Doyle v. Hogan

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CHRISTOPHER DOYLE, LPC, LCPC, :

Individually and on behalf of

his clients :

v. : Civil Action No. DKC 19-0190

:

LAWRENCE JOSEPH HOGAN, JR.,

et al. :

MEMORANDUM OPINION

Plaintiff Christopher Doyle (“Plaintiff”) initiated the

instant action against Defendants Lawrence J. Hogan, Jr. in his

official capacity as Governor of the State of Maryland and Brian

E. Frosh in his official capacity as the Attorney General of the

State of Maryland (collectively, “Defendants”) on January 18,

2019.

The complaint alleges that § 1-212.1 of the Health

Occupations Article of the Maryland Code violates Plaintiff’s:

(1) right to freedom of speech under the First Amendment (ECF

No. 1 ¶¶ 144-163); (2) clients’ First Amendment rights to receive

information (id. ¶¶ 164-172); (3) right to free exercise of

religion under the First Amendment (id. ¶¶ 173-189); (4) “right

to liberty of speech under Articles 10 and 40 of the Declaration

of Rights of the Constitution of Maryland” (id. ¶¶ 190-210); and

(5) “right to free exercise and enjoyment of religion under

Article 36 of the Declaration of Rights of the Constitution of

Maryland” (id. ¶¶ 211-227). Plaintiff seeks (1) “a preliminary

injunction enjoining Defendants and Defendants’ officers,

agents, servants, employees, and attorneys, and all other

persons who are in active concert or participation with them .

. . from enforcing [§ 1-212.1][;]” (2) “a permanent injunction

enjoining enforce[ement] of [§ 1-212.1;]” (3) “a declaratory

judgment declaring unconstitutional [§ 1-212.1] and Defendants’

actions in applying [§ 1-212.1] under the United States

Constitution and Constitution of Maryland[;]” (4) “nominal

damages for the violation of [his] constitutional rights[;]” (5)

“actual damages in an amount to be awarded at trial[;]” (6) a

declaration that “the rights and other legal relations with

subject matter here are in controversy so that such declaration

shall have the force and effect of final judgment[;]” (7) the

court’s continued jurisdiction after finding in Plaintiff’s

favor “for the purpose of enforcing th[e] [c]ourt’s order[;]”

and (8) “reasonable costs and expenses of this action, including

attorney’s fees, in accordance with 42 U.S.C. § 1988[.]” (ECF

No. 1, at 42-45). Presently pending are: (1) Plaintiff’s January

18, 2019 motion for preliminary injunction (ECF No. 2); (2)

Defendants’ March 8, 2019 motion to dismiss for failure to state

a claim (ECF No. 26); (3) a motion for leave to file an amicus

curiae brief in support of Defendants’ motion to dismiss and

opposition to Plaintiff’s motion for preliminary injunction (ECF

No. 28) filed by FreeState Justice, Inc. (“FreeState”) on March

15, 2019; (4) a motion for leave to file an amicus curiae brief

in support of Defendants’ opposition to Plaintiff’s motion for

preliminary injunction (ECF No. 31) filed by The Trevor Project

on March 15, 2019; (4) Plaintiff’s April 11, 2019 motion to

compel (ECF No. 44); and (5) Plaintiff’s May 16, 2019 motion for

leave to file surreply in opposition to Defendant’s motion to

dismiss (ECF No. 58).

A hearing is scheduled for August 5-6 and will focus on

some aspects of the motion to dismiss, and the motion for a

preliminary injunction. Some of the other pending motions,

preliminary issues, and some of the arguments raised in the

motion to dismiss will be resolved in this memorandum opinion,

without a hearing. For the following reasons, FreeState’s motion

for leave to file amicus curiae will be granted, The Trevor

Project’s motion for leave to file amicus curiae will be granted,

Plaintiff’s motion for leave to file surreply will be granted,

and Plaintiff’s motion to compel will be denied without

prejudice.

I. Background

Defendant Hogan signed Senate Bill (“Senate Bill or SB”)

1028 on May 15, 2018. The law was codified as § 1-212.1 of the

Health Occupations Article of the Maryland Code and took effect

on October 1, 2018. (ECF No. 1-1, at 1, 6). § 1-212.1(b)

prohibits mental health or child care practitioners from

engaging in conversion therapy, defined by § 1-212.1(a)(2)(i) as

“a practice or treatment . . . that seeks to change an

individual’s sexual orientation or gender identity[,]” with

minor clients. § 1-212.1(a)(1)(2)(ii) states that “‘conversion

therapy’ includes any effort to change the behavioral expression

of an individual’s sexual orientation, change gender expression,

or eliminate or reduce sexual or romantic attractions or feelings

toward individuals of the same gender.”

Under § 1-212.1, mental health and child care practitioners

may practice therapy with minors that “provides acceptance,

support, and understanding, or the facilitation of coping,

social support, and identity exploration and development,

including sexual orientation-neutral interventions to prevent or

address unlawful conduct or unsafe sexual practices.” However,

such therapy may not “seek to change sexual orientation or gender

identity.” MD. CODE, Conversion Therapy, § 1-

212.1(a)(1)(2)(iii). § 1-212.1(c) states that practitioners in

violation of the statute “shall be considered to have engaged in

unprofessional conduct and shall be subject to discipline by a

certain licensing or certifying board.”

§ 1-212.1(a)(3) defines “mental health or child care

practitioner[s]” as physicians, professional counselors or

therapists, psychologists, social workers or residential child

care program professionals licensed or certified in the State of

Maryland, and “[a]ny other practitioner licensed or certified

under [the Health Occupations Article of the Code of Maryland]

who is authorized to provide counseling by the practitioners

licensing or certifying board.” According to Defendants, § 1-

212.1 permits practitioners to (1) communicate with the public

about conversion therapy; (2) express their views about

conversion therapy to any person, including minor and adult

clients; (3) recommend conversion therapy to any person,

including minor and adult clients; (4) administer conversion

therapy to clients over the age of 18; and (5) refer minor

clients to unlicensed counselors and religious leaders for the

purposes of undergoing conversion therapy. (ECF No. 26-1, at

3).

To conclude that sexual orientation change efforts (“SOCE”)

threaten the physical and psychological well-being of minors,

the Maryland legislature relied on research, conclusions and

statements by the American Psychological Association, American

Psychiatric Association, American Medical Association Council on

Scientific Affairs, National Association of Social Workers,

American Counseling Association Governing Council, American

School Counselor Association, American Psychoanalytic

Association, American Academy of Child and Adolescent

Psychiatry, American Association of Sexuality Educators,

Counselors, and Therapists, Pan American Health Organization,

American College of Physicians, and the Pediatrics journal. (ECF

No. 1-1, at 4). Much of the information that the legislature

relied on discusses the efficacy, or lack thereof, of conversion

therapy and explains that the practice may lead to depression or

even suicide. For example, the American Psychological

Association’s 2009 report on sexual orientation change efforts

defines SOCE as “methods that aim to change a same-sex sexual

orientation (e.g., behavioral techniques, psychoanalytic

techniques, medical approaches, religious and spiritual

approaches) to hetereosexual[,]” (ECF No. 1-2, at 20 n.5) and

concludes that:

sexual orientation change efforts can pose

critical health risks to lesbian, gay, and

bisexual people, including confusion,

depression, guilt, helplessness,

hopelessness, shame, social withdrawal,

suicidal ideations, substance abuse,

stress, disappointment, self-blame,

decreased self-esteem and authenticity to

others, increased self-hatred, hostility

and blame toward parents, feelings of anger

and betrayal, loss of friends and potential

romantic partners, problems in sexual and

emotional intimacy, sexual dysfunction,

high-risk sexual behaviors, a feeling of

being dehumanized and untrue to self, a loss

of faith, and a sense of having wasted time

and resources.

(ECF No. 1-1, at 1). Concerned about the negative effects

conversion therapy may have on children during and after

receiving the treatment, the “Maryland General Assembly passed,

and the Governor signed, SB 1028 to protect Maryland children

from harm[.]” (ECF No. 53, at 1).

Plaintiff is a “psychotherapist who is licensed to practice

mental health counseling in Maryland.” (ECF No. 1, at 5).

Plaintiff currently acts as a mental health therapist for Patrick

Henry College in Purcelville, VA, executive director for the

Institute for Healthy Families in the Washington, D.C. area (the

“Institute”), and clinical director and licensed counselor for

Northern Virginia Christian Counseling. (ECF Nos. 53-2, at 2,

p. 9 & 1, at 20). Plaintiff asserts that he “has devoted most

of his professional life to providing counseling to young people

and their parents who are seeking help for unwanted same-sex

attractions[.]” (ECF No. 1, at 21).

II. Motions for Leave to File Briefs as Amici Curiae

FreeState is a legal advocacy organization that seeks to

improve the lives of low-income lesbian, gay, bisexual,

transgender, and queer (“LGBTQ”) people in Maryland. (ECF No.

28, at 1). FreeState contends that it “has demonstrated a

special interest in the outcome of the suit” and “represents

large constituencies of individuals which have a vested

interest” because it “played an integral role in advocating for

the passage and subsequent enactment” of § 1-212.1. (Id., at 2)

(internal quotations omitted). Similarly, The Trevor Project

states that it is the nation’s largest LGBTQ youth crisis

intervention and suicide prevention organization. Some of the

individuals The Trevor Project serves were treated with

conversion therapy or belong to families interested in

compelling them to undergo conversion therapy. (ECF No. 31, at

2). The Trevor Project contends that it “has a special interest

in this litigation and can offer . . . an additional, unique

perspective on the relevant facts and law[] based on what it has

learned firsthand from the LGBTQ youth it serves.” (ECF No. 31,

at 1). Both parties also point out that several other district

courts analyzing the constitutionality of similar laws that ban

conversion therapy have “liberally granted leave to file amicus

curiae briefs[.]” (ECF Nos. 28, at 2 & 31, at 5).

Plaintiff opposes the proposed amici curiae, arguing that

their proposed briefs are neither useful nor timely. (ECF No.

37, at 2). As for usefulness, Plaintiff disputes the relevance

of a study article appended to FreeState’s proposed brief and

argues that, based on a 2014 public statement by a FreeState’s

predecessor organization Equality Maryland, the organization

actually believes § 1-212.1 is unnecessary. (Id., at 3-5).

Plaintiff adds that The Trevor Project’s discussion about the

negative effects conversion therapy may have on parent-child

relationships is discredited by Defendants’ response to

Plaintiff’s request for admissions. As for timeliness,

Plaintiff states that the amici curiae “proffer information

months after the counseling ban” and believes acceptance of the

amicus briefs “will disrupt the current preliminary injunction

proceedings.” Finally, Plaintiff argues that the factual

material included in The Trevor Project’s proposed brief creates

an “ex post facto evidentiary record to bolster Maryland’s

counseling ban enactment.” (Id., at 8).

There is no Federal Rule of Civil Procedure that applies to

motions for leave to appear as amicus curiae in a federal

district court. District courts therefore have discretion

whether to grant or deny such leave and often look for guidance

to Rule 29 of the Federal Rules of Appellate Procedure, which

applies to amicus briefs at the federal appeals level. See,

e.g., Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136

(D.D.C. 2008); Tafas v. Dudas, 511 F.Supp.2d 652, 660 (E.D.Va.

2007); Bryant v. Better Bus. Bureau of Greater Md., Inc., 923

F.Supp. 720, 728 (D.Md. 1996); Washington Gas Light Co. v. Prince

George’s County Council, Civ. Action No. 08-cv–0967-DKC, 2012 WL

832756, at *3 (D.Md. Mar. 9, 2012). Rule 29 indicates that amici

should state “the reason why an amicus brief is desirable and

why the matters asserted are relevant to the disposition of the

case.” Fed.R.App.P. 29(b)(2). As noted by Judge Davis in

Bryant, “[t]he aid of amici curiae has been allowed at the trial

level where they provide helpful analysis of the law, they have

a special interest in the subject matter of the suit, or existing

counsel is in need of assistance.” Bryant, 923 F.Supp. at 728

(citing Waste Mgmt. of Pa., Inc. v. City of York, 162 F.R.D. 34,

36 (M.D.Pa. 1995)). “A motion for leave to file an amicus curiae

brief, however, should not be granted unless the court ‘deems

the proffered information timely and useful.’” Id. (quoting Yip

v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J. 1985), aff’d, 782 F.2d

1033 (3d Cir. 1986), and aff’d sub nom. Appeal of Yip, 782 F.2d

1033 (3d Cir. 1986)).

FreeState and The Trevor Project have each demonstrated a

special interest in the outcome of the suit. The Trevor

Project’s memorandum provides a separate, experiential

perspective of conversion therapy and the issues surrounding it

and FreeState’s memorandum provides a helpful analysis of § 1-

212.1 as a reasonable regulation of a particular mental health

treatment. Additionally, Plaintiff’s arguments in opposition to

the proposed amici curiae are without merit. Plaintiff’s

argument that FreeState actually agrees with Plaintiff’s

position on § 1-212.1 is speculative and, therefore,

unpersuasive. To the extent that The Trevor Project’s brief is

undermined by Defendants’ admissions, a single discrepancy fails

to frustrate The Trevor Project’s proposed amicus brief in its

entirety. Furthermore, both proposed amici filed their briefs

shortly after Defendants filed their motion to dismiss and

opposition to Plaintiff’s motion for preliminary injunction,

providing ample time for their review and consideration. Thus,

Plaintiff’s timeliness objections are similarly unconvincing.

The proposed amicus briefs also comply with the requirements of

United States District Court for the District of Maryland

Standing Order 2018-07. Accordingly, the motions for leave to

file brief as amicus curiae will be granted and the amicus briefs

will be considered.

III. Motion to Compel

Plaintiff argues that, “when [he] attempted to take

Defendants’ Rule 30(b)(6) deposition on March 28, 2019,

Defendants either refused to answer dozens of questions on the

basis of ‘legislative privilege,’ or their designated witness

was unprepared and could not answer any of numerous specific

questions as to how Defendants interpret, apply or enforce [§ 1-

212.1].” (ECF No. 38, at 1). Thus, under Fed.R.Civ.P. 37(a)(1),

Plaintiff requests “an order compelling Defendants to provide a

Rule 30(b)(6) deposition witness properly prepared and able to

answer [his] questions concerning Defendants’ positions,

interpretations, understanding, application, and enforcement of

[§ 1-212.1].” (ECF No. 44, at 1). Plaintiff also requests “an

order compelling Defendants to produce a properly prepared Rule

30(b)(6) designee to answer Plaintiffs’ deposition questions

concerning Defendants’ consideration of less speech-restrictive

alternatives to [§ 1-212.1].” (Id.).

In response, Defendants explain that, after receiving

Plaintiff’s notice of deposition, they arranged a designee to

attend the deposition and fully answer Plaintiff’s questions.

(ECF No. 52, at 1-2). Defendants argue that the designee spent

ample time preparing for the deposition and answered Plaintiff’s

questions “on allegations of harm related to conversion therapy,

possible amendments to the bill that were considered and adopted

by the legislature, testimony presented at the committee

hearings on the bill, and the public conclusions made by the

legislature.” (Id., at 4-10). Finally, Defendants assert that

the designee was entitled to assert legislative privilege when

Plaintiff’s “deposition questions inquired into legislative

intent[.]” (Id., at 12).

Rule 30(b)(6) provides that persons designated to represent

an organization “must testify as to matters known or reasonably

available to the organization.” The rule “requires a good faith

effort . . . to find out the relevant facts—to collect

information, review documents and interview employees with

personal knowledge[.]” Wilson v. Lakner, 228 F.R.D. 524, 528

(D.Md. 2005). “As a corollary, depending on the nature and

extent of the obfuscation, the testimony given by [a]

nonresponsive deponent (e.g., ‘I don’t know’) may be deemed

binding on the corporation so as to prohibit it from offering

contrary evidence at trial.” Dorsey v. TGT Consulting, LLC, 888

F.Supp.2d 670, 685 (D.Md. 2012).

Here, the arguments advanced in support of Plaintiff’s

request are unpersuasive. Defendants provided a designee, the

Director of Health Occupations Boards and Commissions, with

knowledge about § 1-212.1. In preparation for the deposition,

the designee spent about 7 hours reviewing documents and speaking

with lawyers in the Maryland Attorney General’s office. (ECF

No. 45-1, at 23-24). Finally, Plaintiff’s frustration with the

designee’s invocation of legislative privilege here does not

demonstrate noncompliance with Rule 30(b)(6). The designee’s

testimony indicates that she made “good faith efforts to prepare”

and “rendered substantial testimony concerning the subject area

of [her] designation[.]” Wilson, 228 F.R.D. at 530 (internal

quotations removed). Thus, Plaintiff’s arguments do not

indicate that additional designees are necessary at this time.

Accordingly, Plaintiff’s motion to compel will be denied.

IV. Motion for Leave to File Surreply

Plaintiff argues that his proposed surreply to Defendants’

motion to dismiss must be accepted because he must be provided

with and have an opportunity to address the discovery evidence

Defendants rely on in their reply. (ECF No. 58, at 1). According

to Plaintiff, Defendants’ reply “argue[s], for the first time,

that discovery evidence supports dismissal of Plaintiff’s claims

for lack of standing” and relies on “passages of Plaintiff’s

deposition testimony that w[ere] not available when Defendants’

Motion to Dismiss was filed.” (Id.) Thus, Plaintiff’s surreply

requests permission “to argue from discovery evidence, including

all of [his] deposition testimony[.]” (Id. (emphasis omitted)).

Under Local Rule 105.2(a), “[u]nless otherwise ordered by

the Court, surreply memoranda are not permitted to be filed.” A

surreply may be permitted “when the moving party would be unable

to contest matters presented to the court for the first time in

the opposing party’s reply.” Khoury v. Meserve, 268 F.Supp.2d

600, 605 (D.Md. 2003) (citation omitted). By contrast, “[a]

motion for leave to file a surreply may be denied when the matter

addressed in the reply is not new.” Marshall v. Capital View

Mut. Homes, No. 12–cv-3109-RWT, 2013 WL 3353752, at *3 (D.Md.

July 2, 2013) (citation omitted).

By way of background, Defendants’ motion to dismiss argues

that Plaintiff lacks standing. Specifically, Defendants state

that Plaintiff does not allege an injury-in-fact, or “‘[]

intention to engage in a course of conduct arguably affected

with a constitutional interest, but proscribed by statute’ and

that ‘there exists a credible threat of prosecution

thereunder.’” (ECF No. 26-1, at 7) (quoting Davison v. Randall,

912 F.3d 666, 678 (4th Cir. 2019)). Plaintiff’s opposition to

Defendants’ motion to dismiss argues that Plaintiff has standing

because, due to § 1-212.1, he may have to halt counseling with

five Maryland minor clients he is treating for “unwanted same-

sex attractions and/or gender identity conflicts.” (ECF No. 47,

at 3) (internal quotation omitted). Defendants’ reply repeats

and elaborates on their original standing argument, adding that

Plaintiff’s deposition and other discovery documents further

demonstrate Plaintiff’s lack of standing. (ECF No. 53, at 1-

5). Attached to Defendants’ reply are excerpts of Plaintiff’s

deposition, Plaintiff’s answers to interrogatories, and copies

of informed consent forms used by Plaintiff at the Institute for

Healthy Living. (ECF Nos. 53-2; 53-3; 53-4; 53-5; 53-6).

Although the standing argument in Defendants’ reply is not

novel, Defendants do augment their argument with new evidence by

relying on Plaintiff’s discovery responses. As a result,

Plaintiff’s deposition and the standing arguments in Plaintiff’s

proposed surreply that advance new conclusions based on the

deposition will be considered in determining whether Plaintiff

has standing and the motion for leave to file surreply will be

granted.

V. Motion to Dismiss

A. Defendants’ Incorporation by Reference

Defendants filed an opposition in response to Plaintiff’s

motion for preliminary injunction on March 8, 2019. (ECF No.

25). In their motion to dismiss, Defendants rely on and

incorporate by reference some of the arguments they advanced in

their opposition to Plaintiff’s motion for preliminary

injunction, which assert that Plaintiff “has not state[d] a claim

for violation of his free speech rights as a matter of law.”

(ECF No. 26-1, at 2 n.1). As a preliminary matter, Plaintiff

disputes Defendants’ incorporation by reference. (ECF No. 47,

at 10-11). Plaintiff’s response to Defendants’ motion to dismiss

and motion for leave to file surreply conclude that Defendants’

incorporation indicates waiver of their defense because

Defendants “only perfunctorily and cursorily referenced their

defense of failure to state a claim as to [Plaintiff]’s [f]ree

[s]peech claim[.]” (Id.; see also ECF No. 58, at 11).

Defendants’ reply argues instead that Federal Rule of Civil

Procedure 10(c) allows them to incorporate by reference their

arguments that Plaintiff cannot establish a violation of his

free speech rights. (ECF No. 53, at 9).

Rule 10(c) provides that “[a] statement in a pleading may

be adopted by reference elsewhere in the same pleading or in any

other pleading or motion.” Although Rule 10 instructs the form

of pleadings, “[a] few federal courts have allowed defendants to

incorporate by reference to prior motions made in the action.”

5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.

Civ. § 1326 (4th ed. 2019). This court and other federal district

courts have allowed incorporation by reference under similar

circumstances. See, e.g., NVR, Inc. v. Harry A. Poole, Sr.

Contractor, Inc., No. 14-cv-241-ELH, 2015 WL 1137739, at *2 n.5

(D.Md. Mar. 13, 2015) (considering arguments incorporated from

defendant’s previous motion to dismiss into defendant’s newly

filed reply to plaintiff’s response to defendant’s motion to

dismiss or, in the alternative, motion for more definite

statement); Levy v. Wexford Health Sources, Inc., No. 14-cv-

3678-TDC, 2016 WL 865364, at *6 (D.Md. Mar. 7, 2016) (permitting

parties to “incorporate by reference arguments made in their

original briefs” if plaintiff was required to re-file her motion

for partial summary judgment); Lowden v. William M. Mercer, Inc.,

903 F.Supp. 212, 216 (D.Mass. 1995) (stating that “it is

appropriate to incorporate by reference an argument made in a

motion to dismiss an original complaint despite the subsequent

amendment of the complaint.”). Because Plaintiff’s arguments in

favor of prohibiting incorporation are without merit, the free

speech arguments advanced in Defendants’ opposition to

Plaintiff’s motion for preliminary injunction will be evaluated

as part and parcel of Defendants’ motion to dismiss.

B. Standing

The issue of standing may be challenged on a motion to

dismiss for lack of subject matter jurisdiction under

Fed.R.Civ.P. 12(b)(1). “The plaintiff has the burden of proving

that subject matter jurisdiction exists.” Evans v. B.F. Perkins

Co., 166 F.3d 642, 647 (4th Cir. 1999). When deciding Rule

12(b)(1) motion, the court “may consider evidence outside the

pleadings” to help determine whether it has jurisdiction over

the case before it. Richmond, Fredericksburg & Potomac R.R. Co.

v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also

Evans, 166 F.3d at 647. The court should grant a Rule 12(b)(1)

motion “only if the material jurisdictional facts are not in

dispute and the moving party is entitled to prevail as a matter

of law.” Richmond, 945 F.2d at 768 (citing Trentacosta v.

Frontier P. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987)).

Any plaintiff seeking to invoke the jurisdiction of a

federal court must establish standing. See, e.g., Allen v.

Wright, 468 U.S. 737, 750—51 (1984); S. Walk at Broadlands

Homeowner’s Ass’n Inc. v. Openband at Broadlands, LLC, 713 F.3d

175, 185 (4th Cir. 2013). The doctrine of standing consists of

two distinct “strands”: constitutional standing pursuant to

Article III and prudential standing. See Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 11 (2004). The requirements for

constitutional standing reflect that Article III “confines the

federal courts to adjudicating actual ‘cases’ and

‘controversies.’” Allen, 468 U.S. at 750; see also Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1993) (“[S]tanding is

an essential and unchanging part of the case-or-controversy

requirement of Article III[.]”). “[A plaintiff] must, in other

words, show that the facts alleged present the court with a ‘case

or controversy’ in the constitutional sense and that [he] is a

proper plaintiff to raise the issues sought to be litigated.”

Linda R.S. v. Richard D., 410 U.S. 614, 616 (1973). To establish

Article III standing, a plaintiff must demonstrate that:

(1) [she] has suffered an “injury in fact”

that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly

traceable to the challenged action of the

defendant; and (3) it is likely, as opposed

to merely speculative, that the injury will

be redressed by a favorable decision.

Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011) (quoting Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 180-81 (2000)). A plaintiff can show injury-in-fact

in two ways:

First, there is a sufficiently imminent

injury in fact if plaintiff[] allege[s] “an

intention to engage in a course of conduct

arguably affected with a constitutional

interest, but proscribed by a statute, and

there exists a credible threat of

prosecution thereunder.” Babbitt v. Farm

Workers Nat’l Union, 442 U.S. 289, 298

(1979). “[I]t is not necessary that [a

plaintiff] first expose himself to actual

arrest or prosecution to be entitled to

challenge a statute that he claims deters

the exercise of his constitutional rights.”

Steffel v. Thompson, 415 U.S. 452, 459

(1974). Separately, there is an ongoing

injury in fact if plaintiff[] make[s] a

“sufficient showing of self-censorship,

which occurs when a claimant is chilled from

exercising his right to free expression.”

Cooksey v. Futrell, 721 F.3d 226, 235 (4th

Cir. 2013) (internal quotation marks

omitted).

Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018).

Defendants argue that Plaintiff cannot demonstrate injury-

in-fact because he has minimal connections to the state of

Maryland and “fails to allege that he performs or intends to

perform conversion therapy on minor clients in Maryland.” (ECF

No. 26-1, at 8). Although Defendants accurately point out that

Plaintiff’s complaint and motion for preliminary injunction do

“not specifically allege that he has any [client]s in Maryland”

(id.), Plaintiff’s answers to Defendants’ interrogatories

clarify that Plaintiff provides therapy to at least two minors

who reside in Maryland and formerly provided counseling to at

least three other minor clients who reside in Maryland (ECF No.

53-3, at 3).1 Additionally, Plaintiff testified that he has used

his Maryland therapeutic license (ECF No. 58-1, at 137) to treat

minor clients in Maryland over the past three years (id., at

1 Plaintiff’s interrogatory responses indicate that he uses

audio visual equipment to conduct much of the individual

counseling with these clients. However, Plaintiff is still

subject to Maryland law even if Plaintiff himself is not

physically located in Maryland when treating his Maryland

clients. See Craig P. Tanio et al., Maryland Telemedicine Task

Force: Final Report, Appendix R: Physician Licensing in Maryland

http://mhcc.maryland.gov/mhcc/pages/home/workgroups/documents/

tlmd/tlmd_ttf_rpt_102014.pdf (“Physicians and other

practitioners delivering telemedicine services must abide by

state licensure and scope of practice laws and requirements in

the state where the patient receives services.”).

133) and wishes to continue this practice (id.). Thus, Plaintiff

has demonstrated that he is a “mental health or child care

practitioner” actively treating clients in Maryland. §1-212.1.

Defendants next argue that, even if Plaintiff demonstrates

that he counsels clients in Maryland, he is not injured by § 1-

212.1 because he does not actually perform conversion therapy.

(ECF No. 53, at 2). Defendants rely on Plaintiff’s testimony

about his counseling practice, interrogatory answers and the

consent forms he uses when practicing at the Institute for

Healthy Families. (ECF Nos. 53-2; 53-3; 53-4; 53-5; 53-6). The

forms state that “[Plaintiff] and the Institute for Healthy

Families do[] not practice reparative therapy, reorientation

therapy, conversion therapy, or any type of sexual orientation

change effort (SOCE) therapy.” (ECF No. 53-6, at 2). The forms

further state that clients seeking treatment for sexual or gender

identity conflicts will receive “sexual/gender identity-

affirming therapy/coaching.” (Id.). Plaintiff’s deposition

testimony states, in relevant part, that he “define[s]

conversion therapy as a practice that is expressly trying to

change a client from gay to straight” and affirms that he does

not “engage in that particular kind of therapy.” (ECF No. 53-

2, at 5, p. 20). Plaintiff explained:

Essentially, the work that I do, I describe

it as sexual and gender identity affirming

therapy, and what I explain to clients is

that they’re in the driver’s seat, that I’m

not imposing a goal on their work. I have

a duty and a right to my clients to work

with what they want to work on, and clients

that may be open to sexual fluidity or

change, I’m open to that client’s goal.

(Id., at 6, p. 22). Finally, Defendants argue that Plaintiff

has not shown a credible threat of prosecution because “[h]e has

not been the subject of complaints to the Maryland Board of

Professional Counselors and Therapists . . . and his only

communications with the Board occurred in connection with

renewing his license.” (ECF No. 53, at 5).

Plaintiff responds that relevant portions of his complaint

demonstrate how he is injured by § 1-212.1, including:

As a psychotherapist licensed in Maryland

who engages in counseling to eliminate,

reduce, or resolve unwanted same-sex

attractions, behaviors, or identity,

Plaintiff is subject to potential

professional discipline under [§ 1-212.1].

[§ 1-212.1] prohibits Plaintiff from

engaging in counseling to eliminate, reduce,

or resolve unwanted same-sex attractions,

behaviors, or identity with his minor

clients, and requires Plaintiff to

discontinue ongoing counseling despite the

clients’ and their parents’ consent and

requests to continue, or face penalties

under the statute.

(ECF No. 47, at 3) (quoting ECF No. 1, at 26). According to

Plaintiff, “‘[a]ccepting as true all of the factual allegations

contained in the complaint and drawing all reasonable inferences

in favor of the plaintiff,’ . . . it is clear that [he] is

challenging [§ 1-212.1] because it bans his Maryland counseling

with Maryland clients.” (ECF No. 47, at 4) (quoting Hall v.

DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017), cert. denied,

138 S.Ct. 635 (2018) (internal marks omitted)). Plaintiff’s

surreply adds that, although Plaintiff testified that he does

not engage in conversion therapy, he also testified that he

currently treats minors with “gender identity confusion” who

“sometimes identify a goal that they have for themselves to

change or reduce or eliminate the unwanted attraction or

confusion.” (ECF No. 58-1, at 134-35). Where clients manifest

this intent, Plaintiff “wish[es] to provide them with the

counseling that they seek in order to accomplish their self-

chosen goals.” (Id., at 135-36). In conclusion, Plaintiff

stated that § 1-212.1 “determines that the work that [he] do[es]

is called conversion therapy[.]” (Id., at 136). Finally,

Plaintiff adds that his practice of conversion therapy qualifies

as prohibited behavior under § 1-212.1 even when the “change

goal” originates with his minor client. (ECF No. 58, at 6).

Although portions of Plaintiff’s testimony undermine

whether Plaintiff practices conversion therapy as defined by §

1-212.1, Plaintiff has demonstrated standing. Plaintiff

testified, after reading the definition of conversion therapy

provided in the senate bill that preceded § 1-212.1, that he

does not engage in conversion therapy. (ECF No. 58-1, at 70).

Plaintiff added that he “affirm[s] [the client’s] identity as

they state[.]” (Id., at 73). However, Plaintiff explained that

the treatments used to affirm a client’s identity include

“practices and techniques . . . that may have an effect on a

client’s sexual identity, gender identity, attractions, [and]

behaviors[.]” (Id., at 71-72). Plaintiff’s treatment methods

may simultaneously affirm a client’s identity while “help[ing]

them understand or resolve certain unwanted attractions and

behaviors” (id., at 74) because “a [client]’s sexual or gender

identity may not be the same as their attractions [and]

behaviors” (id., at 72). Plaintiff “has experienced a non-

speculative and objectively reasonable chilling effect” due to

§ 1-212.1 and, thus, has demonstrated standing. Cooksey v.

Futrell, 721 F.3d 226, 236 (4th Cir. 2013).

C. Third-Party Standing

Plaintiff’s complaint, filed “individually and on behalf of

his clients[,]” alleges that § 1-212.1 harms his clients because

the law “prevents [them] from receiving counseling to eliminate,

reduce, or resolve unwanted same-sex attractions, behaviors, or

identity and deprives them of the opportunity even to obtain

information about such counseling from [licensed mental health

professionals].” (ECF No. 1, at 33). Defendants argue that

Plaintiff does not have third-party standing because his minor

clients “are not hindered in their ability to represent their

own interests.” (ECF No. 26-1, at 9).

Generally, a plaintiff “must assert his own legal rights

and interests, and cannot rest his claim to relief on the legal

rights or interests of third parties.” Warth v. Seldin, 422

U.S. 490, 499 (1975). However, “there may be circumstances where

it is necessary to grant a third party standing to assert the

rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129-30

(2004). The United States Court of Appeals for the Fourth

Circuit summarized the test for third-party standing in Freilich

v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215 (4th Cir.

2002):

Even if a plaintiff satisfies Article III

standing requirements, “[f]ederal courts

must hesitate before resolving a

controversy, even one within their

constitutional power to resolve, on the

basis of the rights of third persons not

parties to the litigation.” Singleton v.

Wulff, 428 U.S. 106, 113 (1976). To

overcome the prudential limitation on third-

party standing, a plaintiff must

demonstrate: (1) an injury-in-fact; (2) a

close relationship between [him]self and the

person whose right []he seeks to assert; and

(3) a hindrance to the third party’s ability

to protect his or her own interests. Powers

v. Ohio, 499 U.S. 400, 410–11 (1991).

There is little doubt that, if Plaintiff’s minor clients

would like Plaintiff to treat them using conversion therapy,

they are injured by § 1-212.1. Likewise, Plaintiff’s close

relationship with his minor clients is evidenced by his ongoing

provision of counseling services. However, Plaintiff fails to

show how his clients are unable to protect their own interests

by independently bringing suit. Plaintiff asserts that his minor

clients cannot file suit because they face “embarrassment,

stigmatization, and opprobrium[.]” (ECF No. 47, at 6) (quoting

ECF No. 1, at 29). However, the court “cannot simply assume

that every” potentially embarrassed and stigmatized minor client

“is incapable of asserting his or her own claims.” Freilich,

313 F.3d at 215. “[T]hird parties themselves usually will be

the best proponents of their own rights,” and Plaintiff has

provided no concrete evidence that these alleged factors prevent

his minor clients from bringing their claims. Singleton, 428

U.S. at 114. Additionally, Plaintiff’s minor clients may file

pseudonymously to ensure their information remains private while

proceeding on their own behalf. See, e.g., Otto v. City of Boca

Raton, Fla., 353 F.Supp.3d 1237, 1247 (S.D.Fla. 2019) (“Further,

the Court notes . . . that minor clients have been able to file

suit pseudonymously in other cases challenging bans on SOCE.”)

(internal quotations and citation omitted); Doe v. Christie, 33

F.Supp.3d 518, 520 (D.N.J. 2014), aff’d sub nom. Doe ex rel. Doe

v. Governor of N.J., 783 F.3d 150 (3d Cir. 2015); Pickup v.

Brown, 42 F.Supp.3d 1347, 1349 (E.D.Cal. 2012), aff’d, 728 F.3d

1042 (9th Cir. 2013), and aff’d, 740 F.3d 1208 (9th Cir. 2014).

Accordingly, Plaintiff does not possess third party standing to

bring claims on behalf of his minor clients. As a result,

Plaintiff’s claim that § 1-212.1 violates his clients’ First

Amendment right to receive information, asserted only on behalf

of his minor clients, will be dismissed.

D. Eleventh Amendment Immunity

Defendants argue that, under the Eleventh Amendment, “the

Governor and Attorney General, the only two [D]efendants, are

immune from this suit and should be dismissed as defendants.”

(ECF No. 25, at 14). Defendants recognize that private

individuals may sue “[s]tate officials for prospective or

declaratory relief for ongoing violations of federal law[,]”

(ECF No. 26-1, at 11) (quoting Weigel v. Maryland, 950 F.Supp.2d

811, 831 (D.Md. 2013)) (internal quotation marks omitted) but

add that Defendants are not included under this Eleventh

Amendment exception because they are not specifically

responsible for enforcing § 1-212.1. (Id., at 12). Plaintiff

responds that Defendants are excepted from Eleventh Amendment

immunity because § 1-212.1 “suggests department- or board-level

officials are among the class of state officials who may be the

proper defendants by virtue of explicit authority in” the law.

(ECF No. 47, at 9).

Defendants’ argument will be reviewed under Rule 12(b)(1).

The Fourth Circuit has not decided whether sovereign immunity is

grounds for dismissal for failure to state a claim under Rule

12(b)(6) or for lack of subject matter jurisdiction under Rule

12(b)(1). Judges in this district favor analysis under Rule

12(b)(1) because immunity functions “as a block on the exercise

of that jurisdiction[.]” Gross v. Morgan State Univ., 308

F.Supp.3d 861, 865 (D.Md. 2018) (quoting Biggs v. Meadows, 66

F.3d 56, 60 (4th Cir. 1995)) (internal quotation marks omitted).

“A motion to dismiss based on lack of subject matter jurisdiction

pursuant to [] Rule . . . 12(b)(1) raises the question of whether

the court has the competence or authority to hear the case.”

Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md. 2005). The

plaintiff bears the burden of establishing subject matter

jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982);

see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir.

2009) (noting challenge may be either facial, i.e., “a complaint

fails to allege facts upon which subject matter jurisdiction can

be based[,]” or factual, i.e., “the jurisdictional allegations

of the complaint [are] not true”) (alteration in original)

(internal citations and quotation marks omitted). Where

defendants raise the defense of sovereign immunity, they make a

facial challenge to the complaint. See, e.g., Weiss v. Price,

No. 17-cv-1127-ELH, 2018 WL 1156770, at *2 (D.Md. Mar. 5, 2018);

Downing v. Balt. City Bd. of School Comm’rs, No. 12-cv-1047-RDB,

2012 WL 6615017, at *3 (D.Md. Dec. 18, 2012). In a facial

challenge, “the facts alleged in the complaint are taken as true,

and the motion must be denied if the complaint alleges sufficient

facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d

at 192.

As noted by the Fourth Circuit in Lee–Thomas v. Prince

George’s County Public Schools, 666 F.3d 244, 248–49 (4th Cir.

2012):

Pursuant to the Eleventh Amendment, “[t]he

Judicial power of the United States shall

not be construed to extend to any suit in

law or equity, commenced or prosecuted

against one of the United States by Citizens

of another State.” U.S. Const. amend. XI.

The Supreme Court “has drawn on principles

of sovereign immunity to construe the

Amendment to establish that an unconsenting

State is immune from suits brought in

federal courts by her own citizens as well

as by citizens of another State.” Port

Auth. Trans–Hudson Corp. v. Feeney, 495 U.S.

299, 304 (1990) (internal quotation marks

omitted). The States’ immunity also extends

to “state agents and state

instrumentalities.” Regents of the Univ. of

Cal. v. Doe, 519 U.S. 425, 429 (1997). “The

Eleventh Amendment bar to suit is not

absolute,” however. Feeney, 495 U.S. at

304. There are three exceptions to that

constitutional bar.

First, “Congress may abrogate the States’

Eleventh Amendment immunity when it both

unequivocally intends to do so and acts

pursuant to a valid grant of constitutional

authority.” Bd. of Trustees of Univ. of

Ala. v. Garrett, 531 U.S. 356, 363 (2001)

(internal quotation marks and alterations

omitted). . . . Second, “the Eleventh

Amendment permits suits for prospective

injunctive relief against state officials

acting in violation of federal law.” Frew

ex rel. Frew v. Hawkins, 540 U.S. 431, 437

(2004). . . . Third, “[a] State remains free

to waive its Eleventh Amendment immunity

from suit in a federal court.” Lapides v.

Bd. of Regents of Univ. Sys. of Ga., 535

U.S. 613, 618 (2002).

To the extent that Plaintiff seeks damages for violation of his

constitutional rights, Defendants are entitled to Eleventh

Amendment immunity.

However, the second exception is also relevant here based

on Plaintiff’s request for injunctive relief. The exception,

originally detailed in Ex parte Young, 209 U.S. 123, 155-56

(1908), applies to “officers of the state[] [who] are clothed

with some duty in regard to the enforcement of the laws of the

state[.]” Excluded from the exception are “officers who have

only a general obligation to enforce all laws of the state and

who lack a ‘special relation’ to the specific law or action being

challenged.” Stinnie v. Holcomb, 734 F.App’x 858, 874 (4th Cir.

2018) (citation omitted). “This requirement ‘protects a state’s

Eleventh Amendment immunity while, at the same time, ensuring

that, in the event a plaintiff sues a state official in his

individual capacity to enjoin unconstitutional action, any

federal injunction will be effective with respect to the

underlying claim.’” Kobe v. Haley, 666 F.App’x 281, 299 (4th

Cir. 2016) (quoting McBurney v. Cuccinelli, 616 F.3d 393, 399

(4th Cir. 2010).

§ 1-212.1(c) itself states that practitioners in violation

of the statute “shall be subject to discipline by the mental

health or child care practitioner’s licensing or certifying

board.” § 1-212.1(e) adds that “The [Maryland] Department [of

Health] shall adopt regulations necessary to implement this

section.” As Defendants highlight, the text of § 1-212.1 awards

the statute’s disciplinary and regulatory maintenance to

specific bodies. However, the statute does not explicitly

prohibit oversight by the Maryland governor and attorney

general. Additionally, the governor “supervise[s] and direct[s]

the officers and units” in the State of Maryland Executive

Branch, including the Maryland Department of Health. MD. CODE,

State Government, § 3-302. Similarly, the attorney general “is

the legal adviser of and shall represent and otherwise perform

all of the legal work for each officer and unit of the State

government.” Id. § 6-106; see also Bostick v. Smoot Sand &

Gravel Corp., 154 F.Supp. 744, 756 (D.Md. 1957), judgment rev’d

on other grounds, 260 F.2d 534 (4th Cir. 1958) (“[I]t has not

been unusual for the Maryland Attorney General to render legal

opinions to agencies of the Federal government, and to include

them in his official reports.”). “The requirement is not a

stringent one, as the officer being sued need only “‘have some

connection with the enforcement of the act.’” Stinnie, 734

F.App’x at 875 (quoting Young, 209 U.S. at 157). “[I]t is not

even ‘necessary that such duty of enforcement be declared in the

same act which is to be enforced.’” Id. (quoting Young, 209

U.S. at 157). Thus, Defendants have failed to demonstrate that

issuing an injunction against them would be ineffective at

prohibiting enforcement of § 1-212.1.

V. Conclusion

For the foregoing reasons, FreeState’s motion for leave to

file amicus curiae will be granted, The Trevor Project’s motion

for leave to file amicus curiae will be granted, Plaintiff’s

motion for leave to file surreply will be granted, and

Plaintiff’s motion to compel will be denied without prejudice.

A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge