Case: Berger v. United States Department of Justice

5:16-cv-00240 | U.S. District Court for the Eastern District of North Carolina

Filed Date: May 9, 2016

Closed Date: July 18, 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 respo…

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.

Summary Authors

Ryan Berry (6/16/2016)

Rachel Czwartacky (10/18/2018)

Isabel Hershey (4/13/2023)

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 attorneys, see: https://www.courtlistener.com/docket/4303709/parties/berger-v-united-states-department-of-justice/


Judge(s)

Flanagan, Louise W. (North Carolina)

Attorney for Plaintiff

Duncan, Stuart Kyle (Louisiana)

Attorney for Defendant
Expert/Monitor/Master/Other

Bowers, Karl S. (South Carolina)

Brooks, Brennan Tyler (North Carolina)

Gordon, Frank J. (North Carolina)

show all people

Documents in the Clearinghouse

Document

5:16-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

5:16-cv-00240

Complaint

Berger v. U.S.

May 9, 2016

May 9, 2016

Complaint
27

5:16-cv-00240

5:16-cv-00245

Order

June 29, 2016

June 29, 2016

Order/Opinion

2016 WL 2016

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
28

5:16-cv-00240

Order

Briggs v. Berryhill

Oct. 31, 2017

Oct. 31, 2017

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4303709/berger-v-united-states-department-of-justice/

Last updated March 27, 2024, 3:06 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against All Defendants (Filing fee $ 400, receipt number 25RGSD63) filed by Phil Berger, Tim Moore. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Financial Disclosure) (Potter, Robert) (Entered: 05/09/2016)

1 Civil Cover Sheet Civil Action Cover Sheet

View on PACER

2 Summons

View on PACER

3 Summons

View on PACER

4 Summons

View on PACER

5 Financial Disclosure

View on PACER

May 9, 2016

May 9, 2016

Clearinghouse
2

Notice of Appearance filed by Robert D. Potter, Jr. on behalf of All Plaintiffs. (Potter, Robert) (Entered: 05/09/2016)

May 9, 2016

May 9, 2016

PACER
3

Notice of Appearance filed by Stuart K. Duncan on behalf of Phil Berger, Tim Moore. (Duncan, Stuart) (Entered: 05/10/2016)

May 10, 2016

May 10, 2016

PACER
4

Summonses Issued as to Vanita Gupta, Loretta E. Lynch, and United States Department of Justice. *NOTICE: Counsel shall print the attached summonses and serve with other case opening documents in accordance with Fed.R.Civ.P. 4.* (Tripp, S.) (Entered: 05/10/2016)

May 10, 2016

May 10, 2016

PACER
5

Notice of Appearance filed by Stuart K. Duncan on behalf of Phil Berger, Tim Moore. (Duncan, Stuart) (Entered: 05/11/2016)

May 11, 2016

May 11, 2016

PACER

Notice of Deficiency - Filing is not text searchable

May 11, 2016

May 11, 2016

PACER

Notice to Counsel

May 11, 2016

May 11, 2016

PACER
6

Financial Disclosure Statement by Phil Berger, Tim Moore. (Potter, Robert) (Entered: 05/11/2016)

May 11, 2016

May 11, 2016

PACER
7

MOTION to Consolidate Cases filed by Phil Berger, Tim Moore. (Attachments: # 1 Text of Proposed Order) (Duncan, Stuart) (Entered: 05/23/2016)

May 23, 2016

May 23, 2016

PACER
8

Memorandum in Support regarding 7 MOTION to Consolidate Cases filed by Phil Berger, Tim Moore. (Duncan, Stuart) (Entered: 05/23/2016)

May 23, 2016

May 23, 2016

PACER
9

Notice of Appearance filed by Brennan Tyler Brooks on behalf of Patrick L. McCrory. (Brooks, Brennan) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER

Notice to Counsel

May 25, 2016

May 25, 2016

PACER
10

Notice of Appearance filed by William W. Stewart, Jr on behalf of Patrick L. McCrory. (Stewart, William) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
11

Notice of Appearance filed by Frank J. Gordon on behalf of Patrick L. McCrory. (Gordon, Frank) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
12

Notice of Appearance for non-district counsel by Karl S. Bowers, Jr. on behalf of Patrick L. McCrory, Frank Perry. (Bowers, Karl) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
13

RESPONSE to Motion regarding 7 MOTION to Consolidate Cases filed by Patrick L. McCrory, Frank Perry. (Stewart, William) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
14

Financial Disclosure Statement by Patrick L. McCrory. (Stewart, William) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
15

Financial Disclosure Statement by Frank Perry. (Bowers, Karl) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
16

Certificate of Service filed by Patrick L. McCrory regarding 14 Financial Disclosure Statement. (Stewart, William) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
17

Certificate of Service filed by Frank Perry regarding 15 Financial Disclosure Statement. (Bowers, Karl) (Entered: 05/25/2016)

May 25, 2016

May 25, 2016

PACER
18

Notice of Appearance filed by Gene C. Schaerr on behalf of Phil Berger, Tim Moore. (Schaerr, Gene) (Entered: 06/09/2016)

June 9, 2016

June 9, 2016

PACER

Set/Reset Motion and M&R Hearings AND Set/Reset Hearings

June 15, 2016

June 15, 2016

PACER
19

Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on Vanita Gupta on June 13, 2016., Summons Returned Executed by Certified Mail filed by Phil Berger, Tim Moore as to Vanita Gupta served on 6/13/2016, answer due 8/12/2016., SUMMONS Returned Executed by Phil Berger; Tim Moore. Vanita Gupta served on 6/13/2016, answer due 8/12/2016. (Duncan, Stuart) (Entered: 06/17/2016)

June 17, 2016

June 17, 2016

PACER
20

Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on Loretta E. Lynch on June 13, 2016., SUMMONS Returned Executed by Phil Berger, Tim Moore. Loretta E. Lynch served on 6/13/2016, answer due 7/4/2016., Summons Returned Executed by Certified Mail filed by Phil Berger; Tim Moore as to Loretta E. Lynch served on 6/13/2016, answer due 7/4/2016. (Duncan, Stuart) (Entered: 06/17/2016)

June 17, 2016

June 17, 2016

PACER
21

Affidavit of Service for Complaint filed by Phil Berger, Tim Moore served on United States Department of Justice on June 13, 2014., SUMMONS Returned Executed by Phil Berger, Tim Moore. United States Department of Justice served on 6/13/2016, answer due 7/4/2016., Summons Returned Executed by Certified Mail filed by Phil Berger; Tim Moore as to United States Department of Justice served on 6/13/2016, answer due 7/4/2016. (Duncan, Stuart) (Entered: 06/17/2016)

June 17, 2016

June 17, 2016

PACER
22

Notice of Appearance filed by Emily B. Nestler on behalf of All Defendants. (Nestler, Emily) (Entered: 06/20/2016)

June 20, 2016

June 20, 2016

PACER

Notice of Deficiency

June 20, 2016

June 20, 2016

PACER
23

Certificate of Service filed by Vanita Gupta, Loretta E. Lynch, United States Department of Justice regarding 22 Notice of Appearance of Emily B. Nestler. (Nestler, Emily) (Entered: 06/20/2016)

June 20, 2016

June 20, 2016

PACER
24

Notice of Appearance filed by Robert C. Stephens on behalf of Patrick L. McCrory. (Stephens, Robert) (Entered: 06/21/2016)

June 21, 2016

June 21, 2016

PACER
25

Minute Entry for proceedings held before District Judge Louise Wood Flanagan in New Bern: Telephonic Rule 16 Status Conference and Motion Hearing as to 7 MOTION to Consolidate Cases held on 6/21/2016. Counsel present for all parties. Court hears oral argument as to motion and procedural posture of the case. Matters taken under advisement. Written order to follow. (Court Reporter - David Collier) (Baker, C.) (Entered: 06/21/2016)

June 21, 2016

June 21, 2016

PACER
26

Notice of Appearance filed by Michael James on behalf of All Defendants. (James, Michael) (Entered: 06/21/2016)

June 21, 2016

June 21, 2016

PACER
27

ORDER denying 7 Motion to Consolidate Cases - On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16-CV-240-FL and case number 5:16-CV-245-FL to the Middle District. Signed by District Judge Louise Wood Flanagan on 6/29/2016. (Baker, C.) (Entered: 06/29/2016)

June 29, 2016

June 29, 2016

Clearinghouse

Remark - Case transferred from North Carolina Eastern District has been opened in North Carolina Middle District as case 1:16-cv-00844, filed 06/29/2016. (Baker, C.)

June 30, 2016

June 30, 2016

PACER

Remark

June 30, 2016

June 30, 2016

PACER
28

MOTION to Withdraw as Attorney filed by United States Department of Justice. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw) (James, Michael) (Entered: 07/15/2016)

July 15, 2016

July 15, 2016

Clearinghouse
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

PACER
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

PACER

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 18, 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

Available Documents:

Trial Court Docket

Complaint (any)

Non-settlement Outcome

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Access to public accommodations - governmental

Access to public accommodations - privately owned

Bathing and hygiene

Bathrooms

Buildings

Government services

School/University Facilities

School/University policies

Discrimination-area:

Disparate Impact

Disparate Treatment

Accommodation / Leave

LGBTQ+:

LGBTQ+

Discrimination-basis:

Gender identity

Sexual orientation

Type of Facility:

Government-run