Hennessy-Waller v. Snyder

• Decision Date: 30 March 2021
• Docket Number: No. CV-20-00335-TUC-SHR,CV-20-00335-TUC-SHR
• Citation: 529 F.Supp.3d 1031
• Parties: Janice HENNESSY-WALLER, et al., Plaintiffs, v. Jami SNYDER, Defendant.
• Court: U.S. District Court — District of Arizona

529 F.Supp.3d 1031

Janice HENNESSY-WALLER, et al., Plaintiffs,

v.Jami SNYDER, Defendant.

No. CV-20-00335-TUC-SHR

United States District Court, D. Arizona.

Signed March 30, 2021

Abigail K. Coursolle, Pro Hac Vice, National Health Law Program, Los Angeles, CA, Andrew J. Chinsky, Pro Hac Vice, Brent P. Ray, Pro Hac Vice, King & Spalding LLP, Chicago, IL, Catherine Anne McKee, Pro Hac Vice, National Health Law Program, Chapel Hill, NC, Daniel Clayton Barr, Janet Marie Howe, Perkins Coie LLP, Phoenix, AZ, Asaf Orr, Pro Hac Vice, National Center for Lesbian Rights, San Francisco, CA, for Plaintiffs.

David T. Barton, Kathryn H. King, Burns Barton LLP, Logan T. Johnston, Johnston Law Offices PLC, Phoenix, AZ, for Defendant.

Order re: Plaintiffs’ Motion for Preliminary Injunction

Scott H. Rash, United States District Judge

Pending before the Court is Plaintiffs D.H. and John Doe's Motion for Preliminary Injunction, asking the Court to enjoin Defendant Jami Snyder, Director of the Arizona Health Care Cost Containment System ("AHCCCS"), "from further enforcement of" a regulation that excludes gender reassignment surgery

from coverage and to "order AHCCCS to cover male chest reconstruction surgery for D.H. and John." (Doc. 3 ep 2.¹ ) Defendant has responded (Doc. 18) and Plaintiffs have replied (Doc. 25.) Oral argument was held on February 5, 2021. (Doc. 48.) For the reasons that follow, the Court will deny Plaintiffs’ Motion.

I. Background

The following facts are derived from Plaintiffs’ Complaint (Doc. 1) and sworn declarations submitted in support of their Motion for Preliminary Injunction (Docs. 4, 5). Plaintiffs are minors—D.H. is seventeen and John is fifteen years old—who are enrolled in Arizona's Medicaid program known as AHCCCS. Plaintiffs were born as females, have been diagnosed with gender dysphoria

, and have since transitioned to live as males with the recommendation and support of their healthcare providers. As part of their treatment for gender dysphoria, Plaintiffs started taking testosterone over one year ago. Since then, Plaintiffs’ healthcare providers have recommended they obtain "male chest reconstruction surgery"² —that is, the permanent removal of their breasts—"to further alleviate [their] gender dysphoria."

AHCCCS, however, specifically excludes the following from coverage:

a. Infertility services, reversal of surgically induced infertility (sterilization), and gender reassignment surgeries

;

b. Pregnancy termination counseling services;

c. Pregnancy terminations, unless required by state or federal law;

d. Services or items furnished solely for cosmetic purposes; and

e. Hysterectomies unless determined medically necessary.

Ariz. Admin. Code R9-22-205(B)(4) (emphasis added).

On August 2, 2020, Plaintiffs filed their Complaint against AHCCCS Director Jami Snyder, in her official capacity, alleging AHCCCS's policy of excluding gender reassignment surgery

from coverage pursuant to R9-22-205(B)(4)(a) (the "Challenged Exclusion") violates various provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 – 1396w-5 ("Medicaid Act"), Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 ("Section 1557"), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In their Complaint, Plaintiffs seek: (1) class certification³ ; (2) "preliminary and permanent injunctions prohibiting Defendant from any further enforcement or application of the Challenged Exclusion" and "directing Defendant and [her] agents to provide Medicaid coverage for medically necessary male chest reconstruction surgery"; and (3) declaratory judgment that the denial of coverage for male chest reconstruction surgery violates the Medicaid Act, Section 1557, and Equal Protection Clause. (Doc. 1, ep 25-26.)

In their Motion for Preliminary Injunction ("Motion"), Plaintiffs seek to "preliminarily enjoin Defendant[ ] from further enforcement of the regulation and order AHCCCS to cover male chest reconstruction surgery for D.H. and John." (Doc. 3 ep 2.) In their proposed order, Plaintiffs request the Court order: (1) "Defendant[ ] shall be immediately enjoined from further enforcement of Ariz. Admin. Code R9-22-205(B)(4)(A), on the grounds that it violates the Medicaid Act's EPSDT [Early and Periodic Screening, Diagnostic and Treatment] and Comparability Requirements, Section 1557 of the [Patient Protection and] Affordable Care Act, and the Equal Protection Clause of the United States Constitution"; and (2) the "Arizona Healthcare Cost Containment System shall provide coverage for Plaintiffs’ male chest reconstruction surgeries, consistent with all other requirements of federal law." (Doc. 3-1.)

After oral argument,⁴ the parties submitted supplemental briefing as to whether Plaintiffs were required to exhaust their administrative remedies before seeking relief in court. (Docs. 62, 64.) The parties agree Plaintiffs are not required to exhaust their administrative remedies because they seek injunctive relief under 42 U.S.C. § 1983. (Docs. 59, 64.) See Patsy v. Bd. of Regents , 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982).⁵ Accordingly, this Court has jurisdiction pursuant to U.S.C. §§ 1331 and 1343(a)(3)-(4).

II. Preliminary Injunction Standard

"A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing , carries the burden of persuasion.’ " Lopez v. Brewer , 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis in original)); see also Am. Beverage Ass'n v. City & Cnty. of S.F. , 916 F.3d 749, 754 (9th Cir. 2019). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Monarch Content Mgmt. LLC v. Ariz. Dep't of Gaming , 971 F.3d 1021, 1027 (9th Cir. 2020) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ); see also All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1132 (9th Cir. 2011). A plaintiff must show more than a mere "possibility" of irreparable harm—he must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter , 555 U.S. at 22, 129 S.Ct. 365 (emphasis in original); see also Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Tr. , 636 F.3d 1150, 1160 (9th Cir. 2011) (injunction will not issue if party seeking injunctive relief shows "mere possibility of some remote future injury, or a conjectural or hypothetical injury"). The Ninth Circuit Court of Appeals, employing a sliding scale analysis, has also stated: " ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1085 (9th Cir. 2013) (quoting All. for the Wild Rockies , 632 F.3d at 1132 ) (sliding-scale test "remains viable" after Winter though movants "must also satisfy the other Winter factors").

The standard a party must meet to obtain injunctive relief depends on the type of injunction sought. A prohibitory injunction "restrain[s] a party from taking action and effectively "freezes the positions of the parties until the court can hear the case on the merits." Edmo v. Idaho Dep't of Corr. , 358 F.Supp. 3d 1103, 1122 (D. Idaho 2018) (quoting Heckler v. Lopez , 463 U.S. 1328, 1333, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983) ). In contrast, a mandatory injunction is one that "orders a responsible party to take action," Meghrig v. KFC W., Inc. , 516 U.S. 479, 484, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), and therefore " ‘goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored.’ " Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 879 (9th Cir. 2009) (alterations in original) (quoting Anderson v. United States , 612 F.2d 1112, 1114 (9th Cir. 1979) ); see also Stanley v. Univ. of S. Cal. , 13 F.3d 1313, 1320 (9th Cir. 1994) (prohibitory injunction maintains status quo, whereas mandatory injunction goes well beyond maintaining status quo). "Mandatory injunctions, while subject to a higher standard than prohibitory injunctions, are permissible when ‘extreme or very serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits of the case are not ‘doubtful.’ " Hernandez v. Sessions , 872 F.3d 976, 999 (9th Cir. 2017) (quoting Marlyn Nutraceuticals, 571 F.3d at 879 ); see also Anderson , 612 F.2d at 1115. Therefore "[s]uch mandatory preliminary relief is subject to heightened scrutiny and should not be issued unless the facts and law clearly favor the moving party." Dahl v. HEM Pharm. Corp. , 7 F.3d 1399, 1403 (9th Cir. 1993).

Defendant asserts the injunction sought here is a mandatory one and, therefore, is subject to higher scrutiny. (Doc. 18 ep 8.) Plaintiffs argue it is a prohibitive injunction because they seek to "enjoin Defendant from enforcing a regulation that prohibits coverage for surgeries to treat gender dysphoria

, including male chest reconstruction surgery." (Doc. 25 ep 4.) At oral argument, Plaintiffs reiterated this, relying on M.R. v. Dreyfus , 697 F.3d 706 (9th Cir. 2012) ; however, this case is distinguishable. Like the instant case, plaintiffs in M.R. sought to enjoin the state from enforcing a state Medicaid regulation. Unlike the instant case, the regulation in M.R. was new and enacted to save money during an economic downturn which would have resulted in a decrease in Medicaid benefits that beneficiaries were previously receiving and were entitled to by law. Enjoining the regulation here would not result in a decrease in benefits Plaintiffs are...