722 F.3d 184 (4th Cir. 2013), 11-1314, Centro Tepeyac v. Montgomery County

Docket Nº:11-1314, 11-1336.
Citation:722 F.3d 184
Opinion Judge:KING, Circuit Judge:
Party Name:CENTRO TEPEYAC, Plaintiff-Appellee, v. MONTGOMERY COUNTY; Montgomery County Council, in its capacity as the Montgomery County Board of Health, Defendants-Appellants, and Montgomery County Department of Health and Human Services; Marc Hansen, Acting County Counsel, Defendants. Centro Tepeyac, Plaintiff-Appellant, v. Montgomery County; Montgomery Cou
Attorney:Clifford Lee Royalty, County Attorney's Office, Rockville, Maryland, for Appellants/Cross-Appellees. Mark L. Rienzi, Columbus School of Law, Catholic University of America, Washington, D.C., for Appellee/Cross-Appellant. Marc P. Hansen, County Attorney, Edward B. Lattner, Chief, Division of Human...
Judge Panel:Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, FLOYD, and THACKER, Circuit Judges. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges WILKINSON, MOTZ, GREGORY, DUNCAN, DAVIS, KEENAN, WYNN, FLOYD, and...
Case Date:July 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 184

722 F.3d 184 (4th Cir. 2013)

CENTRO TEPEYAC, Plaintiff-Appellee,

v.

MONTGOMERY COUNTY; Montgomery County Council, in its capacity as the Montgomery County Board of Health, Defendants-Appellants,

and

Montgomery County Department of Health and Human Services; Marc Hansen, Acting County Counsel, Defendants.

Centro Tepeyac, Plaintiff-Appellant,

v.

Montgomery County; Montgomery County Council, in its capacity as the Montgomery County Board of Health, Defendants-Appellees,

and

Montgomery County Department of Health and Human Services; Marc Hansen, Acting County Counsel, Defendants.

Nos. 11-1314, 11-1336.

United States Court of Appeals, Fourth Circuit.

July 3, 2013

Argued: Dec. 6, 2012.

Page 185

ARGUED:

Clifford Lee Royalty, County Attorney's Office, Rockville, Maryland, for Appellants/Cross-Appellees.

Mark L. Rienzi, Columbus School of Law, Catholic University of America, Washington, D.C., for Appellee/Cross-Appellant.

ON BRIEF:

Marc P. Hansen, County Attorney, Edward B. Lattner, Chief, Division of Human Resources & Appeals, County Attorney's Office, Rockville, Maryland, for Appellants/Cross-Appellees.

Steven H. Aden, Matthew S. Bowman, M. Casey Mattox, Alliance Defense Fund, Washington, D.C.; Robert Destro, Columbus School of Law, Catholic University of America, Washington, D.C.; John R. Garza, Garza, Regan & Associates, Rockville, Maryland; Robert Michael, Shadoan, Michael & Wells LLP, Rockville, Maryland, for Appellee/Cross-Appellant.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, FLOYD, and THACKER, Circuit Judges.

Page 186

Affirmed by published opinion.

Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges WILKINSON, MOTZ, GREGORY, DUNCAN, DAVIS, KEENAN, WYNN, FLOYD, and THACKER joined. Judge WILKINSON wrote a concurring opinion. Judge NIEMEYER wrote a dissenting opinion, in which Judges SHEDD and AGEE joined.

KING, Circuit Judge:

These cross-appeals demand our review of the district court's decision to preliminarily enjoin enforcement of one portion of a Montgomery County Resolution requiring limited service pregnancy resource centers to post signs disclosing (1) that " the Center does not have a licensed medical professional on staff," and (2) that " the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider." See Centro Tepeyac v. Montgomery Cnty., 779 F.Supp.2d 456, 469-72 (D.Md.2011). The injunction encompasses the second statement compelled by the Resolution, but not the first one— leaving no party to this dispute fully satisfied. Because the district court acted well within its discretion, however, we affirm its decision.1

I.

A.

On February 2, 2010, the Montgomery County Council, acting as the Montgomery County Board of Health, adopted the Resolution at issue, No. 16-1252. See J.A. 198-200.2 The Resolution applies to limited service pregnancy resource centers, defined therein as

an organization, center, or individual that:

(A) has a primary purpose to provide pregnancy-related services;

(B) does not have a licensed medical professional on staff; and

(C) provides information about pregnancy-related services, for a fee or as a free service.

Id. at 199. The Resolution requires each such center to " post at least 1 sign in the Center" making the specified disclosures, i.e., that " the Center does not have a licensed medical professional on staff," and that " the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider." Id. The sign must be " written in English and Spanish," " easily readable," and " conspicuously posted in the Center's waiting room or other area where individuals await service." Id. The Resolution relays the County Council's finding, following a December 1, 2009 public hearing, " that requiring a disclaimer for certain pregnancy resource centers is necessary to protect the health of County residents." J.A. 198. Explaining that finding, the Resolution identifies the Council's " concern [as being] that clients may be misled into believing that a Center is providing medical services when it is not," and that " [c]lients could therefore neglect to take action (such as consulting a doctor)

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that would protect their health or prevent adverse consequences, including disease, to the client or the pregnancy." Id.

The Montgomery County Department of Health and Human Services is charged with " investigat[ing] each complaint alleging a violation of [the Resolution] and tak[ing] appropriate action, including issuing a civil citation when compliance cannot be obtained otherwise." J.A. 200. Prior to a citation, however, the Department must " issue a written notice ordering the Center to correct the violation within either" " 10 days of the notice" or " a longer period that the Department specifies in the notice." Id. Where there are " repeated violations" of the Resolution, " [t]he County Attorney may file an action in a court with jurisdiction to enjoin [those] violations." Id.

B.

On May 19, 2010, Centro Tepeyac initiated this 42 U.S.C. § 1983 action in the District of Maryland, claiming that the Resolution is unconstitutional as applied and on its face, under both the First and Fourteenth Amendments. The Complaint identifies Centro Tepeyac as a not-for-profit corporation operating a limited service pregnancy resource center located in the Silver Spring area of Montgomery County. See Complaint ¶¶ 11, 45-47. According to the Complaint, Centro Tepeyac " does not charge women for its services," which include " pregnancy testing, referral services, and confidential discussion of pregnancy options," plus " information on parenting," " post-abortion guidance," and " practical support in the form of diapers, baby clothes and other needed items." Id. ¶¶ 12-13. The Complaint asserts that Centro Tepeyac " does not refer or provide for abortion" or birth-control services other than " abstinence and natural family planning." Id. ¶ 14. The Complaint also alleges, inter alia, that the Resolution is discriminatorily " aimed at pro-life pregnancy resource centers" such as Centro Tepeyac, and that the Resolution forces Centro Tepeyac " to suggest that [it is] not qualified to discuss pregnancy options or to provide help to pregnant women." Id. ¶¶ 30, 50. Attached as exhibits to the Complaint are a declaration of Centro Tepeyac's Executive Director corroborating several of the Complaint's factual allegations; an unofficial version of the Resolution; a press release issued by the Montgomery County Council announcing its adoption of the Resolution; and miscellaneous documents, including portions of the Resolution's legislative record.

The Complaint seeks preliminary and permanent injunctions barring enforcement of the Resolution, as well as monetary damages and litigation costs. With the Complaint, Centro Tepeyac filed a memorandum in support of its request for a preliminary injunction. In response, on June 3, 2010, the four defendants— including Montgomery County and the County Council (together, the " County" )— submitted an opposition to the preliminary injunction request, combined with a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The sole exhibit to the County's submission was a copy of the Resolution as adopted. Thereafter, on June 10, 2010, Centro Tepeyac filed a freestanding motion for a preliminary injunction. The district court conducted a motions hearing on July 23, 2010, and issued its preliminary injunction decision on March 15, 2011.

In these interlocutory cross-appeals, the County contests the district court's decision to the extent that it enjoins enforcement of the Resolution's compelled pronouncement that " the Montgomery County

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Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider." See Centro Tepeyac, 779 F.Supp.2d at 471-72. Meanwhile, Centro Tepeyac challenges the decision insofar as it leaves in place the Resolution's requirement for limited service pregnancy resource centers to disclose that " the Center does not have a licensed medical professional on staff." See id. We possess jurisdiction over these appeals pursuant to 28 U.S.C. § 1292(a)(1) (providing, in pertinent part, that " the courts of appeals shall have jurisdiction of appeals from ... [i]nterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions" ).3

II.

A.

We review for abuse of discretion the district court's preliminary injunction decision. See Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir.2011). As we have expounded,

[t]he decision to issue or deny a preliminary injunction is committed to the sound discretion of the trial court. That decision will not be disturbed on appeal unless the record shows an abuse of that discretion, regardless of whether the appellate court would, in the first instance, have decided the matter differently.

Quince Orchard Valley Citizens Ass'n v. Hodel, 872 F.2d 75, 78 (4th Cir.1989). In conducting our assessment, " we review the district court's factual findings for clear error and review its legal conclusions de novo." Pashby v. Delia, 709 F.3d 307, 319 (4th Cir.2013). We may find an abuse of discretion if the court " appl[ied] an incorrect preliminary injunction standard," " rest[ed] its decision on a clearly erroneous finding of a material fact," or " misapprehend[ed] the law with respect to...

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