Hammons v. University of Maryland Medical System Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

JESSE HAMMONS

:

v. : Civil Action No. DKC 20-2088

UNIVERSITY OF MARYLAND MEDICAL :

SYSTEM CORPORATION, et al.

:

MEMORANDUM OPINION

Plaintiff Jesse Hammons, a transgender man, sought to undergo

a hysterectomy as part of his treatment for gender dysphoria.

Either he or his surgeon1 elected to schedule the surgery at the

University of Maryland St. Joseph Medical Center (“UMSJ,” or the

“Hospital”). UMSJ adheres to Catholic religious doctrine. Despite

initially authorizing the scheduling of the procedure, the

Hospital ultimately refused to authorize the procedure. Under

Catholic doctrine, the Hospital barred surgeries that resulted in

sterilization, such as a hysterectomy, except when their “direct

effect is the cure or alleviation of a present and serious

pathology and a simpler treatment is not available.” Plaintiff

asserts that his treating physicians determined that his surgery

1 Paragraph 2 of the Complaint alleges that Mr. Hammons’s

[unnamed] surgeon scheduled the procedure. But, ¶ 53 alleges that

“Mr. Hammons scheduled a hysterectomy . . . .” Thus, even though

Defendants put heavy emphasis on the surgeon as the “but for” cause

of Plaintiff’s injury in their motion and reply, it is not even

clear whether the surgeon selected the hospital or simply scheduled

the operation at the behest of Plaintiff.

was medically necessary under the relevant professional standards

of care. The Hospital ultimately cancelled the surgery — declaring

gender dysphoria was not a “sufficient medical reason” to justify

surgery in light of its sterilizing effects. As a result, about

six months later, plaintiff underwent a hysterectomy at a different

hospital.

Based on the Hospital’s unwillingness to permit the

hysterectomy, Mr. Hammons has filed suit against Defendants

University of Maryland Medical System Corporation (“UMMS”) as well

as UMSJ Health System, LLC (“UMSJ LLC”) and University of Maryland

St. Joseph Medical Center, LLC (“St. Joseph LLC,” originally

organized as “Northeastern Maryland Regional Health System, LLC”)

(collectively “Hospital LLCs”). St. Joseph LLC is a wholly owned

subsidiary of UMSJ LLC, which itself is a wholly owned subsidiary

of UMMS. According to plaintiff, the State of Maryland continues

to exercise authority and control over UMMS. (ECF 1, ¶ 20).

Plaintiff has brought a three-count complaint alleging that,

because UMMS is an arm of the state, Defendants impermissibly have

endorsed and entangled themselves with the Catholic religion and

discriminated on the basis of sex. He alleges that they violated:

the Establishment Clause of the First Amendment (Count I), the

Equal Protection Clause of the Fourteenth Amendment (Count II),

and § 1557 of the Affordable Care Act (“ACA”), 42 U.S.C § 18116(a),

as discrimination on the basis of sex. (Count III). (ECF No. 1).

He alleges that Defendants treated Mr. Hammons—as a man who is

transgender—differently from non-transgender patients who require

medically necessary hysterectomies for other medical conditions.

Presently pending is a motion to dismiss that complaint. (ECF

No. 39). The issues have been briefed, and the court now rules,

no hearing being deemed necessary. Local Rule 105.6. For the

following reasons, the motion to dismiss will be granted in part

and denied in part.

I. Background

The following facts are outlined in the complaint, including

references to information in the public domain. St. Joseph

Hospital was founded over a hundred years ago by the Sisters of

St. Francis of Philadelphia and operated as a private Catholic

hospital for most of its history. More recently, it was run by

Catholic Health Initiatives, which Plaintiff describes as a

“consortium” of three Catholic health care systems and ten

congregations. In 2012, the Hospital was in dire financial straits

and decided to put the facility up for sale. University of

Maryland Medical Center (“UMMS”) expressed interest but a

“sticking point” in the negotiations was whether the Hospital would

continue to be run as a “Catholic institution.” The Hospital,

prior to the sale, had operated according to the Catholic

Directives (“the Directives”), a series of ethical directives

created and published by the U.S. Conference of Catholic Bishops

and aimed at Catholics administering health care; the Catholic

Church forbade the sale without approval of the Archdiocese of

Baltimore and the Vatican, both of which were adamant that the

center continue to adhere to these tenets even after it divested

itself from any direct control or ownership of the Hospital. In

fact, Cardinal O’Brien publicly declared that the local Church

would “do everything possible in the months and years ahead” to

keep the Hospital operating as a Catholic center. UMMS ultimately

entered into a written agreement with the Catholic Church that the

Hospital would continue to operate under the Directives.

Ultimately, UMMS purchased the Hospital for over $200 million.

Plaintiff asserts that UMMS and its subsidiaries continue to

abide by the Directives, and they link directly to them on their

webpage “About UM SJMC [University of Maryland St. Joseph Medical

Center],” wherein UMMS holds this center out as a “Catholic acute

care hospital that observes the Ethical and Religious Directives

for Catholic Health Care Services.” (ECF No. 1, at 2 n.1) (quoting

http://www.umms.org/sjmc/about (last accessed July 16, 2020)).

The Directives include a number of core principals, including that

healthcare must “respect the sacredness of every human life from

the moment of conception until death.” What this meant in practice

is that the Directives prohibited a number of practices such as

“contraceptive interventions” that “have the purpose, whether as

an end or a means, to render procreation impossible.” In a similar

vein and at issue here, the Directives also declare that “[d]irect

sterilization of either men or women, whether permanent or

temporary, is not permitted.”

Critically, the Directives contain an exception: “Procedures

that induce sterility are permitted when their direct effect is

the cure or alleviation of a present and serious pathology and a

simpler treatment is not available.” The complaint also highlights

a later portion of the Directives, asserting, “The stated basis

for this rule is the Catholic teaching that Catholic health care

organizations are not permitted to engage in ‘immediate material

cooperation in actions that are intrinsically immoral, such as

abortion, euthanasia, assisted suicide, and direct

sterilization.’” (ECF No. 1, ¶ 3) (quoting the Directives at 19,

¶ 53 and 25, ¶ 70, which are available at

http://www.usccb.org/about/doctrine/ethical-and-religious-

directives/upload/ethical-religious-directives-catholic-health-

service-sixth-edition-2016-06.pdf (last accessed July 16, 2020)).

As a transgender man, Mr. Hammons sought to have a

hysterectomy “as a medically necessary treatment of gender

dysphoria.”2 A hysterectomy, the complaint explains, is “surgery

2 Plaintiff explains that this is “the diagnostic term for

the clinically significant emotional distress experienced as a

result of the incongruence of one’s gender with their assigned sex

and the physiological developments associated with that sex.

Gender dysphoria is a serious medical condition codified in the

Diagnostic and Statistical Manual of Mental Disorders (‘DSM-V’)

and International Classification of Diseases (‘ICD-10’). The

to remove a patient’s uterus” and is a sterilizing procedure: after

undergoing a hysterectomy, a patient can no longer become pregnant.

“Transgender men often require a hysterectomy as a gender-

affirming surgical treatment for gender dysphoria.” Plaintiff

argues that he met all the criteria under the “accepted standards

of care for treating dysphoria” published by the World Professional

Association for Transgender Health to receive a hysterectomy,3 and

his physicians recommended he receive one.

Plaintiff scheduled the surgery at UMSJ to take place on

January 6, 2020. To prepare for it he “underwent pre-operative

blood tests, an echocardiogram, and other health screenings with

his treating physician” and arranged for the operation to take

place “during a break from school” and he arranged to “to take off

time from work.”4 As the complaint explains, however:

Approximately 7–10 days before Mr. Hammons’s

surgery was scheduled to take place,

University of Maryland St. Joseph Medical

criteria for diagnosing gender dysphoria are set forth in the

DSM-V (302.85).” (ECF No. 1, at 15). Plaintiff treats the

“medically necessary” designation as presumptively and implicitly

satisfying the lone exception to the Directives’ general ban on

sterilizing operations – one that had “the direct effect” of curing

or alleviating “a present and serious pathology,” for which a

simpler treatment was “not available.”

3 These included, among other thing, documentation of

“[p]ersistent” gender dysphoria, twelve months of “continuous”

hormone therapy, and two referral letters from “qualified mental

health professionals.” (See ECF No. 1, ¶ 52 n.26).

4 It is not clear from the complaint if Mr. Hammons’ work

is school (i.e. he is a teacher), or he was both working and going

to school part-time.

Center’s Senior Vice President for Medical

Affairs and Chief Medical Officer, Gail

Cunningham, ordered the surgery canceled. Dr.

Cunningham told Mr. Hammons’s surgeon that he

could not perform Mr. Hammons’s hysterectomy

because the surgery conflicted with the

hospital’s Catholic religious beliefs and the

Catholic Directives.

(ECF No. 1, ¶ 56). Plaintiff alleges that Dr. Cunningham told his

surgeon that “according to University of Maryland St. Joseph

Medical Center’s religious beliefs, Mr. Hammons’s gender dysphoria

did not qualify as a sufficient medical reason to authorize the

procedure.” Dr. Cunningham also explained that “performing the

hysterectomy and removing an otherwise healthy organ would violate

the Catholic Directives’ command to preserve the ‘functional

integrity’” of the human body. While this purported reasoning was

therefore facially neutral as to Plaintiff’s gender identity, Mr.

Hammons argues the Directives themselves state, “[t]he functional

integrity may be sacrificed to maintain the health or life of the

person where no other morally permissible means is available.”

(Id., ¶ 58) (quoting the Catholic Directives, at 14, ¶ 29).

Following such a directive, Plaintiff asserts that surgeons at

UMSJ have removed “otherwise healthy tissue to prevent cancer or

other diseases.” Nonetheless, Dr. Cunningham informed Mr. Hammons

that UMSJ “did not consider Mr. Hammons’s gender dysphoria to be

a valid basis under the Catholic Directives to justify disrupting

the body’s ‘functional integrity.’”

When he found out about the cancellation of his surgery only

days before it was to take place, Mr. Hammons “felt shocked, angry,

afraid, and devastated.” Mr. Hammons “was not able to have his

hysterectomy performed until June 24, 2020.”5 Moreover, because

of the forced rescheduling:

Mr. Hammons had to spend more money on an

additional round of pre-operative tests; he

had to spend another six months experiencing

gender dysphoria without the therapeutic

benefits of the surgery; and he had to spend

another six months carrying the stress and

anxiety of having to mentally prepare himself

for the surgery all over again.

(Id., ¶ 60).

The complaint asserts Establishment Clause and Equal

Protection claims under § 1983 and a claim under the ACA,

requesting: A) declaratory relief that Defendants violated

Plaintiff’s rights under all three laws, B) compensatory damages

“in an amount to be determined at trial,” C) nominal damages,

D) “reasonable” costs and attorneys’ fees under 42 U.S.C. § 1988,

and E) “[s]uch other relief as the Court deems just and proper.”

(Id., ¶¶ 61-93 and A-E).

5 Defendants characterize this gap between the originally

scheduled surgery and the re-scheduled surgery as evidence that

“Mr. Hammons voluntarily delayed” seeking treatment elsewhere

after his operation was cancelled at UMSJ. (ECF No. 39-1, at 14 &

n. 15). As Plaintiff correctly asserts in opposition, however,

such a claim goes beyond the complaint and does not cast the facts

in the light most favorable to Plaintiff, which is the proper

perspective at this stage of the proceeding. (ECF No. 47, at 18

n.4).

On September 25, 2020, Defendants moved to dismiss. (ECF No.

39). They argue that 1) Plaintiff lacks standing to bring suit,

2) Plaintiff cannot sue Defendants for § 1983 violations as they

are private corporations or, if they are found to be state actors,

those claims are barred by sovereign immunity, 3) Plaintiff

otherwise fails to plead a valid Establishment Clause violation or

4) Equal Protection Claim, and 5) Plaintiff’s ACA claim fails as

a matter of law. (See ECF No. 39-1, at 2). On November 23, 2020,

Plaintiff responded in opposition (ECF No. 47), and on December

21, 2020, Defendants replied. (ECF No. 48).

II. Standing

Defendants first contend that that Plaintiff lacks standing

to bring this suit. It is a bedrock principle that Article III of

the Federal Constitution confines the federal courts to the

adjudication of “actual, ongoing cases or controversies.” Lewis

v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted);

see also Carney v. Adams, 141 S. Ct. 493, 498 (2020); Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 408 (2013); Baehr v. Creig

Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020). “Indeed,

‘no principle is more fundamental to the judiciary’s proper role

in our system of government than the constitutional limitation of

federal-court jurisdiction to actual cases or controversies.’”

Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337, 343 (4th

Cir. 2017) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547

(2016)).

“Article III’s restriction of the judicial power to ‘Cases’

and ‘Controversies’ is properly understood to mean ‘cases and

controversies of the sort traditionally amenable to, and resolved

by, the judicial process.’” Uzuegbunam v. Preczewski, 141 S. Ct.

792, 798 (2021) (citations omitted). Therefore, during the

pendency of a case, an actual controversy must exist. See Steffel

v. Thompson, 415 U.S. 452, 459 n.10 (1974); Int’l Bhd. of

Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230, 234

(4th Cir. 2019); Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir.

2013). In the absence of a case or controversy, “the court’s

subject matter jurisdiction ceases to exist . . . .” S.C. Coastal

Conservation League v. U.S. Army Corps. of Eng’rs, 789 F.3d 475,

482 (4th Cir. 2015).

In turn, Constitutional standing doctrine stems from the case

or controversy requirement. See, e.g., Trump v. New York, 141 S.

Ct. 530, 535 (2020); Spokeo, Inc., 136 S. Ct. at 1547. The Clapper

Court explained, “The law of Article III standing, which is built

on separation-of-powers principles, serves to prevent the judicial

process from being used to usurp the powers of the political

branches.” 568 U.S. at 408:

As explained in Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992), a plaintiff must satisfy three elements to establish

Article III standing:

First, the plaintiff must have suffered an

injury in fact — an invasion of a legally

protected interest which is (a) concrete and

particularized, and (b) actual or imminent,

not conjectural or hypothetical. Second,

there must be a causal connection between the

injury and the conduct complained of — the

injury has to be fairly traceable to the

challenged action of the defendant, and not

the result of the independent action of some

third party not before the court. Third, it

must be likely, as opposed to merely

speculative, that the injury will be redressed

by a favorable decision.

(internal quotation marks and citations omitted).

“For an injury to be traceable, ‘there must be a causal

connection between the injury and the conduct complained of’ by

the plaintiff.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 760

(4th Cir. 2018) (quoting Lujan, 504 U.S. at 560). However, “the

defendant’s conduct need not be the last link in the causal

chain[.]” Id.; see also Lexmark Int’l, Inc., 572 U.S. 118, 134 n.6

(2014) (“Proximate causation is not a requirement of Article III

standing[.]”). “[W]here the plaintiff suffers an injury that is

‘produced by [the] determinative or coercive effect’ of the

defendant’s conduct ‘upon the action of someone else,’” the

traceability requirement is satisfied. Lansdowne on the Potomac

Homeowners Ass’n, Inc. v. OpenBand and Lansdowne, LLC, 713 F.3d

187, 197 (4th Cir. 2013) (quoting Bennett v. Spear, 520 U.S. 154,

169 (1997)).

Defendants do not dispute that the alleged cancellation of

Plaintiff’s surgery constituted injury for purposes of standing.

But they contend that the injury was neither traceable to nor

redressable by them.

Defendants posit that Plaintiff’s surgeon caused injury to

Plaintiff, not the Hospital, because the surgeon arranged for the

surgery to take place at UMSJ, with knowledge that the hysterectomy

was impermissible under the Directives. (See ECF 39-1 at 10,

16-17). According to Defendants, the surgeon knew the hysterectomy

was impermissible because he “voluntar[ily] agreed to comply with

the ERDs [ethical and religious directives] when accepting

admitting privileges at St. Joseph.” Thus, they argue that

Plaintiff’s injuries “stem directly from his surgeon’s mis-

scheduling a procedure that he knew could not be performed at St.

Joseph.” (Id. at 17).

This argument fails for at least two reasons. First, the

facts, seen in the light most favorable to Plaintiff, do not

establish that the surgeon had actual knowledge the surgery would

be prohibited by the Hospital under the Directives. Second, the

argument misapplies the traceability requirement.

As to the surgeon’s knowledge of the purported harm, according

to the Complaint, “adherence” to the Directives is a “condition

for medical privileges and employment at the Hospital.” (ECF 1,

¶ 28) (quoting the Directives at 9). Thus, it is reasonable to

infer that the surgeon knew that he was required to comply with

the Directives. But that does not amount to knowledge that

Plaintiff’s scheduled hysterectomy was — or would be found to be

— contrary to the Directives. It would have been far from obvious

to the surgeon or anyone reading the Directives’ that the

prohibition on sterilization and “command to preserve the

‘functional integrity’ of the human body” would necessarily bar

Plaintiff’s surgery. The complaint asserts that Plaintiff had

satisfied the relevant standards of care to deem his operation

medically necessary. Given this designation and the subsequent

approval of the surgery by Plaintiff’s “treating physicians,” even

if the surgeon knew the Directives generally barred

hysterectomies, the surgeon would have every reason to believe

that this particular hysterectomy fit within the Directives’ sole

exception to the prohibition on sterilization.

Defendants’ argument around traceability also misses the

mark. Traceability requires only that Plaintiff’s injury be

“‘fairly traceable’” to Defendants’ conduct; Defendants need not

be “‘the sole or even immediate cause’” of that injury. Md. Shall

Issue, Inc. v. Hogan, 971 F.3d 199, 212 (4th Cir. 2020) (citation

omitted); see Libertarian Party of Virginia v. Judd, 718 F.3d 308,

316 (4th Cir. 2013) (reasoning that if the defendant was “at least

in part responsible” for the plaintiff’s injury, then traceability

was satisfied).

Here, Plaintiff was to undergo a procedure at St. Joseph that,

according to Plaintiff, was medically necessary. It is undisputed

that the cancellation of that surgery constituted an injury in

fact. Moreover, the Hospital’s Chief Medical Officer “ordered the

surgery canceled.” (ECF 1, ¶ 56). Defendants do not contend that

the conduct of the Chief Medical Officer is not attributable to

them. Thus, the cancellation of the surgery was caused, “at least

in part,” by Defendants’ reliance on the Directives and application

of the Directives in this particular case. Judd, 718 F.3d at 316.

Nothing more is required.

Defendants’ citation to Lane v. Holder, 703 F.3d 668 (4th Cir.

2012) and Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26

(1976), is also misplaced. Defendants rely on both cases for the

proposition that a third-party’s conduct can break the causal chain

between a plaintiff and defendant(s) where the injuries can be

seen to flow from that conduct. (ECF 39-1, at 17). In Defendants’

view, the conduct of Plaintiff’s surgeon caused Plaintiff injury

and broke the “‘traceability’ chain.” (Id.). Plaintiff counters

that this argument makes no sense, as the surgeon’s conduct

preceded the cancellation of the surgery, and, even if the chain

was somehow severed by the surgeon’s conduct, Defendants “picked

the chain back up” as the “final actors” in the chain of events

leading to the cancellation of the surgery. (ECF No. 47, at 17).

In reply, Defendants ignore this central, temporal flaw in their

argument and instead refute Plaintiff’s argument (in the

alternative) that they could have “picked the [causal] chain back

up”; they argue this cannot be as the complaint establishes that

“Hammons’ surgeon’s conduct is the but for cause of St. Joseph’s

cancellation.” (ECF No. 48, at 11).

Plaintiff is correct that the caselaw only focuses on

intervening conduct of a third-party, and so these cited decisions

have no bearing here. The last act in the causal chain was the

Chief Medical Officer’s cancellation of the hysterectomy, in

reliance on the Directives and the Hospital’s avowed religious

beliefs. The decision to schedule the surgery at St. Joseph set

the causal chain in motion; it could not have both initiated it

and broken it, as asserted it by Defendants. Of course, as

Defendants argue, that decision was a but-for cause of the injury,

but an event can have multiple but-for causes. See, e.g., Bostock

v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1739, (2020) (“Often,

events have multiple but-for causes.”); Guessous v. Fairview Prop.

Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (stating that “a

cause need not work in isolation to be a but-for cause”). Here,

the scheduling of the hysterectomy and the cancellation of it were

both but-for causes of the harm to plaintiff.

Having determined that traceability is satisfied,

redressability, is easily met here. Plaintiff seeks damages based

on a past injury; he does not seek prospective relief. Recently,

the Supreme Court concluded “that a request for nominal damages

satisfies the redressability element of standing where a

plaintiff’s claim is based on a completed violation of a legal

right.” Uzuegbunam, 141 S. Ct. at 802. For standing purposes, a

judgment awarding money damages is considered sufficient to

redress past harms. See id.; Wernsing v. Thompson, 423 F.3d 732,

745 (7th Cir. 2005) (stating that “injuries compensable in monetary

damages can always be redressed by a court judgment”).

Therefore, Plaintiff has standing to bring this suit.

III. Standards of Review-Motion to Dismiss

Defendants’ arguments that Plaintiff has failed to allege the

necessary elements of his § 1983 or ACA claims are analyzed under

Fed.R.Civ.P. 12(b)(6), while the assertion that sovereign immunity

constitutes a bar to the two Constitutional claims properly is

assessed under Fed.R.Civ.P. 12(b)(1).6

A. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

6 Defendants only discuss Fed.R.Civ.P. 12(b)(1) in the

context of their standing argument, and neither party identifies

what standard applies to the sovereign immunity defense. There

has been a historical lack of clarity from the Fourth Circuit on

whether the existence of sovereign immunity is grounds for

464 F.3d 480, 483 (4th Cir. 2006). “[T]he district court must

accept as true all well-pleaded allegations and draw all reasonable

factual inferences in plaintiff’s favor.” Mays v. Sprinkle, No.

19-1964, 2021 WL 1181273, at *2 (4th Cir. Oct. 27, 2020) (reversing

a district court’s dismissal of a complaint because “we must accept

the well-pleaded facts and draw reasonable inferences in favor of

the plaintiff”). In evaluating the complaint, unsupported legal

allegations need not be accepted. Revene v. Charles Cty. Comm’rs,

882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as

factual allegations are insufficient, Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009), as are conclusory factual allegations devoid of

any reference to actual events. United Black Firefighters of

Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here

the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged - but

it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’”

Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus,

“[d]etermining whether a complaint states a plausible claim for

dismissal under Fed.R.Civ.P. 12(b)(6), for a failure to state a

claim, or under Fed.R.Civ.P. 12(b)(1), for lack of subject matter

jurisdiction. This court has said, “Judges in this district favor

analysis under Fed.R.Civ.P. 12(b)(1) as the defense “functions as

a block on the exercise of that jurisdiction.” See Borkowski v.

Balt. Cty., Md., 414 F.Supp.3d 788, 804 (D.Md. 2019) (quoting Gross

v. Morgan State Univ., 308 F.Supp.3d 861, 865 (D.Md. 2018))

(internal quotation marks omitted).

relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id.

B. Fed.R.Civ.P. 12(b)(1)

A motion to dismiss under Rule 12(b)(1) should be granted

“only if the material jurisdictional facts are not in dispute and

the moving party is entitled to prevail as a matter of law.”

Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945

F.2d 765, 768 (4th Cir. 1991). In the context of such a motion,

courts should “regard the pleadings as mere evidence on the issue,”

and “may consider evidence outside the pleadings without

converting the proceeding to one for summary judgment.” Evans v.

B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). As a general

rule, the plaintiff bears the burden of proving that subject matter

jurisdiction exists. Richmond 945 F.2d at 768-69.

The Fourth Circuit has recently clarified that the defense of

sovereign immunity is a jurisdictional bar, explaining that

“sovereign immunity deprives federal courts of jurisdiction to

hear claims, and a court finding that a party is entitled to

sovereign immunity must dismiss the action for lack of subject-

matter jurisdiction.” Cunningham v. Gen. Dynamics Info. Tech.,

Inc., 888 F.3d 640, 649 (4th Cir. 2018) (citation omitted)

(discussing sovereign immunity in the context of government

contractors), cert. denied, 139 S. Ct. 417 (2018) (quoting Ackerson

v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009); see also

Cunningham v. Lester, 990 F.3d 361,365 (4th Cir. 2021) (recognizing

sovereign immunity as a jurisdictional limitation and describing

it as “a weighty principle, foundational to our constitutional

system”). In this context, however, “the burden of proof falls to

an entity seeking immunity as an arm of the state, even though a

plaintiff generally bears the burden to prove subject matter

jurisdiction.” Williams v. Big Picture Loans, LLC, 929 F.3d 170,

176 (4th Cir. 2019) (citing Hutto v. S.C. Ret. Sys., 773 F.3d 536,

543 (4th Cir. 2014)).

IV. Counts I and II: Failure to State a Claim or a Jurisdictional

Bar to Suit

Defendants argue that Plaintiff’s “central claims” (his §

1983 claims under Count I and Count II) “are premised on a fatal

paradox.” Plaintiff asserts that Defendants are part of the

state’s “Medical System,” and thus are a state actor within the

ambit of § 1983. At the same time, the complaint alleges that

they are private corporations and thus not entitled to sovereign

immunity as a defense. Defendants, in turn, argue that Plaintiff

“cannot have it both ways”: Mr. Hammons either fails to state a

claim under these counts pursuant to Fed.R.Civ.P. 12(b)(6), or

these counts are barred by sovereign immunity as a jurisdictional

matter under Fed.R.Civ.P. 12(b)(1). (ECF 39-1, at 15, 19) (citing

ECF No. 1, ¶¶ 35, 62-64, and 70-72). Defendants are correct and

Counts I and II must be dismissed, but it must be decided whether

the dismissal is because they are not governmental actors and thus

the dismissal is with prejudice under Rule 12(b)(6), or because

they are entitled to sovereign immunity (and not persons) and thus

the dismissal is without prejudice under Rule 12(b)(1).

A. State Action under § 1983

Count I, alleging a violation of the Establishment Clause of

the of the First Amendment (as incorporated by the Fourteenth

Amendment against the States), and Count II, alleging a violation

of the Equal Protection Clause of the Fourteenth Amendment, are

both asserted pursuant to 42 U.S.C. § 1983. (ECF 1. ¶¶ 63, 68,

71, 84). Under § 1983, a plaintiff may file suit against any

person who, acting under color of state law, “subjects, or causes

to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws” of

the United States. See, e.g., Filarsky v. Delia, 566 U.S. 377

(2012); see also Owens v. Balt. City State’s Att’ys Off., 767 F.3d

379 (4th Cir. 2014), cert. denied sub nom. Balt. City Police Dep’t

v. Owens, 575 U.S. 983 (2015).

To state a claim under § 1983, a plaintiff must allege

(1) that a right secured by the Constitution or laws of the United

States was violated, and (2) that the alleged violation was

committed by a “person acting under the color of state law.” West

v. Atkins, 487 U.S. 42, 48 (1988); see Davison v. Randall, 912

F.3d 666, 679 (4th Cir. 2019); Crosby v. City of Gastonia, 635 F.3d

634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi

v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir.

2009); Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).

A person acts under color of state law “only when exercising power

‘possessed by virtue of state law and made possible only because

the wrongdoer is clothed with the authority of state law.’” Polk

County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United

States v. Classic, 313 U.S. 299, 326 (1941)); see also Philips v.

Pitt Cty. Mem’l Hosp., 572 F.3d 176, 181 (4th Cir. 2009) (“[P]rivate

activity will generally not be deemed state action unless the state

has so dominated such activity as to convert it to state action:

Mere approval of or acquiescence in the initiatives of a private

party is insufficient.”) (citations and internal quotation marks

omitted).7

Defendants maintain that this suit targets “‘merely private

conduct’” rather than state action or action taken under color of

state law. (ECF 39-1, at 19) (quoting Philips, 572 F.3d at 181).

As observed by Plaintiff, however, Defendants “generally do not

differentiate between” UMMS and the Hospital LLCs. (ECF 47, at 21

n.6). Rather, Defendants stake their state action defense on the

7 The § 1983 “under color of state law” element “‘is

synonymous with the more familiar state-action requirement’ for

Fourteenth Amendment claims, ‘and the analysis for each is

identical.’” Davison, 912 F.3d at 679 (quoting Philips 572 F.3d

at 180).

character of UMMS alone. Plaintiff’s complaint alleges that UMMS

not only owns the Hospital LLCs as subsidiaries but is also

“pervasively entwined with the[ir] management and governance.”

(Id. ¶¶ 10,11, 37). In light of the position adopted by the

parties and the common ownership of the Hospital LLCs, Defendants

will be treated as a single entity for purposes of this motion.

Defendants underscore that UMMS is designated by Md. Code

Educ. § 13-303(m) as a “private, nonprofit, nonstock corporation

. . . independent from any State agency.” (See ECF 39-1, at 19).

And, in their view, the standard for assessing whether the

cancellation of Plaintiff’s surgery constituted state action is

taken from Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166 (4th

Cir. 2009), which discusses the so-called “close nexus” test.

(ECF 39-1, at 20). In Moore, the Fourth Circuit articulated that

test as follows:

[A] private entity’s action can constitute

state action if “‘there is a sufficiently

close nexus between the State and the

challenged action of the regulated entity that

the action of the latter may fairly be treated

as that of the State itself,’” . . . . The

state is deemed responsible for the private

entity’s action “if the private party acts (1)

in an exclusively state capacity, (2) for the

state’s direct benefit, or (3) at the state’s

specific behest.”

560 F.3d at 179 (citations omitted).

Plaintiff’s rejoinder to Defendants’ state action defense

depends on Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374

(1995), dealing with a government created and controlled

corporation. In both his complaint and opposition, he asserts

that Lebron compels the conclusion that UMMS is an instrumentality

of the State. (See ECF Nos. 1, ¶ 24 and 47, at 22-27). Lebron

teaches that the statutory language calling UMMS “private” and

“independent from any State agency” is not dispositive of whether

UMMS is part of the State of Maryland. And, he asserts, Lebron,

not Moore, supplies the proper standard for analyzing whether UMMS

is part of the State. (See ECF No. 47, at 22-24).

In Lebron, the plaintiff sought to display a politically

controversial advertisement on a billboard owned by the National

Railroad Passenger Corporation, “commonly known as Amtrak.” 513

U.S. at 376. Amtrak disapproved of the proposed message and did

not allow display of the advertisement. The plaintiff filed suit

against Amtrak, alleging a violation of his First Amendment rights.

Amtrak contended that it was not a state actor. According to

Amtrak, the plaintiff’s state action theory was foreclosed by the

disclaimer of governmental status in Amtrak’s authorizing statute.

Id. at 377, 392.

The Supreme Court considered whether Amtrak’s conduct

constituted state action and pointed out that the case differed

from where a private entity is alleged to have carried out

“governmental action,” as the plaintiff had alleged Amtrak was

“not a private entity but Government itself.” Lending credibility

to that assertion, the Court observed that Amtrak was established

by act of Congress “in order to avert the threatened extinction of

passenger trains in the United States,” and to serve “‘the public

convenience and necessity.’” By statute, Amtrak is “‘a for profit

corporation,’” and “its authorizing statute declares that it ‘will

not be an agency or establishment of the United States

Government.’” But six of Amtrak’s nine board members are appointed

by the President of the United States. In addition, it is

“required to submit three different annual reports to the President

and Congress.” Id. at 383-386, 391 (citations omitted) (emphasis

in original). The Court placed the creation of Amtrak amid “the

long history of corporations created and participated in by the

United States for the achievement of governmental objectives.”

Id.; see Sprauve v. W. Indian Co., 799 F.3d 226, 230 (3d Cir. 2015)

(summarizing that discussion).

The Supreme Court ultimately reasoned that the statute that

created Amtrak “is assuredly dispositive of Amtrak’s status as a

Government entity for purposes of matters that are within

Congress’s control,” such as deciding whether to subject Amtrak to

statutes like the Administrative Procedure Act, 5 U.S.C. § 551 et

seq., and federal procurement laws. Lebron, 513 U.S. at 392.

Similarly, the Court explained, Congress has the power to deprive

Amtrak of sovereign immunity. But, of relevance here, the Court

admonished:

[I]t is not for Congress to make the final

determination of Amtrak’s status as a

Government entity for purposes of determining

the constitutional rights of citizens affected

by its actions. If Amtrak is, by its very

nature, what the Constitution regards as the

Government, congressional pronouncement that

it is not such can no more relieve it of its

First Amendment restrictions than a similar

pronouncement could exempt the Federal Bureau

of Investigation from the Fourth Amendment.

Id.

Recently analyzing Lebron, the Fourth Circuit observed that

the case focused on two key factors: whether an entity served a

governmental purpose and whether it was controlled by the

government. Meridian Invs., Inc. v. Fed. Home Loan Mortg. Corp.,

855 F.3d 573, 578 (4th Cir. 2017). On the first front, because

Amtrak was “‘created by a special statute, explicitly for the

furtherance of federal governmental goals,’ it was clear that

Amtrak served a government purpose.” Id. (quoting Lebron, 513

U.S. at 398). As to the second factor, Lebron noted that the

government “controls the operation of the corporation through its

appointees,” thus acting “not as a creditor but a policymaker.”

Meridian Invs., 855 F.3d at 579 (quoting Lebron, 513 U.S. at 399);

see Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 55

(2015) (“Lebron teaches that . . . the practical reality of federal

control and supervision prevails over Congress’ disclaimer of

Amtrak’s governmental status.”). It held “that where, as here,

the Government [1] creates a corporation by special law, [2] for

the furtherance of governmental objectives, and [3] retains for

itself permanent authority to appoint a majority of the directors

of that corporation, the corporation is part of the Government for

purposes of” individual constitutional rights. Lebron, 513 U.S.

at 399 (bracketed numbers added); see Philips, 572 F.3d at 186

(separating the Lebron test into three parts in this fashion).

Defendants assert that the Fourth Circuit has placed “limited

reliance” on Lebron and cited the case just twice in twenty-five

years. (ECF 39-1 at 22, n.18). But, as Plaintiff points out,

Defendants cite three decisions of the Fourth Circuit in their

motion that discuss Lebron: Philips, 572 F.3d 176; Kerpen v. Metro.

Washington Airports Auth., 907 F.3d 152, 158 (4th Cir. 2018); and

Meridian Invs., 855 F.3d 573. Indeed, the Supreme Court recently

extended Lebron’s holding in Ass’n of Am. Railroads, 575 U.S. at

46, concluding that Amtrak is a governmental entity for purposes

of separation of powers issues, in addition to individual

constitutional rights. And courts in multiple circuits, including

the Fourth Circuit, continue to apply Lebron when wrestling with

questions concerning the governmental status of corporate entities

created by the federal government, see, e.g., Kerpen, 907 F.3d at

159; Meridian Invs., 855 F.3d at 578-79; Herron v. Fannie Mae, 861

F.3d 160, 167-68 (D.C.Cir. 2017), as well corporations created by

states. See, e.g., Sprauve, 799 F.3d at 231-32; Philips, 572 F.3d

at 185-86; Hack v. President & Fellows of Yale Coll., 237 F.3d 81,

83 (2d Cir. 2000), abrogated on other grounds by Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002); Potomac Construction Company,

Inc., v. Washington Metro. Area Transit Auth., GLS-21-193, 2021 WL

1516058, at *11 (D.Md. Apr. 16, 2021); White Coat Waste Project v.

Greater Richmond Transit Co., 463 F.Supp.3d 661, 688-89 (E.D.Va.

2020); Pennsylvania Pro. Liab. Joint Underwriting Ass’n v. Wolf,

324 F.Supp.3d 519, 531 (M.D.Pa. 2018).8

Other courts have used Lebron in similar circumstances,

choosing to apply its three-part test rather than other

formulations of state action doctrine. See, e.g., Sprauve, 799

F.3d at 230 (relying on Lebron given the plaintiff’s contention

that the defendant “is the government”); Hack, 237 F.3d at 83

(noting that “plaintiffs rely almost entirely upon Lebron”).

8 Defendants cite Mentavlos v. Anderson, 249 F.3d 301, 312

(4th Cir. 2001) for the proposition that “the Lebron factors are

not ‘conclusive’ for finding state action against” entities other

than Amtrak. (ECF 48 at 13). This is a mischaracterization of

Mentavlos. There, the Fourth Circuit addressed the status of a

military college, not a corporation. Mentavlos, 249 F.3d at 305.

In the portion of the discussion cited by defendants, the Fourth

Circuit identified various circumstances in which “state action

has been found . . . .” Id. at 312. It cited Lebron as one

example of a determination of state action, id., but did not

otherwise discuss the case, as the facts did not lend themselves

to analysis under Lebron. The court also cautioned that the

presence of the various “circumstances” it identified “might not

be conclusive” of the issue of state action. Id. Clearly, the

Mentavlos court was describing the difficult terrain of state

action doctrine generally, not the Lebron test specifically, as

asserted by Defendants. Defendants likewise distort Philips, 572

F.3d at 182. They cite it for a proposition that it plainly does

not contain. (See ECF No. 48, at 13).

In Puerto Rico Ports Authority v. Federal Maritime Com’n, 531

F.3d 868, 873 (D.C. Cir. 2008), the court remarked that:

Determining whether a particular entity is an arm

of the State can be a difficult exercise. The cases

generally arise in three different factual settings

involving: (1) agencies that are either arms of the State

or political subdivisions, such as cities or counties,

that are not entitled to sovereign immunity; (2)

special-purpose public corporations (like PRPA)

established by States to perform special functions;

these may be either arms of the State or non-governmental

corporations not entitled to sovereign immunity; and (3)

Compact Clause entities established by two or more

States by compact and approved by Congress; these are

sometimes considered arms of their constituent States

for sovereign immunity purposes, although the Supreme

Court has recognized a presumption against sovereign

immunity for Compact Clause entities, see Hess [v. Port

Authority], 513 U.S. [30 (1994)] at 42.2

______________

2 None of the Supreme Court’s arm-of-the-state cases

has considered a special purpose public corporation like

PRPA that was created by the State.

As noted by then Judge Kavanaugh in PRPA, as of 2008, none of

the Supreme Court cases dealt with a state created special purpose

corporation, including Lebron which was decided in 1995. And the

D.C. Circuit used a different test, from Hess v. Port Authority

Trans-Hudson Corp., 513 U.S. 30 (1994). But, as noted above, other

lower courts have used the Lebron analysis and it appears

particularly appropriate to do so for a state created corporation.

The first two elements of the three-part Lebron test easily

are met here. First, UMMS was created “by special law.” See Md.

Code. Educ. §§ 13-301 to 13-313. Second, UMMS was created “for

the furtherance of governmental objectives.” In this respect, the

“Legislative findings” set forth in § 13-302 are pertinent. The

statute expressly states that the purposes for which UMMS was

created include “provid[ing] medical care of the type unique to

University medical facilities for the citizens of the State and

region,” id. § 13-302(1), and “extend to all citizens of the State

. . . .” Id. § 13-302(1). Moreover, the Maryland legislature

declared that these purposes “serve the highest public interest

and are essential to the public health and welfare.” Id.

§ 13-302(4). The plain language of the statute reflects the

legislature’s intent to advance governmental objectives. Cf.

Sprauve, 799 F.3d at 233 (indicating that the second Lebron prong

was satisfied where statute announced that corporation was created

for “‘public purposes’”) (citation omitted).

The third Lebron element is also satisfied. This

consideration concerns whether the government “retains . . .

permanent authority to appoint a majority of the directors” of the

corporation. Lebron, 513 U.S. at 399. The element reflects the

Lebron’s concern with governmental control. See Ass’n of Am.

Railroads, 575 U.S. at 55; Meridian, 855 F.3d at 579; Herron, 861

F.3d at 168. This test, however, does not require a court to look

beyond the composition of a board of directors to ascertain

governmental control; as some courts of appeal have put it, “‘[w]e

think Lebron means what it says.’” Herron, 861 F.3d at 168

(quoting Hack, 237 F.3d at 84). Here, all members of UMMS’s

directors are appointed by the Governor of Maryland, with the

advice and consent of the State Senate. Md. Code Educ.

§ 13-304(b). Therefore, the element is readily satisfied. Thus,

under Lebron, UMMS is a governmental entity, that is, an arm or

instrumentality of government for purposes of Plaintiff’s

assertion of his individual constitutional rights. Thus, the state

action requirement of the Fourteenth Amendment and the color of

law requirement of 42 U.S.C. § 1983 are satisfied.

Defendants assert, then, that if the Medical System is an arm

of Maryland, the § 1983 claims fail because arms of a state are

not “persons,” citing Will v. Michigan Dep’t of State Police, 491

U.S. 58, 70–71 (1989); Clark v. Md. Dep’t of Public Safety & Corr’l

Servs., 316 F. App’x 279, 282 (4th Cir. 2009); and Lawson v. Green,

2017 WL 3638431, at *4 (D.Md. Aug. 23, 2017). (ECF No. 39-1,

at 16.) Defendants also contend that they are entitled to

sovereign immunity. Plaintiff counters that the inquiries are

congruent, and that only governmental agencies that are considered

arms of the State for Eleventh Amendment immunity are not “persons”

under § 1983, or on the other hand, an entity that is NOT immune

under the Eleventh Amendment is a person subject to suit under §

1983. (ECF No. 47, at 30) (citing Harter v. Vernon, 101 F.3d.

334, 338 n. 1 (4th Cir. 1996)). The Fourth Circuit there held that

“federal courts should approach these issues solely under the

rubric of the Eleventh Amendment and should not consider an

argument of ‘personhood’ under § 1983.”

B. Sovereign Immunity

Defendants contend that if UMMS is part of the State under

Lebron, then it is an instrumentality of the state entitled to

state sovereign immunity for Counts I and II. (ECF 39-1, at 23).

Plaintiff counters that UMMS is not an arm of the state for

purposes of sovereign immunity, or, in the alternative, that the

Maryland legislature waived UMMS’s sovereign immunity. (ECF 47,

at 27-29). Defendants argue in response that UMMS cannot be the

State for purposes of state action and at the same time fail to

qualify as an arm of the state for purposes of sovereign immunity.

Moreover, they contend that the State did not waive UMMS’s

immunity. (ECF 39-1, at 19).

The doctrine of state sovereign immunity predates the

Eleventh Amendment as a form of immunity the States enjoyed before

the ratification of the Constitution and originally encompassed a

broader concept. See Stewart v. North Carolina, 393 F.3d 484,

487-88 (4th Cir. 2005) (citing, among others, Alden v. Maine, 527

U.S. 706, 724 (1999) (“The Eleventh Amendment confirmed, rather

than established, sovereign immunity as a constitutional

principal”) and Hans v. Louisiana, 134 U.S. 1, 3 (1890))

(explaining that the “Eleventh Amendment immunity is but an example

of state sovereign immunity as it applies to suits filed in federal

court against unconsenting states by citizens of other states”).

The Eleventh Amendment, in turn, provides that: “The 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, or by Citizens or

subjects of any Foreign State.” The Supreme Court has explained:

“Although by its terms the Amendment applies only to suits against

a State by citizens of another State, our cases have extended the

Amendment’s applicability to suits by citizens against their own

States.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,

363 (2001) (collecting cases). Thus, “the ultimate guarantee of

the Eleventh Amendment is that nonconsenting States may not be

sued by private individuals in federal court.” Id. Put simply,

States are generally immune from suit for damages in federal court,

absent consent or a valid congressional abrogation of sovereign

immunity. See Coleman v. Court of Appeals of Md., 566 U.S. 30, 35

(2012); Va. Office for Prot. & Advocacy, 563 U.S. at 253-54;

Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019), cert.

denied, 140 S. Ct. 903 (2020). This expansion of the Eleventh

Amendment has narrowed the gap between the two concepts

considerably and eliminated it entirely in this context.

The parties refer to Eleventh Amendment immunity and state

sovereign immunity interchangeably. (See, e.g., ECF 47 at 27-28;

ECF 48 at 14). Consistent with the parties’ usage, state sovereign

immunity will be treated as synonymous with Eleventh Amendment

immunity.

State sovereign immunity bars suit not only against a state,

but also against an instrumentality of a state, such as a state

agency, often referred to as an “arm of the state.” See Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (“It

is clear, of course, that in the absence of consent a suit in which

the State or one of its agencies or departments is named as the

defendant is proscribed by the Eleventh Amendment.”); see

also McCray v. Md. Transit Admin., 741 F.3d 480, 483 (4th Cir.

2014); Bland v. Roberts, 730 F.3d 368, 389 (4th Cir.

2013); Constantine v. Rectors and Visitors of George Mason Univ.,

411 F.3d 474, 479 (4th Cir. 2005).

In defining its scope, the Fourth Circuit has said sovereign

immunity applies when “the governmental entity is so connected to

the State that the legal action against the entity would . . .

amount to the indignity of subjecting a State to the coercive

process of judicial tribunals at the instance of private parties.”

Cash v. Granville Cty. Bd. Of Educ., 242 F.3d 219, 224 (4th Cir.

2001) (internal quotation marks omitted). On the other hand,

sovereign immunity “does not immunize political subdivisions of

the state, such as municipalities and counties, even though such

entities might exercise a ‘slice of state power.’” Ram Ditta v.

Md. Nat. Cap. Park & Planning Comm’n, 822 F.2d 456, 457 (4th Cir.

1987) (quoting Lake Country Estates, Inc. v. Tahoe Reg’l Plan.

Agency, 440 U.S. 391, 401 (1979)).

Neither side cites any decisions in which a court determined

that, under Lebron, or any other test, a corporate defendant was

part of state government and then proceeded to analyze whether the

defendant was entitled to state sovereign immunity. Nor is any

such caselaw readily identifiable. It may seem strained to rely

on Lebron to determine whether UMMS is part and parcel of

government for purposes of state action, and then deploy a separate

test to determine whether UMMS is an arm of the state for purposes

of sovereign immunity. Indeed, the inquiries are really synonymous

and the arm-of-the-state analysis answers both questions.

Nevertheless, the court will look to caselaw specific to the

sovereign immunity inquiry — albeit caselaw specifically focused

on whether a unit of government was state or local — to determine

if UMMS is an arm of the state pursuant to the multifactor inquiry

articulated in Ram Ditta, 822 F.2d at 457-58.

The Fourth Circuit has explained how Ram Ditta laid out four

essential factors as to whether an entity is entitled to “Eleventh

Amendment immunity”:

[T]his court has stated the formula as a

four-part, non-exclusive inquiry: (1) whether

the state treasury will be responsible for

paying any judgment that might be awarded; (2)

whether the entity exercises a significant

degree of autonomy from the state; (3) whether

it is involved with local versus statewide

concerns; and (4) how the entity is treated as

a matter of state law.

Ristow v. S.C. Ports Auth., 58 F.3d 1051, 1052 n.3 (quoting Ram

Ditta, 822 F.2d at 457-48); see also U.S. ex rel. Oberg v. Pa.

Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014)

(identifying and applying the above “four nonexclusive factors”).

As Plaintiff points out, the first of the Ram Ditta factors

has been described as the most important. (ECF 47, at 29-30);

see, e.g., Hess, 513 U.S. at 49 (remarking that “the state treasury

factor is the most important factor to be considered”) (citation

omitted); Hutto, 773 F.3d at 543 (same). And Plaintiff notes that

the Supreme Court has observed that the first factor is “generally

accorded . . . dispositive weight.” Hess, 513 U.S. at 49.9 Here,

Defendants assert that the State would not pay any judgment against

UMMS. (ECF 39-1, at 20) (citing Md. Code Educ. § 13-310).10 Thus,

9 Although the Ram Ditta factors are referred to only

obliquely in Hess, the Fourth Circuit quickly dispelled any

suggestion that Hess had displaced the Ram Ditta test. Gray v.

Laws, 51 F.3d 426, 431 n.2 (4th Cir. 1995) (“In the end, we do not

believe that Hess, as it applies to single state entities,

materially altered the Eleventh Amendment analysis we formulated

in Ram Ditta . . . .”).

10 Section 13-310 is titled “Payment of obligations of

Corporation.” It provides:

Obligations of [UMMS]:

(1) Are payable only from assets of

[UMMS]; and

(2) Are not debts or obligations of the

University or the State.

the first factor strongly suggests that UMMS is not an arm of the

state.

The Fourth Circuit has indicated that the analysis may end if

the first factor comes out the other way. “[I]f the state treasury

will pay the judgment, the entity is immune from suit, and the

other Ram Ditta factors need not be considered.” Harter v. Vernon,

101 F.3d 334, 337 (4th Cir. 1996). But the opposite is true here.

Moreover, in Oberg the Fourth Circuit concluded that the first

factor weighed heavily against finding that the defendant was an

arm of the state, but nonetheless considered the other three

factors. 745 F.3d at 139-41. Therefore, it is appropriate to

address the remaining factors.

Here, the second Ram Ditta factor regarding UMMS’s autotomy

is interrelated with the fourth factor, how UMMS is treated under

Maryland law, and so the two are discussed in tandem below. The

third Ram Ditta factor suggests that UMMS is an arm of the state.

The Maryland General Assembly declared that UMMS was created to

“provide medical care . . . for the citizens of the State and

region,” Md. Code Educ. § 13-302(1), and that such care “extend[s]

to all citizens of the State . . . .” Id. § 13-302(2).11 This

language reflects an involvement with statewide concerns, rather

11 Although St. Joseph may serve a more localized

population than UMMS as a whole, Defendants do not differentiate

the Hospital LLCs from UMMS for purposes of this analysis.

than local ones, thus tilting the third factor in favor of

Defendants.

The fourth factor, which looks to the treatment of UMMS under

Maryland law, points in the same direction. To be sure, the State

legislature designated UMMS a “private, nonprofit, nonstock

corporation” that is “independent from any State agency.” Md.

Code Educ. § 13-303(m). But the Court of Appeals of Maryland has

determined that UMMS is an instrumentality of the State for

purposes of Maryland’s Public Information Act, notwithstanding the

statutory language in § 13-303(m). Napata v. Univ. of Md. Med.

Sys. Corp., 417 Md. 724, 737 (2011). In reaching this

determination, the Napata Court examined “[a]ll aspects of the

interrelationship between the State and” UMMS. Id. at 733

(citation omitted) (alteration in original). The court summarized

that examination as follows,

[W]e agree with the Court of Special Appeals

that “the attributes of UMMS’s relationship

with the State that point to its being an

instrumentality of the State predominate over

those pointing to its private character”

. . . . UMMS did not exist until the State

assets were transferred to the corporation.

Its aim of providing health care to . . .

Maryland residents serves a public purpose.

Moreover, the State remains a visible and

compelling force in UMMS’s operations. All

voting members on UMMS’s Board of Directors

are appointed by the Governor, and two of

these flow from nominations by the respective

leaders of each legislative chamber.

Additionally, unlike an independent hospital,

UMMS is not free to compete with the

University for private gifts or private or

federal grants, and its annual contracts must

be approved by the Regents of the University

[of Maryland]. Should UMMS become financially

unstable, the Treasurer may loan State funds

to UMMS as necessary. Finally, the Regents

and the Board of Public Works have the power

to dissolve UMMS if they determine that it is

not fulfilling its purpose. In that event,

UMMS’s assets will revert to the State. These

facts compel the conclusion that UMMS is an

instrumentality of the State.

Id. at 737, (citation omitted).

Napata’s in-depth assessment of the relationship between UMMS

and the State is also pertinent to the second Ram Ditta factor,

which concerns the degree to which UMMS exercises autonomy from

the State. It is clear from Napata that, although UMMS may

function like an independent corporate medical system in some

respects, it is nevertheless tethered to State government and

subject to State oversight in important ways. Notably, Plaintiff

does not offer any argument as to this factor, or any of the Ram

Ditta factors, other than the first. (See ECF 47 at 29-30).

Moreover, had Plaintiff contended that UMMS is sufficiently

autonomous from the State to tilt the second factor in his favor,

he would have undermined the allegation in his Complaint that the

State “continues to exercise ultimate authority and control over

the governance of UMMS.” (ECF 1, ¶ 20).

UMMS is an arm of the State for purposes of sovereign

immunity.

The Fourth Circuit has identified three exceptions to the

Eleventh Amendment’s prohibition of suit against a state or an arm

of a state. In Lee-Thomas v. Prince George’s County Public

Schools, 666 F.3d 244, 249 (4th Cir. 2012), it said:

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. [] Garrett, 531 U.S. [at] 363

. . . . 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 [] 535 U.S. [at] 618

[].

(internal quotations omitted).

As to the third exception, relevant here, the test to

determine whether a state has waived its immunity from suit in

federal court is a “stringent” one. Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 239-40 (1985), superseded on other grounds,

as recognized in Lane v. Pena, 518 U.S. 187, 198 (1996); see FAA

v. Cooper, 566 U.S. 284, 290 (2012) (stating that a waiver of

sovereign immunity occurs “only where stated by the most express

language or by such overwhelming implication from the text as will

leave no room for any other reasonable construction” and without

recourse to legislative history); accord Pense, 926 F.3d 97, 101

(4th Cir. 2019); Lee-Thomas, 666 F.3d at 250-51; see also

Cunningham. 990 F.3d at 365 (citing Cooper, 566 U.S. at 290)

(recognizing that “the Court explicitly and routinely construes

ambiguous text so as to obviate any inference of waiver.”)

Plaintiff contends that the Maryland legislature explicitly

waived sovereign immunity for UMMS. He locates the purported

waiver in Md. Code Educ. § 13-303(a)(2), which provides, in

relevant part, that UMMS “shall not be a State agency . . . and is

not subject to any provisions of law affecting only governmental

or public entities.” (See ECF 47 at 28). In essence, Plaintiff

construes the second clause to encompass state sovereign immunity.

(See id.).

Defendants counter that UMMS’s authorizing statute expressly

reserved sovereign immunity. (ECF 48, at 14). They point to Md.

Code Educ. § 13-308(f), which states, “Sovereign immunity not

waived or abrogated.- Nothing contained in this subtitle shall be

deemed or construed to waive or abrogate in any way the sovereign

immunity of the State or to deprive the University or any officer

or employee thereof of sovereign immunity.”

Of course, any waiver of sovereign immunity must be express and

unequivocal.12 See Cunningham, 990 F.3d at 365. Even assuming

12 Pense is instructive on just how narrowly purported

waivers are construed. 926 F.3d at 102. There, the Fourth Circuit

considered whether a separate Maryland statute waived the State’s

sovereign immunity. That statute, Md. Code State Gov’t § 20-903

provides: “The State, its officers, and its units may not raise

sovereign immunity as a defense against an award in an employment

discrimination case under this title.” The court explained that

because that language “does not ‘specify the State’s intention to

subject itself to suit in federal court,’ that provision cannot be

that the provision relied upon by Defendants does not pertain to

UMMS specifically, Plaintiff’s argument still fails because the

statutory language he cites does not contain an express waiver of

sovereign immunity. According to Plaintiff, the statement in

§ 13-303(a)(2) that UMMS “is not subject to any provisions of law

affecting only governmental or public entities” constitutes

waiver. Yet, neither the term “sovereign immunity” nor any

reference to suit in federal court appears in the statute. Insofar

as Plaintiff is suggesting that such waiver can be implied, he

does not back up his claim with any legal authority. (See ECF 47,

at 28). He draws only on Napata, which construed this statutory

language expressly to exempt UMMS “from laws affecting only public

entities.” 417 Md. at 739-40. Napata, however, did not concern

state sovereign immunity and thus has no bearing on this specific

issue. Defendants are shielded by sovereign immunity on Counts I

and II.13

read to waive the State’s Eleventh Amendment immunity.” Pense,

926 F.3d at 102 (emphasis in original) (quoting Atascadero, 473

U.S. at 241).

13 Defendants do not contend that sovereign immunity

applies to Count III, under the ACA. Several trial courts have

ruled that Congress validly conditioned receipt of federal funds

on a consent to waive immunity, see, e.g., Kadel v. Folwell, 446

F.Supp.3d 1, 17 (M.D.N.C. 2020); Boyden v. Conlin, 341 F.Supp.3d

979, 999 (W.D.Wis. 2018); Fain v. Crouch, 2021 WL 2004793

(S.D.W.Va. May 19, 2012). The ruling in Kadel, however, is

currently on appeal before the Fourth Circuit, which heard oral

argument in March. Kadel v. N.C. State Health Plan, No. 20-1409

(4th Cir. argued Mar. 11, 2021).

V. Count III: the ACA Claim

Section 1557, through its incorporation of Title IX,

prohibits, inter alia, discrimination on the basis of sex and the

denial of benefits on the basis of sex in any health program or

activity receiving federal funding. To state a claim under Title

IX, a plaintiff must also allege that he was harmed by a

defendant’s improper conduct. Grimm v. Gloucester Cty. Sch. Bd.,

972 F.3d 586, 616 (4th Cir. 2020).

Here, Mr. Hammons alleges that Defendants are responsible for

a health program or activity that receives federal funds. (ECF

No. 1, ¶¶ 14, 88). And, Plaintiff alleges that he was harmed by

the cancellation of his scheduled hysterectomy at St. Joseph.

(Id. , ¶ 60). Defendants do not take issue with the sufficiency of

these allegations. Thus, the remaining question is whether

Plaintiff alleges unlawful discrimination or denial of benefits on

the basis of sex.

Neither side relies on the ACA’s implementing regulations.

Defendants point out that although the U.S. Department of Health

and Human Services, under former President Trump, promulgated

regulations that could have a bearing on this case, those

“regulatory changes” have been enjoined. (See ECF 39-1 at 29 n.24)

(citing Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum.

Servs., 485 F. Supp. 3d 1 (D.D.C. 2020); Walker v. Azar, 20-cv-

2834 (FB) (SMG), 2020 WL 4749859 (E.D.N.Y. Aug. 17, 2020)). Rather

than substantively addressing the status and relevance of those

regulations, Defendants chose to “reserve[] [their] right to

present additional arguments based on those regulations.”

(ECF 39-1, at 29 n.24).

Nevertheless, during the pendency of this motion, Plaintiff

submitted a “Notice of Supplemental Authority” that the Department

of Health and Human Services (“HHS”) has issued a new “Notification

of Interpretation and Enforcement” that clarifies the protections

granted under Title IX, and therefore § 1557, by extension.

(ECF No. 50). It announces that, “This Notification is to inform

the public that, consistent with the Supreme Court’s decision in

Bostock and Title IX, beginning May 10, 2021, the Department of

Health and Human Services (HHS) will interpret and enforce Section

1557’s prohibition on discrimination on the basis of sex to

include: (1) discrimination on the basis of sexual orientation;

and (2) discrimination on the basis of gender identity.” (ECF No.

50-1, at 2).

Plaintiff, in turn, states:

HHS’s position supports Mr. Hammons’s claim

that by refusing to perform his hysterectomy

in aid of his sex reassignment, while agreeing

to perform hysterectomies not associated with

sex reassignment, Defendants discriminated

against him on the basis of sex. The

Notification is therefore relevant, post-

submission authority supporting Mr. Hammons’s

argument that Defendants’ motion to dismiss

the Section 1557 claim should be denied.

(ECF No. 50, at 2). He goes on to argue that “Fourth Circuit

precedent also treats discrimination based on gender identity as

sex-based discrimination and subject it to heightened scrutiny

under the Equal Protection Clause.” Id. (citing Grimm, 972 F.3d

at 606).

Defendants’ response attempts to distinguish Grimm by arguing

that the St. Joseph’s policy at issue here, unlike in that case,

is facially neutral. They also argue that this recent HHS

interpretation does not apply as “they were not in effect at the

time Hammons alleges the conduct took place.” (ECF No. 51, at 1-

2). This latter argument fails to note Plaintiff’s concession

that this is “post-submission authority” and his reliance on HHS’s

guidance as merely persuasive support to his claim, and not any

kind of binding authority.

This is all beside the point, as Bostock already made clear

that the position stated in HHS’s interpretation was already

binding law. The Fourth Circuit looks to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., which concerns

employment, to guide the “evaluation of claims under Title IX.”

Grimm, 972 F.3d at 616; see Jennings v. Univ. of N.C., 482 F.3d

686, 695 (4th Cir. 2007). Thus, as the Grimm court explained, 972

F.3d at 616, the Supreme Court’s decision in Bostock, 140 S. Ct.

1731, is consequential for claims brought under both statutes.

In Bostock, the Supreme Court held that discrimination on the

basis of homosexuality or transgender status necessarily

constitutes discrimination on the basis of sex, which is prohibited

under Title VII. The plain language of Title VII, the Court

observed, establishes a but-for causation standard. And, as noted,

events often “have multiple but-for causes.” Thus, “so long as

the plaintiff’s sex was one but-for cause” of an alleged

discriminatory act, “that is enough to trigger the law.” Further,

the Court observed that transgender status and sex are

inextricable. It opined, “Just as sex is necessarily a but-for

cause when an employer discriminates against . . . transgender

employees, an employer who discriminates on these grounds

inescapably intends to rely on sex in its decisionmaking.”

(Id., at 1739-44) (emphasis in original).

Here, St. Joseph’s Chief Medical Officer, Dr. Cunningham,

“ordered” the cancellation of Plaintiff’s hysterectomy “because

the surgery conflicted with the hospital’s Catholic religious

beliefs and the Catholic Directives.” (ECF 1, ¶ 56). In

particular, Dr. Cunningham informed Plaintiff’s surgeon that the

hysterectomy conflicted with the Directives’ prohibition on

sterilization, and their “command to preserve the ‘functional

integrity’ of the human body.” (Id., ¶¶ 57-58).

Both the prohibition on sterilization and the imperative

concerning bodily integrity permit exceptions. “Procedures that

induce sterility are permitted when their direct effect is the

cure or alleviation of a present and serious pathology and a

simpler treatment is not available.” The Directives also allow

the “functional integrity of the person [to] be sacrificed to

maintain the health or life of the person when no other morally

permissible means is available.” Directives at 14 and 19.

In Plaintiff’s view, his scheduled hysterectomy fell within

the scope of both exceptions. His “treating physicians

recommended,” on the basis of the authoritative WPATH Standards of

Care, that Plaintiff receive a hysterectomy as a medically

necessary treatment for gender dysphoria.” Moreover, Plaintiff

“satisfied all of the criteria for a medically necessary

hysterectomy under the WPATH Standards of Care.” (ECF 1, ¶ 52).

This included not only doctors’ referral letters but a documented

course of hormone therapy over the previous year. Nevertheless,

Dr. Cunningham informed Plaintiff’s surgeon that Plaintiff’s

condition of “gender dysphoria did not qualify as a sufficient

medical reason to authorize the procedure,” and that the Hospital

“did not consider Mr. Hammons’s gender dysphoria to be a valid

basis under the . . . Directives to justify disrupting the body’s

‘functional integrity.’” (Id. ¶¶ 57-58).

In short, Mr. Hammons alleges that the Hospital denied

Plaintiff the benefits of its services because he has gender

dysphoria, a condition inextricably linked to being transgender.

Although Plaintiff’s treating physicians had determined that

hysterectomy was a medically necessary treatment for his

condition, the Hospital refused to perform the surgery,

specifically because it was linked to this condition. As explained

in Bostock, a defendant who takes adverse action against someone

for being transgender “inescapably intends to rely on sex in” his

decisionmaking. 140 S.Ct. at 1742. Thus, Plaintiff alleges that

the Hospital denied him the benefits of its services on the basis

of sex, in violation of § 1557.

Moreover, Plaintiff alleges that St. Joseph recognizes the

applicability of the pertinent exceptions contained in the

Directives with other types of patients. For instance, surgeons

at the Hospital “remove otherwise healthy tissue to prevent cancer

or other diseases” and “perform purely cosmetic surgeries.”

(ECF 1, ¶ 58). Nonetheless, the Hospital regarded Plaintiff’s

medical need differently because he is transgender, and therefore

cancelled his procedure. In this regard, Plaintiff alleges that

the Hospital discriminated against him on the basis of sex by

treating him “‘worse than others who are similarly situated.’”

Grimm, 972 F.3d at 618 (quoting Burlington N. & Santa Fe Ry. v.

White, 548 U.S. 53, 59, (2006)); see Bostock, 140 S. Ct. at 1740-

44; see also Kadel, 446 F. Supp. 3d at 17 (concluding that the

transgender plaintiff stated a sex discrimination claim under

§ 1557); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 953

(D.Minn. 2018) (same); Prescott v. Rady Children’s Hosp.-San

Diego, 265 F.Supp.3d 1090, 1099-1100 (S.D.Cal. 2017) (same).

Defendants’ arguments do not require a different result. For

one, Defendants assert that to state a claim of sex discrimination

under § 1557, a plaintiff must allege that the discrimination was

intentional and that it was a “‘substantial’ or ‘motivating factor’

for” the defendant’s actions. (ECF 48, at 21) (quoting Weinreb v.

Xerox Bus. Servs., LLC Health & Welfare Plan, 323 F. Supp. 3d 501,

521 (S.D.N.Y. 2018), adhered to on denial of reconsideration sub

nom. Weinreb v. Xerox Bus. Servs., No. 16-CV-6823 (JGK), 2020 WL

4288376 (S.D.N.Y. July 27, 2020)). Of course, Weinreb is not

binding authority on this court; the Fourth Circuit has not

employed the same language when articulating the standard for sex

discrimination under § 1557 and Title IX.14 Moreover, even if

Plaintiff were required to allege that discrimination was a

substantial or motivating factor in Defendants’ actions, the

Complaint would still pass muster. Plaintiff plainly alleges that

his hysterectomy was cancelled and that therefore he was denied

necessary medical treatment, purely because of his transgender

status, and thus because of his sex. Under the logic and

14 Since Weinreb was decided, the Second Circuit has

articulated the pertinent standard differently. See Doe v.

Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016) (stating that under

Title IX, a complaint “is sufficient with respect to the element

of discriminatory intent . . . if it pleads specific facts that

support a minimal plausible inference of . . . discrimination”).

instruction of Bostock, Defendants “inescapably” intended to rely

on sex in their decisionmaking.

Mr. Hammons has stated a claim for sex discrimination under

§ 1557 of the ACA.

VI. Conclusion

For the foregoing reasons, the motion to dismiss will be

granted as to Count I and Count II and denied as to Count III. A

separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge