Doyle v. Hogan

• Decision Date: 15 June 2021
• Docket Number: No. 19-2064,19-2064
• Citation: 1 F.4th 249
• Parties: Christopher DOYLE, LPC, LCPC, individually and on behalf of his clients, Plaintiff-Appellant, v. Lawrence J. HOGAN, Jr., Governor of the State of Maryland in his official capacity; Brian E. Frosh, Attorney General of the State of Maryland in his official capacity, Defendants-Appellees, Foundation for Moral Law, Amicus Supporting Appellant. American Association for Marriage and Family Therapy ; American Medical Association ; American Psychological Association ; Maryland Psychological Association ; Maryland State Medical Society ; National Association of Social Workers ; National Association of Social Workers Maryland Chapter ; The Trevor Project; FreeState Justice, Inc.; GLBTQ Legal Advocates & Defenders; Human Rights Campaign; Lambda Legal Defense and Education Fund; National Center for Lesbian Rights; Survivors of Sexual Orientation Change Efforts, Amici Supporting Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

1 F.4th 249

Christopher DOYLE, LPC, LCPC, individually and on behalf of his clients, Plaintiff-Appellant,

v. Lawrence J. HOGAN, Jr., Governor of the State of Maryland in his official capacity; Brian E. Frosh, Attorney General of the State of Maryland in his official capacity, Defendants-Appellees,Foundation for Moral Law, Amicus Supporting Appellant.American Association for Marriage and Family Therapy ; American Medical Association ; American Psychological Association ; Maryland Psychological Association ; Maryland State Medical Society ; National Association of Social Workers ; National Association of Social Workers Maryland Chapter ; The Trevor Project; FreeState Justice, Inc.; GLBTQ Legal Advocates & Defenders; Human Rights Campaign; Lambda Legal Defense and Education Fund; National Center for Lesbian Rights; Survivors of Sexual Orientation Change Efforts, Amici Supporting Appellees.

No. 19-2064

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2020

Decided: June 15, 2021

ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Orlando, Florida, for Appellant. Kathleen A. Ellis, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: John R. Garza, GARZA LAW FIRM, P.A., Rockville, Maryland; Horatio G. Mihet, Roger K. Gannam, Daniel Schmid, LIBERTY COUNSEL, Orlando, Florida, for Appellant. Brian E. Frosh, Attorney General, Brett E. Felter, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. John A. Eidsmoe, FOUNDATION FOR MORAL LAW, Montgomery, Alabama, for Amicus Foundation for Moral Law. Sanford Jay Rosen, Benjamin Bien-Kahn, ROSEN BIEN GALVAN & GRUNFELD, San Francisco, California, for Amici Survivors of Sexual Orientation Change Efforts. Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California; Omar Gonzalez-Pagan, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York; Charlotte Persephone Hoffman, FREESTATE JUSTICE, INC., Baltimore, Maryland, for Amici FreeState Justice, Inc., National Center for Lesbian Rights, Lambda Legal Defense and Education Fund, Inc., GLBTQ Legal Advocates & Defenders, and Human Rights Campaign. Nathalie F.P. Gilfoyle, Deanne M. Ottaviano, AMERICAN PSYCHOLOGICAL ASSOCIATION, Washington, D.C., for Amicus American Psychological Association. Devi M. Rao, Jessica Ring Amunson, Emily L. Chapuis, James T. Dawson, JENNER & BLOCK LLP, Washington, D.C., for Amici American Psychological Association, Maryland Psychological Association, American Medical Association, Maryland State Medical Society, National Association of Social Workers with National Association of Social Workers Maryland Chapter, and American Association for Marriage and Family Therapy. Anne B. Camper, NATIONAL ASSOCIATION OF SOCIAL WORKERS, Washington, D.C., for Amicus National Association of Social Workers. Corey G. Singer, Los Angeles, California, Howard S. Hogan, Stuart D. Delery, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amicus The Trevor Project.

Before NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges

Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Niemeyer and Judge Motz joined.

RICHARDSON, Circuit Judge:

Christopher Doyle, a professional counselor in Maryland, seeks to provide talk therapy to reduce his minor clients’ same-sex attractions. But Maryland law allegedly proscribes this practice. See Md. Code Ann., Health Occ. § 1-212.1. Doyle claims that in doing so, Maryland has infringed his First Amendment rights by preventing him from engaging in the type of counseling he wants to do. So he sued the Governor and the Attorney General of Maryland.

But Doyle sued the wrong defendants. He argues that he can sue the Governor and the Attorney General under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which provides an exception to their immunity from being sued in federal court. But neither the Governor nor the Attorney General have the necessary connection to enforcing § 1-212.1 that permits Doyle's suit against them. So because of Doyle's choice of defendants, we may not consider the interesting First Amendment issues he raises. We therefore reverse the district court's judgment finding that the Governor and the Attorney General lack immunity and vacate the rest of its rulings in this case.

I. Background

A. The Act

In 2018, the Maryland General Assembly passed and the Governor signed into law the Youth Mental Health Protection Act (Senate Bill 1028). The Act prohibits a "mental health or child care practitioner" from "engag[ing] in conversion therapy with an individual who is a minor." Md. Code Ann., Health Occ. § 1-212.1(b).¹ If practitioners provide such therapy, they have "engaged in unprofessional conduct" and are "subject to discipline" by their "licensing or certifying board." Id. § 1-212.1(c).

B. Doyle's practice

Doyle is licensed as a professional counselor in Maryland. He serves as the Executive Director of the Institute for Healthy Families where he provides counseling. About 10 percent of his practice involves treating minors.

As part of his treatment, Doyle engages in talk therapy, where he works to alleviate minors’ "unwanted same-sex sexual attractions, behaviors, or identities." J.A. 12. He does so by talking "about root causes, about gender roles and identities, and about [his clients’] anxieties and confusion that arise from" their same-sex attractions. J.A. 33. Doyle "does not begin counseling with any predetermined goals," relying on his clients to "identify and set" the therapy objectives. J.A. 34. Thus, if an individual does not want to reduce their same-sex attractions, Doyle would use talk therapy to help them accept those attractions. But if they did want to reduce those attractions, Doyle would seek to help them do so. J.A. 34; see also J.A. 859 (Doyle's Informed Consent and Liability Waiver and Release Form stating that he practices "sexual identity affirming therapy"); J.A. 941 (stating that his "practices [ ] may have an effect on [his] client's sexual identity, gender identity, attractions, behaviors, etcetera"). But Doyle has several clients who he believes he cannot counsel in the way he would like because of the Act's proscriptions.

C. District court proceedings

Doyle sued the Governor of Maryland (Lawrence Hogan) and the Attorney General of Maryland (Brian Frosh) in their official capacities. His complaint contained five counts, including that the Act violated his freedom of speech.

Defendants sought to dismiss the complaint for lack of standing and sovereign immunity. The district court found that Doyle had standing to assert his own claims because he " ‘experienced a non-speculative and objectively reasonable chilling effect’ due to § 1-212.1." Doyle v. Hogan , No. DKC 19-0190, 2019 WL 3500924, at *9 (D. Md. Aug. 1, 2019) (quoting Cooksey v. Futrell , 721 F.3d 226, 236 (4th Cir. 2013) ). The district court also rejected defendants’ claimed sovereign immunity based on their connection to the enforcement of the Act. The court explained that § 1-212.1 "does not explicitly prohibit oversight by the Maryland governor and attorney general," and the governor " ‘supervise[s] and direct[s]’ " the executive branch, while the attorney general is the " ‘legal adviser of ... the State government.’ " Id. at *11 (alterations in original) (first quoting Md. Code Ann., State Gov't § 3-302 ; and then quoting id. § 6-106). In a subsequent opinion, the district court dismissed Doyle's claims on the merits and denied Doyle's motion for a preliminary injunction as moot. Doyle v. Hogan , 411 F. Supp. 3d 337, 351 (D. Md. 2019). Doyle timely appealed, and we have jurisdiction. See 28 U.S.C. § 1291.

II. Discussion

Doyle seeks to enjoin the Act's enforcement.² In doing so, he raises an interesting First Amendment question that would be a matter of first impression in this Circuit. See Otto v. City of Boca Raton , 981 F.3d 854, 859 (11th Cir. 2020) (holding that a ban on conversion therapy was an unconstitutional content-based restriction). But we may not address that question because Doyle cannot sue the Governor and the Attorney General in federal court under these circumstances.

In general, States may not be haled into federal court without their consent. Va. Off. for Protection & Advocacy v. Stewart , 563 U.S. 247, 258, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011) ; see also William Baude, Sovereign Immunity and the Constitutional Text , 103 Va. L. Rev. 1 (2017). But suits may, at least sometimes, be brought in federal court to enjoin a state officer from enforcing an unconstitutional act. Ex parte Young , 209 U.S. 123, 159–60, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

The "sometimes" qualifier is important. See Armstrong v. Exceptional Child Ctr., Inc. , 575 U.S. 320, 326, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). For two requirements must be met to sue a state officer for an injunction.

First, Ex parte Young authorizes suits only against officers with "some connection with the enforcement of the act." 209 U.S. at 157, 28 S.Ct. 441 ; accord id . at 155–56, 28 S.Ct. 441 ; Allen v. Cooper , 895 F.3d 337, 355 (4th Cir. 2018). Without this enforcement duty, the officer is merely "a representative of the State" who cannot be sued because allowing such a suit would essentially "make the State a party." Ex parte Young , 209 U.S. at 157, 28 S.Ct. 441. This enforcement duty exists when there is a " ‘special relation’ between the state officer sued and the challenged statute," which provides the officer with the authority to enforce the particular law at issue. Waste Mgmt. Holdings, Inc. v. Gilmore , 252 F.3d 316, 331 (4th Cir. 2001) (quoting Ex parte Young , 209 U.S. at 157, 28 S.Ct. 441 ). That authority can come from the "particular act" being challenged, a more general law providing enforcement authority, or "the general duties of the officer." Ex parte Young , 209 U.S. at 157–58, 28 S.Ct. 441. That said, we have held that it is...