                                                       FILED: March 27, 2020
                                                    AMENDED: March 30, 2020

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                 ___________________

                                     No. 19-1614 (L)
                                  (1:19-cv-01103-RDB)
                                 ___________________

MAYOR AND CITY COUNCIL OF BALTIMORE

               Plaintiff - Appellee

v.

ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human
Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant
Secretary, Office of Population Affairs; UNITED STATES DEPARTMENT OF
HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS

               Defendants - Appellants

------------------------------

OHIO; ALABAMA; ARKANSAS; INDIANA; KANSAS; LOUISIANA;
NEBRASKA; OKLAHOMA; SOUTH CAROLINA; SOUTH DAKOTA;
TENNESSEE; TEXAS; UTAH; WEST VIRGINIA

               Amici Supporting Appellant

NEW YORK, NEW YORK CITY HEALTH + HOSPITALS AND 10 LOCAL
GOVERNMENTS; NATIONAL HEALTH LAW PROGRAM; ADVOCATES
FOR YOUTH; AMERICAN MEDICAL STUDENT ASSOCIATION;
AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE; COMMUNITY
CATALYST; THE ENDOCRINE SOCIETY; FAMILIES USA; IN OUR OWN
VOICE: NATIONAL BLACK WOMEN'S REPRODUCTIVE JUSTICE
AGENDA; JUVENILE LAW CENTER; THE LEADERSHIP CONFERENCE
ON CIVIL AND HUMAN RIGHTS; NATIONAL COUNCIL OF JEWISH
WOMEN; NARAL PRO-CHOICE AMERICA; NATIONAL ABORTION
FEDERATION; NATIONAL IMMIGRATION LAW CENTER; NATIONAL
INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL LATINA
INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL PARTNERSHIP
FOR WOMEN & FAMILIES; NATIONAL WOMEN'S HEALTH NETWORK;
NATIONAL WOMEN'S LAW CENTER; NORTHWEST HEALTH LAW
ADVOCATES; POSITIVE WOMEN'S NETWORK-USA; POWER TO
DECIDE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF
AMERICAN RABBIS; WOMEN OF REFORM JUDAISM; MEN OF REFORM
JUDAISM; UNITE FOR REPRODUCTIVE & GENDER EQUITY; WHITMAN-
WALKER HEALTH; WOMENHEART; YWCA OF THE USA; NATIONAL
CENTER FOR LESBIAN RIGHTS; GLMA: HEALTH PROFESSIONALS
ADVANCING LGBT EQUALITY; THE LGBT MOVEMENT
ADVANCEMENT PROJECT; NATIONAL LGBTQ TASK FORCE;
EQUALITY FEDERATION; SEXUALITY INFORMATION AND
EDUCATION COUNCIL OF THE UNITED STATES; FAMILY EQUALITY
COUNCIL; THE NATIONAL CENTER FOR TRANSGENDER EQUALITY;
HIV MEDICINE ASSOCIATION; GLBTQ LEGAL ADVOCATES &
DEFENDERS; LAMBDA LEGAL DEFENSE AND EDUCATION FUND,
INCORPORATED; THE HUMAN RIGHTS CAMPAIGN; TRANSGENDER
LAW CENTER; BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM; THE
INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY
SCHOOL OF LAW; NATIONAL CENTER FOR YOUTH LAW; AMERICAN
ACADEMY OF PEDIATRICS; AMERICAN COLLEGE OF OBSTETRICIANS
AND GYNECOLOGISTS; AMERICAN COLLEGE OF PHYSICIANS;
SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; SOCIETY FOR
MATERNAL FETAL MEDICINE

         Amici Supporting Appellee

                         ___________________

                               No. 20-1215
                          (1:19-cv-01103-RDB)
                         ___________________

MAYOR AND CITY COUNCIL OF BALTIMORE

         Plaintiff - Appellee
v.

ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human
Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant
Secretary, Office of Population Affairs; UNITED STATES DEPARTMENT OF
HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS

              Defendants - Appellants

                               ___________________

                                    ORDER
                               ___________________

             A majority of judges in regular active service and not disqualified

having voted in a requested poll of the court to grant initial hearing en banc,

      IT IS ORDERED that initial hearing en banc is granted.

      Upon consideration of submissions relative to the motion to consolidate case

No. 19-1614 with case No. 20-1215, the court grants the motion. The clerk is

directed to set an appropriate expedited supplemental briefing schedule in case No.

20-1215.

      The parties shall file a total of 16 paper copies of their briefs and appendices

in No. 19-1614 and their supplemental briefs and appendices in No. 20-1215. For

previously filed briefs, the additional paper copies shall be filed by April 6, 2020.

For the new briefs and appendices, 16 paper copies shall be filed together with the

electronic copy.

                                        For the Court

                                        /s/ Patricia S. Connor, Clerk
RICHARDSON, Circuit Judge, dissenting from the order denying the motion to

stay:

        In a sharp break with settled practice, our Court invokes the once-

extraordinary mechanism of initial-en-banc review to circumvent our conventional

three-judge panel process. We used to place great value in entrusting a panel of our

colleagues with first adjudicating the appeal. Doing so not only fostered collegiality

but reflected the value of deciding even controversial matters with adherence to a

purposeful procedure. We departed from this procedure in only the rarest of

extraordinary circumstances. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 211

F.3d 853 (4th Cir. 2000) (Wilkinson, C.J., concurring in the denial of an initial

hearing en banc). For the past fifty years, we followed this practice through varied

administrations and court compositions. Times have changed.

        After taking the case from the assigned panel, the en banc Court then denies

the government’s motion for a stay of the district court’s order. That order enjoined

an agency rule that amended regulations governing federal grants for preconception

family-planning programs. The agency’s amendments essentially returned those

regulations to the version that the Supreme Court blessed in Rust v. Sullivan, 500

U.S. 173 (1991). Even so, the district court found some of the rule’s provisions to

be “arbitrary and capricious.” Having found some provisions improper, the court

enjoined enforcement of the entire rule. And it did so for the whole State of

Maryland, even though only the City of Baltimore sued. I would grant the motion
for a stay, particularly as the district court’s injunction applies to provisions never

held to be unlawful and is geographically broader than necessary.
