice , Federal

Case Details

Causes of Action:

Declaratory Judgment Act, 28 U.S.C. § 2201

Constitutional Clause(s):

Commerce Power

Federalism (including 10th Amendment)

Equal Protection

Availably Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None

Source of Relief:

None

Form of Settlement:

Voluntary Dismissal

Issues

General:

Access to public accommodations - governmental

Access to public accommodations - privately owned

Bathing and hygiene

Bathrooms

Buildings

Disparate Impact

Disparate Treatment

Gay/lesbian/transgender

Government services

School/University Facilities

School/University policies

Discrimination-area:

Accommodation / Leave

Discrimination-basis:

Gender identity

Sexual orientation

Type of Facility:

Government-run