COLON HEALTH CENTERS OF AMERICA, LLC v. HAZEL

No. 14-2283.

813 F.3d 145 (2016)

COLON HEALTH CENTERS OF AMERICA, LLC; Washington Imaging Associates-Maryland, LLC, d/b/a Progressive Radiology, Plaintiffs-Appellants, v. Bill HAZEL, in his official capacity as Secretary of Health and Human Resources; Bruce Edwards, in his official capacity as Chair of the Virginia State Board of Health; James E. Edmondson, Jr., in his official capacity as member of the Virginia State Board of Health; Steven R. Escobar, in his official capacity as member of the Virginia State Board of Health; M. Catherine Slusher, in her official capacity as member of the Virginia State Board of Health; Amy Vest, in her official capacity as member of the Virginia State Board of Health; Eric O. Bodin, in his official capacity as Director of the Office of Licensure and Certification; John W. Seeds, in his official capacity as member of the Virginia State Board of Health; Marissa Levine, in her official capacity as the State Health Commissioner; Bradley Beall, in his official capacity as member of the Virginia State Board of Health; Theresa Middleton Brosche, in her official capacity as member of the Virginia State Board of Health; Megan C. Getter, in her official capacity as member of the Virginia State Board of Health; Henry N. Kuhlman, in his official capacity as member of the Virginia State Board of Health; Honorable Faye Prichard, in her official capacity as member of the Virginia State Board of Health; Benita Miller, in her official capacity as member of the Virginia State Board of Health; Peter Boswell, in his official capacity as Director of the Division of Certificate of Public Need; Tom East, in his official capacity as member of the Virginia State Board of Health; Linda Hines, in her official capacity as member of the Virginia State Board of Health; Honorable Mary Margaret Whipple, in her official capacity as member of the Virginia State Board of Health, Defendants-Appellees. Shenandoah Independent Practice Association, Inc.; Shenandoah Surgeons LLC; Christoper Koopman, Research Fellow, The Mercatus Center at George Mason University; Matthew Mitchel, Senior Research Fellow, The Mercatus Center at George Mason University; Thomas Stratmann, University Professor of Economics and Law, Department of Economics, George Mason University; Robert Graboyes, Senior Research Fellow, Mercatus Center at George Mason University; Jake Russ, Graduate Fellow, Mercatus Center at George Mason University; James Bailey, Assistant Professor of Economics, Department of Economics and Finance, Creighton University, Amici Supporting Appellants, The Virginia Hospital & Healthcare Association; The Virginia Health Care Association; The State of Washington; The State of Arizona; The State of Hawaii; The State of Mississippi; The State of Vermont, Amici Supporting Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: January 21, 2016.


Attorney(s) appearing for the Case

ARGUED: Darpana Sheth , Institute for Justice, Arlington, Virginia, for Appellants. Stuart Alan Raphael , Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF: Robert J. McNamara , William H. Mellor , Mahesha P. Subbaraman , Institute for Justice, Arlington, Virginia, for Appellants. Mark R. Herring , Attorney General, Cynthia V. Bailey , Deputy Attorney General, Christy W. Monolo , Assistant Attorney General, Carly L. Rush , Assistant Attorney General, Farnaz F. Thompson , Assistant Attorney General, Trevor S. Cox , Deputy Solicitor General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. Milad Emam , Wiley Rein LLP, Washington, D.C., for Amici Shenandoah Independent Practice Association and Shenandoah Surgeons LLC. Jared M. Bona , Aaron R. Gott , Bona Law P.C., La Jolla, California, for Amici Scholars of Economics and Scholars of Law and Economics. Robert W. Ferguson , Attorney General, Alan D. Copsey , Deputy Solicitor General, Richard A. McCartan , Senior Counsel, Office of The Attorney General of Washington, Olympia, Washington; Mark Brnovich , Attorney General, Office of the Attorney General of Arizona, Phoenix, Arizona; Douglas S. Chin , Attorney General, Office of the Attorney General of Hawaii, Honolulu, Hawaii; Jim Hood , Attorney General, Office of the Attorney General of Mississippi, Jackson, Mississippi; William H. Sorrell , Attorney General, Office of the Attorney General of Vermont, Montpelier, Vermont, for Amici States of Washington, Arizona, Hawaii, Mississippi and Vermont. James J. O'Keeffe, IV , Johnson, Rosen & O'Keeffe, LLC, Roanoke, Virginia; Jamie Baskerville Martin , Jeremy A. Ball , Jennifer L. Ligon , McCandlish Holton, Richmond, Virginia, for Amici Virginia Hospital & Healthcare Association and Virginia Health Care Association.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King and Judge Wynn joined.


Virginia's certificate of need (CON) program governs the establishment and expansion of certain medical facilities inside the state. In this case two providers of medical imaging services, Colon Health Centers of America and Progressive Radiology, argue that the CON law unconstitutionally violates the dormant aspect of...

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