Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 1 of 13

Transcription

1 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO CIV-GRAHAM/GOODMAN THE MOST REVEREND THOMAS G. WENSKI, Archbishop of the ARCHDIOCESE OF MIAMI, et al., v. Plaintiffs, KATHLEEN SEBELIUS, in her official capacity as Secretary, United States Department of Health and Human Services, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:12-cv DLG DEFENDANTS REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS

2 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 2 of 13 INTRODUCTION Plaintiffs challenge regulations that defendants are not enforcing against them, will never enforce against them in their current form, and that are presently being amended to accommodate the precise religious liberty concerns that form the basis of plaintiffs Complaint. Yet plaintiffs ask this Court to ignore the fact that the regulations will change before defendants could ever enforce them against plaintiffs, and invite the Court to waste time and effort to issue a purely advisory opinion. Because plaintiffs have not met the basic jurisdictional prerequisites of standing and ripeness, the Court should decline plaintiffs invitation and dismiss this case. 1 ARGUMENT I. THE COURT SHOULD DISMISS THIS CASE FOR LACK OF JURISDICTION BECAUSE PLAINTIFFS LACK STANDING Plaintiffs standing allegations rest on (1) alleged imminent injuries from the supposedly upcoming enforcement of the regulations in their current form, and (2) alleged current injuries from the uncertainty created by the regulations in their current form. See Opp n at But both stem entirely from plaintiffs speculation that the regulations will apply to plaintiffs in their current form come August So too does the court s decision in Archdiocese of New York, on which plaintiffs rely. See Opp n at 12. In that case, although the court stated that it would assume that the Departments issued the ANPRM in good faith and not as litigation posturing, Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542(BMC), 2012 WL , at *15 (E.D.N.Y. Dec. 4, 2012), the court s ruling was instead based entirely on the erroneous view that there nonetheless is a substantial possibility that the current version of the regulations will in fact be enforced against plaintiffs. Id.; see also id. at *16, *18, *21. This premise, however, ignores the uncontroverted reality that defendants have repeatedly and publicly stated including in the rule itself that they will never enforce the regulations in their current form against 1 Plaintiffs reference to cases in which for-profit entities have challenged the regulations, Pls. Opp n to Defs. Mot. to Dismiss ( Opp n ) at 1 & n.1, Jan. 16, 2013, ECF No. 29, is irrelevant. Because of their for-profit status, the plaintiffs in those cases do not qualify for the safe harbor. Plaintiffs here, all non-profits, do qualify, so the jurisdictional issues are entirely different.

3 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 3 of 13 entities like plaintiffs, and that defendants have already begun the process of amending the regulations for the very purpose of addressing the religious objections to covering contraception by religious organizations like plaintiffs. 2 Plaintiffs baseless conjecture that defendants will not do what they say they will do and are currently doing does not constitute an imminent injury for standing purposes, as every other court to rule on the issue has held. See Univ. of Notre Dame v. Sebelius, No. 3:12CV253RLM, 2012 WL , at *3-4 (N.D. Ind. Dec. 31, 2012); Zubik v. Sebelius, No. 2:12-cv-00676, 2012 WL , at *8-9, *11-12 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, No , 2012 WL , at *3-4 (M.D. Tenn. Nov. 21, 2012), appeal docketed, No (6th Cir. Dec. 19, 2012); Legatus v. Sebelius, No , 2012 WL , at *5 (E.D. Mich. Oct. 31, 2012), appeal pending (6th Cir.). Nor does planning for such an imagined scenario even if plaintiffs have actually incurred some cost to plan for something that will never happen provide standing. 3 Plaintiffs argument that an injury can be imminent even if it would not occur for a number of years, Opp n at 10-11, misses the point. The issue here is not just that the regulations will not be enforced against plaintiffs right away, but that they will never be enforced against 2 See, e.g., 77 Fed. Reg. 16,501, 16, (Mar. 21, 2012); 77 Fed. Reg. 16,453, 16,457 (Mar. 21, 2012); 77 Fed. Reg. 8725, (Feb. 15, 2012); Defs. Mem. in Supp. of Mot. to Dismiss at 3, Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542(BMC) (E.D.N.Y. Aug. 6, 2012), ECF No ( [D]efendants initiation of a rulemaking that commits to amending the preventive services coverage regulations well before January 2014 to accommodate the religious objections of organizations like plaintiffs further demonstrates the absence of any imminent harm to them. (emphasis added)); Defs. Reply in Supp. of Mot. to Dismiss at 1, 6, 7, Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542(BMC) (E.D.N.Y. Sept. 24, 2012), ECF No. 30; see also, e.g., Defs. Mem. in Supp. of Mot. to Dismiss ( Mem. in Supp. ) at 2-4, 5 n.5, 9, 13, 16, 20, Dec. 21, 2012, ECF No. 22. Moreover, defendants anticipate issuing a notice of proposed rulemaking (NPRM) in the first quarter of 2013, and a final rule by August Plaintiffs suggest that the Court s standing analysis should be lenient because plaintiffs raise First Amendment claims. Opp n at 2, 9. But this principle only applies, if at all, where there is a specific and direct threat of enforcement. Briggs v. Ohio Elections Comm n, 61 F.3d 487, 492 (6th Cir. 1995); see Bloedorn v. Grube, 631 F.3d 1218, 1228 (11th Cir. 2011); Skaggs v. Carle, 110 F.3d 831, (D.C. Cir. 1997). There is no such credible threat here because plaintiffs plans are grandfathered and/or in the enforcement safe harbor. Compare Bloedorn, 631 F.3d at 1229 (finding every indication of enforcement). And it is hard to fathom how plaintiffs can reasonably incur costs planning for the effects of a not-yet-promulgated regulation, particularly one that is intended to accommodate concerns of the very type plaintiffs raise. 2

4 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 4 of 13 plaintiffs in their present form. The Supreme Court has made clear that a time delay is only irrelevant to justiciability when the inevitability of the operation of a statute against certain individuals is patent, Reg l Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974) (emphasis added), and when it appear[s] that the [law] certainly would operate as the complainant [ ] apprehend[s] it would, Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923) (emphasis added). Not so here. Because amendments to the regulations designed to accommodate plaintiffs religious objections are underway, plaintiffs injuries are not certainly impending. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (citation omitted); see Notre Dame, 2012 WL , at *4; Zubik, 2012 WL , at *11-12; Catholic Diocese of Nashville, 2012 WL , at *4; Legatus, 2012 WL , at *5-6. Plaintiffs are not helped by the cases they cite in support of their imminent injury argument. Opp n at Those cases recognize standing in run-of-the-mill pre-enforcement suits where unlike here there was no reason to think the law will change, Thomas More Law Ctr. v. Obama, 651 F.3d 529, 538 (6th Cir. 2011), or not be enforced, 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, (7th Cir. 2006) (emphasizing that defendants had not promised non-enforcement of law against plaintiff); Vill. of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir. 2004) (finding injury where only action by [the court] could prevent the challenged fee collection). In fact, none of the cases cited by plaintiffs in support of their claim of imminent injury arise in a context comparable to this case where the challenged law is not being enforced by the government against plaintiffs and is virtually certain to change. 4 4 See, e.g., Allen v. Sch. Bd. for Santa Rosa Cnty., 782 F. Supp. 2d 1304 (N.D. Fla. 2011) (no suggestion that school board s consent decree, which was already in force, would change); Fla. Cannabis Action Network, Inc. v. City of Jacksonville, 130 F. Supp. 2d 1358, (M.D. Fla. 2001) (same). Similarly, the cases plaintiffs cite for the proposition that there is standing even if the government has suggested that it will not enforce a particular law because the government could change its mind, Opp n at 11-12, are inapposite. See Eckles v. City of Corydon, 341 F.3d 762, (8th Cir. 2003) (city stated it would not the enforce a notice to abate while the suit is pending ); Va. Soc y for Human Life, Inc. v. FEC, 263 F.3d 379, (4th Cir. 2001) (agency s non-enforcement policy was expressly limited to a defined geographic region, and plaintiff alleged a specific intent to engage in advocacy outside of that region); Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (no indication that law would change, (continued on next page ) 3

5 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 5 of 13 Plaintiffs also have not established standing by alleging current harm from the alleged uncertainty regarding whether the regulations will be amended. 5 See Opp n at Tellingly, plaintiffs hang their present-harm argument on cases wholly dissimilar from this one. In fact, once again, none of the cases plaintiffs cite, see id. at 11, 13-14, involves the present effects of a law that is undergoing amendment and not being enforced by the government during the amendment process. E.g., Clinton v. City of New York, 524 U.S. 417, 431 n.16 (1998) (law operated to presently revive plaintiff s liability and there was no suggestion law would change); see Comsat Corp. v. FCC, 250 F.3d 931, 936 (5th Cir. 2001) ( [Plaintiffs] do[] not contend that [they] lost a benefit. Thus, Clinton is inapposite to the case at bar. ). 6 Similarly, plaintiffs seize on the Seventh Circuit s statement that a present impact of a future though uncertain harm may establish injury in fact, Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 498 (7th Cir. 2005) (emphasis added); Opp n at 3, 11, but that case simply recognized a current harm stemming from an anti-competitive compact that was in force and and only indication that state would not apply law to plaintiff was informal statement made in the context of litigation); Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (enforcement was contingent on the vote of six Commissioners who split three-three with one Commissioner changing her mind at the last minute, and there was no evidence the challenged rule would change before the next vote). Indeed, courts have found promises not to enforce by the government that are similar to the enforcement safe harbor in place here sufficient to defeat jurisdiction. See, e.g., Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 490 (7th Cir. 2004); Winsness v. Yocom, 433 F.3d 727, (10th Cir. 2006); Presbytery of N.J. v. Florio, 40 F.3d 1454, (3d Cir. 1994). 5 Plaintiffs suggest that defendants assert only that Plaintiffs fail to allege an adequate injury. Opp n at 9. This is incorrect. Defendants opening brief further argues that any present planning injuries, even if cognizable, are not traceable to the challenged regulations. Mem. in Supp. at After all, it is not the challenged regulations that are causing plaintiffs to budget now for the possibility that some future rule may expose them to fines, Opp n at 6, but rather plaintiffs concerns about the content of that future rule itself. But no relief this Court could offer regarding the challenged regulations would ameliorate this alleged injury. Notre Dame, 2012 WL , at *4; see Colo. Christian Univ. v. Sebelius [ CCU ], No. 11-cv CMA-BNB, 2013 WL 93188, at *8 n.10 (D. Colo. Jan. 7, 2013). 6 See also 520 S. Mich. Ave., 433 F.3d 961 (holding that plaintiff had standing in the absence of a promise not to enforce the law at issue); Ala.-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244 (11th Cir. 2003) (no suggestion that challenged regulations, which already applied to plaintiff, would change); Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003) (no suggestion that state statute would change or not be enforced); Thomas More, 651 F.3d at 538 ( [T]here is no reason to think the law will change. ); Idaho Power Co. v. FERC, 312 F.3d 454 (D.C. Cir. 2002) (no indication that agency orders, which presently required petitioner to act, would change). 4

6 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 6 of 13 unchanging. Lac Du Flambeau, 422 F.3d at 499. Lac Du Flambeau was not a pre-enforcement challenge and has no bearing on plaintiffs standing to challenge the preventive services coverage regulations here. Moreover, whereas the policies causing the harm in that case were not certain to change, the regulations in this case are undergoing change right now. For these reasons and those contained in defendants opening brief, plaintiffs lack standing to challenge the regulations. 7 II. THE COURT SHOULD DISMISS THIS CASE FOR LACK OF JURISDICTION BECAUSE IT IS NOT RIPE 8 Even if the Court were to conclude that plaintiffs have standing, plaintiffs have not shown that this case is ripe for judicial review under the test articulated in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 9 Like the court in Archdiocese of New York, 2012 WL , at *21, plaintiffs maintain that the challenged regulations are fit for judicial review because they are final and published in the Code of Federal Regulations, Opp n at But that conclusion, once again, simply flies in the face of the government s public commitment to amend the regulations before the expiration of the safe harbor and thus ignores the reality of the regulatory landscape. CCU, 2013 WL 93188, at *7. The emphasis placed by both plaintiffs 7 Catholic Hospice s claim that it is restricted from altering its plan, Opp n at 13, is wholly predicated on speculative (and highly unlikely) future harm, and is thus insufficient to confer standing, for the reasons discussed in defendants opening brief. Mem. in Supp. at 11 n Yesterday, yet another court dismissed a challenge nearly identical to this one for lack of ripeness, for the same reasons discussed herein. Persico v. Sebelius, No. 1:12-cv-123-SJM, slip op. (W.D. Pa. Jan. 22, 2013), ECF No. 57 (attached as Exhibit 1). 9 Plaintiffs suggest this case should be subject to a relaxed ripeness standard because of the possibility of chilling effects on First Amendment rights. Opp n at 16. But the cases on which plaintiffs rely address only the chilling effects on expressive conduct, not those on the exercise of religion, and unlike here, there was no indication in those cases that the laws were subject to change or would not be enforced against the plaintiffs. See Sullivan v. City of Augusta, 511 F.3d 16, 22-24, 31 (1st Cir. 2007); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, (10th Cir. 1995); Martin Tractor Co. v. FEC, 627 F.2d 375, (D.C. Cir. 1980); see also McGlone v. Bell, 681 F.3d 718, 730 (6th Cir. 2012) (noting that subjective chill alone is insufficient without some specific action to support the fear of punishment). Here, plaintiffs exercise of religion cannot possibly be chilled given that defendants have made clear that they will never enforce the challenged regulations against plaintiffs in their current form. 5

7 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 7 of 13 and the Archdiocese of New York court on the mere fact that the regulations were issued as final rules thus elevates form over substance, CCU, 2013 WL 93188, at *7, and as plaintiffs concede, the ripeness inquiry is meant to be functional, not [] formal, Opp n at 14 (quoting Pfizer, Inc. v. Shalala, 182 F.3d 975, 980 (D.C. Cir. 1999)). Indeed, plaintiffs ignore defendants clear and repeated statements that (1) they will never enforce the regulations in their current form against entities like plaintiffs; (2) they have... committed to further amend the regulations, before the rolling expiration of the safe harbor begins, to address the concerns raised by religious organizations like plaintiffs with religious objections to providing contraceptive coverage; and (3) they have initiated a rulemaking process to do so. CCU, 2013 WL 93188, at *5, *8; see also, e.g., Wheaton Coll. v. Sebelius, No , 2012 WL , at *2 (D.C. Cir. Dec. 18, 2012); Catholic Diocese of Peoria v. Sebelius, No , 2013 WL 74240, at *5 (C.D. Ill. Jan. 3, 2013); Zubik, 2012 WL , at *8-9. Because that rulemaking process, in progress right now, will alter the very regulations at issue in this case, Occidental Chem. Corp. v. FERC, 869 F.2d 127, 129 (2d Cir. 1989), and has not yet resulted in an order requiring compliance by the [plaintiffs], Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 161 (7th Cir. 1976), plaintiffs challenge is not fit for review at this time. The argument to the contrary is inconsistent with the Supreme Court s instruction that the finality requirement should be applied in a flexible and pragmatic way. Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435 (D.C. Cir. 1986) (quotation omitted). Indeed, [i]nterpreted in a pragmatic way, the ongoing process makes defendants position tentative, as opposed to final, and because the forthcoming amendments will eliminate the need for judicial review entirely or at least narrow and refine the controversy, the regulations are not fit for review at this time. CCU, 2013 WL 93188, at *5; see Wheaton, 2012 WL , at *2; Catholic Diocese of Peoria, 2013 WL 74240, at *5; Notre Dame, 2012 WL , at *3; Catholic Diocese of 6

8 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 8 of 13 Biloxi v. Sebelius, No. 1:12CV158, 2012 WL , at *7 (S.D. Miss. Dec. 20, 2012); Zubik, 2012 WL , at *8; Catholic Diocese of Nashville, 2012 WL , at *5. 10 Thus, this case does not involve the mere contingency that [an agency] might revise the regulations at some future time, as plaintiffs claim. Opp n at 3, 16. (quoting Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77 (1965)). There is nothing contingent about defendants intent to amend the challenged regulations. See Tex. Indep. Prod., 413 F.3d at 483 (dismissing challenge as unripe where agency announced its intent to consider issues raised by plaintiff in new rulemaking). And any suggestion that plaintiffs will be unsatisfied with whatever amendments result from the pending rulemaking, see Compl , 93-96, Oct. 19, 2012, ECF No. 1, is not grounds for this Court to issue an advisory opinion on the lawfulness of the ideas proposed in the ANPRM. See, e.g., CCU, 2013 WL 93188, at *6; Zubik, 2012 WL , at *9; Belmont Abbey, 2012 WL , at *13. The fact that plaintiffs challenges may be legal and therefore may be addressed without post-enactment factual development is irrelevant to the ripeness issue here. See CCU, 2013 WL 93188, at *7. Courts may not opine on the lawfulness of regulations that are not yet final, no matter how legal the issues may be. See, e.g., Pub. Water Supply Dist. No. 8 v. City of Kearney, 401 F.3d 930, 933 (8th Cir. 2005); Motor Vehicle Mfrs. Ass n v. N.Y. State Dep t of Envtl. Conservation, 79 F.3d 1298, 1306 (2d Cir. 1996). By seeking review of the regulations now, before they have taken on fixed and final shape, plaintiffs ask the Court to issue an advisory opinion on the lawfulness of regulations that will never be enforced in their current form against them. 10 Plaintiffs attempts to distinguish Texas Independent Producers & Royalty Owners Ass n v. EPA, 413 F.3d 479 (5th Cir. 2005), and American Petroleum Institute v. EPA, 683 F.3d 382 (D.C. Cir. 2012), and ignore Bethlehem Steel Corp. v. EPA, 536 F.2d 156 (7th Cir. 1976), see Opp n at 17-19, rest largely on the inaccurate refrain that the regulations challenged here are final. See Belmont Abbey Coll. v. Sebelius, Civil Action No (JEB), 2012 WL , at *13 (D.D.C. July 18, 2012) (rejecting attempt to distinguish American Petroleum because, as in that case, the ANPRM is the product of significant research and deliberation and there is external accountability for the agency s self-imposed deadline created by publication of the safe harbor end dates). 7

9 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 9 of 13 Moreover, the hardship of which plaintiffs complain that the preventive services coverage regulations require advanced planning and impact their current decision-making, see Opp n at is not sufficient. Indeed, just as with plaintiffs standing argument, all of their alleged hardships stem from the mistaken assumption that defendants will enforce the regulations in their present form against plaintiffs. Thus at bottom, this hardship is rooted in a desire to plan for contingencies that likely will never arise. See CCU, 2013 WL 93188, at *8; Catholic Diocese of Nashville, 2012 WL , at *5. And because plaintiffs do not know what form the regulations will take once they are amended other than that they will attempt to accommodate concerns of the very type plaintiffs have raised it is not clear what contingencies plaintiffs could plan for. What is clear is that any planning plaintiffs undertake (and any costs plaintiffs choose to incur) is not caused by defendants actions. Plaintiffs provide no reason for a different result here. 11 The cases on which plaintiffs rely do not suggest that planning for hypothetical future contingencies is a sufficient hardship to make this case ripe for review. For instance, in Pac. Gas & Elec. Co. v. State Energy Res. Cons. & Dev. Comm n, 461 U.S. 190 (1983), the plaintiff challenged a state law that currently imposed a moratorium on construction of nuclear plants until the State Energy Commission determined that there has been developed demonstrated technology or means for the disposal of high-level nuclear waste. Id. at 198 (citation omitted). Similarly, in New York v. United States, 505 U.S. 144, 175 (1992), and Pa. Dep t of Pub. Welfare v. HHS, 101 F.3d 939 (3d Cir. 1996), the statutes and regulations being challenged were already in place and being applied to the plaintiffs, with no suggestion they would change in the future. Thus, unlike the challenged regulations in this 11 Plaintiffs cite Newland v. Sebelius, Civil Action No. 1:12-cv-1123-JLK, 2012 WL (D. Colo. July 27, 2012), appeal docketed, No (10th Cir. Sept. 26, 2012), for the point that changes to an employee health plan require advance planning, see Opp n at 19, but they ignore that the employer in that case, unlike plaintiffs here, did not have the benefit of the safe harbor and therefore had to comply with the contraceptive coverage requirement by November 1, Newland, 2012 WL , at *2, *4. Moreover, there was no indication that the requirement would change as to the Newland plaintiffs. Unlike plaintiffs here, then, the Newland plaintiffs were planning for a certainty, not an improbability. 8

10 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 10 of 13 case, the challenged laws in Pacific Gas, New York, and Pa. Dep t of Pub. Welfare immediately affected the day-to-day operations of the plaintiffs. Indeed, in none of the cases plaintiffs cite with respect to hardship was there any indication that the defendants intended to amend the challenged law, much less that they were actively doing so. 12 For these reasons, and those in defendant s opening brief, plaintiffs challenge is not ripe. III. STANDING AND RIPENESS, NOT MOOTNESS, ARE THE PROPER STANDARDS TO APPLY The Court should reject plaintiffs attempts to recast defendants jurisdictional arguments as questions of mootness. See Opp n at 2-3, While standing doctrine seeks to ensure the parties have a concrete stake in the matter, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191 (2000), and while the ripeness doctrine seeks to protect agencies premature adjudication of abstract administrative policies, Nat l Park Hospitality Ass n, 538 U.S. at , mootness doctrine serves the distinct interest of avoiding abandon[ing] [a] case at an advanced stage after it has been litigated for years, where doing so may prove more wasteful than frugal. Laidlaw, 528 U.S. at Because this case has not been litigated for years and is not at an advanced stage, the interests served by the mootness doctrine simply are not implicated here. 13 This case would be about mootness if plaintiffs had already established injury, the case was proceeding, and then the cause of the injury disappeared. But here, any injury is speculative and in the future, which raises quintessential standing and ripeness questions. 12 See, e.g., CSI Aviation Servs., Inc. v. DOT, 637 F.3d 408, 412 (D.C. Cir. 2011) (challenged agency statement gave no indication that it was subject to further agency consideration or possible modification (quoting Ciba-Geigy, 801 F.2d at )); Wis. Pub. Power Inc. v. FERC, 493 F.3d 239 (D.C. Cir. 2007) (per curiam) (challenged agency decision was already being enforced, with no suggestion agency would change it); Metro. Milwaukee Ass n of Commerce v. Milwaukee Cnty., 325 F.3d 879, (7th Cir. 2003) (challenged state law was in place and was already impacting contracts between plaintiffs and defendant). 13 Plaintiffs rely on CSI Aviation Servs. to suggest that mootness is the proper analysis, see Opp n at 17, but plaintiffs discussion of that case is misleading. The court did not recast the defendant s ripeness argument as a mootness argument; it instead rejected the defendant s alternative mootness argument after determining that the plaintiffs claims were ripe. See CSI Aviation Servs., 637 F.3d at In any event, with respect to ripeness, that case does not support plaintiffs because, unlike here, the agency had taken a definitive legal position. Id. at 412; see Notre Dame, 2012 WL , at *3 (drawing same distinction). 9

11 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 11 of 13 Indeed, the plaintiffs in many similar cases challenging these regulations have raised the same mootness arguments, all to no avail. See, e.g., Wheaton Coll. v. Sebelius, Civil Action No (ESH), 2012 WL , at *4 n.6 (D.D.C. Aug. 24, 2012). IV. PLAINTIFFS LACK BOTH STANDING AND RIPENESS TO ASSERT EACH OF THEIR CLAIMS Finally, plaintiffs wholly miss the mark by arguing that the enforcement safe harbor and the ongoing rulemaking do not affect their challenge to the religious employer exemption and their Administrative Procedure Act claims. See Opp n at 7-9. Because plaintiffs cannot know what form the final regulations will take, see Wheaton, 2012 WL , at *8 & n.11, it is pure speculation to suggest that the amended regulations will not address these concerns as well. With respect to the religious employer exemption, defendants have already made clear that an employer can avail itself of the safe harbor without prejudicing its ability to later avail itself of the religious employer exemption. 14 Moreover, although plaintiffs contend that the preventive services coverage regulations are contrary to certain other provisions in federal law, see Opp n at 8-9, that contention in addition to lacking merit assumes that the regulations will remain in their current form. Indeed, it is difficult to imagine how the Court could meaningfully review regulations that are still in flux, as any ruling would be irrelevant once the ongoing rulemaking process is complete. Because there is a substantial likelihood that plaintiffs claims will be materially affected, if not made entirely irrelevant, by changes to the regulations, this Court should dismiss all of plaintiffs claims for lack of standing and ripeness. See, e.g., Zubik, 2012 WL , at *12-13 (dismissing nearly identical challenge to religious employer exemption and APA claim); Persico, Ex. 1, at 33-37, (same). CONCLUSION The Court should grant defendants motion to dismiss. 14 See HHS, Guidance on the Temporary Enforcement Safe Harbor (Aug. 15, 2012), available at (last visited Jan. 23, 2013). 10

12 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 12 of 13 Respectfully submitted this 23rd day of January, 2013, STUART F. DELERY Principal Deputy Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General WIFREDO A. FERRER United States Attorney JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director _/s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No ) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C Tel: (202) Fax: (202) Attorneys for Defendants 11

13 Case 1:12-cv DLG Document 30 Entered on FLSD Docket 01/23/2013 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on January 23, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which sent notice of such filing to all parties. /s/ Michelle R. Bennett MICHELLE R. BENNETT SERVICE LIST E. Kendrick Smith Michelle R. Bennett Janine Cone Metcalf United States Department of Justice David M. Monde Civil Division, Federal Programs Branch Jason T. Burnette 20 Massachusetts Avenue NW, Room 7306 James R. Williams Washington, DC Jones Day Telephone: Peachtree Street NE Facsimile: Suite 800 michelle.bennett@usdoj.gov Atlanta, GA Telephone: Counsel for Defendants Facsimile: eksmith@jonesday.com jmetcalf@jonesday.com dmmonde@jonesday.com jtburnette@jonesday.com jrwilliams@jonesday.com Counsel for Plaintiffs Roberto J. Diaz, Esq. J. Patrick Fitzgerald and Associates, P.A. 110 Merrick Way, Suite 3-B Coral Gables, FL Telephone: Facsimile: rjd@jpfitzlaw.com Counsel for Plaintiffs

14 Case 1:12-cv DLG Document 30-1 Entered on FLSD Docket 01/23/2013 Page 1 of 45 EXHIBIT 1

15 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 1 of 44Page 2 of 45 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MOST REVEREND LAWRENCE ) T. PERSICO, BISHOP OF THE ) ROMAN CATHOLIC DIOCESE ) OF ERIE, as Trustee for the ) Roman Catholic Diocese of Erie, ) A Charitable Trust, et al. ) ) Plaintiff, ) Case No. 1:12-cv-123-SJM ) v. ) ) KATHLEEN SEBELIUS, in her ) official capacity as Secretary of the ) U.S. Department of Health and ) Human Services, et al., ) ) Defendants. ) MEMORANDUM OPINION McLAUGHLIN, SEAN J., District J., Following the enactment of the Affordable Care Act (or ACA ) in March of 2010, group health plans and health insurance issuers not otherwise grandfathered under the Act are required to provide coverage for certain preventive health services including FDA approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity -- without cost sharing. Plaintiffs in this lawsuit -- the Roman Catholic Diocese of Erie (the Diocese ), the Most Reverend Lawrence T. Persico (as Bishop and Trustee of the Diocese), the St. Martin Center, Inc., and the Prince of Peace Center, Inc. have sought to invalidate and enjoin this regulation (hereinafter referred to as the Mandate ) on the grounds that it violates the Plaintiffs rights under the First Amendment, the Religious Freedom and Restoration 1

16 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 2 of 44Page 3 of 45 Act, and the Administrative Procedures Act. Named as Defendants are the Secretaries of the U.S. Departments of Health and Human Services, Labor, and Treasury as well as the Departments themselves. This Court has jurisdiction over the matter pursuant to 28 U.S.C. 1331, 1343(a)(4), and 1346(a)(2). Presently pending before the Court is the Defendants motion to dismiss this action for lack of standing and/or ripeness. Plaintiffs have filed a memorandum in opposition to this motion, which is supported by various exhibits. 1 The matter has been fully briefed and argued and is ripe for disposition. I. STANDARD OF REVIEW Defendants motion to dismiss for lack of jurisdiction, filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, concerns the Court s very power to hear the case. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.2006) (citation omitted). Our Court of Appeals has explained that there are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact. When considering a facial attack, the Court must consider the allegations of the complaint as true, and in that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion. Id., at 302 n. 3 (citation omitted). A factual attack, on the other hand, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction... there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will 1 In addition, certain interested parties have filed briefs as amicus curiae in this matter. 2

17 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 3 of 44Page 4 of 45 not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Id. at 302 n.3 (citation omitted) (ellipsis in the original). Here, the parties are in agreement that the Defendants jurisdictional challenge should be treated as a factual challenge, albeit one in which Plaintiffs factual averments stand largely unrebutted. Both sides further agree that Plaintiffs bear the burden of establishing this Court s jurisdiction and, therefore, standing and ripeness. We proceed accordingly. II. LEGAL BACKGROUND The provision being challenged in this lawsuit is, as one court has stated, the result of a complex history of Congressional legislation and agency rulemaking involving the Departments of Labor ( DoL ), the Department of the Treasury ( DoT ), and the Department of Health and Human Services ( HHS ) (collectively, the Departments ). The Roman Catholic Archdiocese of New York v. Sebelius, --- F. Supp. 2d ---, 2012, WL at *1 (E.D.N.Y. Dec. 4, 2012). Because the U.S. District Court for the Eastern District of New York has aptly summarized the relevant legal history of the so-called mandate provision as it pertains to the issues in this case, we quote liberally from the Court s decision in Roman Catholic Archdiocese of New York v. Sebelius: In March 2010, Congress enacted the ACA as well as the Health Care and Education Reconciliation Act. These acts established a number of requirements relating to group health plans, a term which encompasses employer plans that provide health care coverage to employees, regardless of whether the plans are insured or self-insured. See 42 U.S.C. 300gg 91(a)(1); Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,727 (July 19, 2010) ( Interim Final Rules ). As is relevant here, the ACA requires that group health plans provide coverage for a number of 3

18 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 4 of 44Page 5 of 45 preventative medical services at no charge to the patient. 300gg 13. Specially, the ACA provides that a group health plan must at a minimum provide coverage for and shall not impose any cost sharing requirements for[,] among other things, women's preventative care and screenings... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration[.] 300gg 13(a)(4). FN 2 FN 2. The Health Resources and Services Administration ( HRSA ) is an agency within HHS. The ACA's preventative services coverage requirement does not, however, apply to group health plans that are grandfathered. See 42 U.S.C (a)(2). A group health plan is grandfathered when at least one person was enrolled in the plan on March 23, 2010 and the plan has continually covered at least one individual since that date. See 26 C.F.R T(a)(1)(i)(DoT); 29 C.F.R (a)(1)(i)(DoL); 45 C.F.R (a)(1)(i)(HHS). A plan may lose its grandfathered status, however, if, when compared to the terms of the plan as of March 23, 2010, it eliminates benefits, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly decreases an employer's contribution rate, or imposes or lowers an annual limit on the dollar value of benefits. See 26 C.F.R T(g)(1) (DoT); 29 C.F.R (g)(1)(DoL); 45 C.F.R (g)(1) (HHS). The Departments began issuing regulations implementing the ACA in phases. On July 19, 2010, they announced that HHS was developing the HRSA guidelines and expected to issue them by August 1, See Interim Final Rules, 75 Fed. Reg. at 41,728. Since there were no existing HRSA guidelines concerning preventative care and screenings for women at the time of the Interim Final Rules, HHS commissioned the Institute of Medicine ( IOM ), a Congressionally-funded body, with review[ing] what preventative services are necessary for women's health and well-being and recommending comprehensive guidelines, as called for by the ACA. On July 19, 2011, IOM published a report recommending the inclusion of certain preventative medical services in HRSA's guidelines. Among other things, IOM recommended that group health plans be required to cover the full range of Food and Drug Administration [ FDA ]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. FDA-approved contraceptive methods encompass oral conceptive pills, diaphragms, intrauterine devices, and emergency contraceptives, which, according to plaintiffs, can cause abortions. HRSA adopted IOM's recommendations on August 1, Two days later, the Interim Final Rules were amended to provide HRSA additional discretion to exempt certain religious employers from the [HRSA] Guidelines where contraceptive services are concerned. 76 Fed. Reg. 46,263 (Aug. 3, 2011). See also 45 C.F.R (a)(1)(iv)(A). In order to qualify for the religious employer exemption, an organization must meet all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. 4

19 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 5 of 44Page 6 of 45 (2) The organization primarily employs persons who share the religious ten[e]ts of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. FN3 FN 3. These sections of the Internal Revenue Code apply to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of any religious order. 26 U.S.C. 6033(a)(1), (a)(3)(a)(i), (a)(3)(a)(iii). 45 C.F.R (a)(1)(iv)(B)(HHS). See also 29 C.F.R (a)(1)(iv)(DoL). HRSA exercised its discretion under the amended Interim Final Rules and exempted the religious employers who satisfy these criteria from the requirement of covering contraceptive services. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725, 8,726 (Feb. 15, 2012). The Departments received over 200,000 responses to their request for comments on the amended Interim Final Rules. Many of the comments were submitted by religiously-affiliated institutions and asserted that the religious employer exemption was too narrow and that the limited scope of the exemption raised religious liberty concerns. Id. at 8,727. On February 15, 2012, the Departments finalized the amended Interim Final Rules without making any changes to the criteria used to determine whether an organization qualified for the religious employer exemption. Id. These finalized amended rules are the operative regulations at issue in this suit and, together with the HRSA guidelines, constitute the Coverage Mandate. See 29 C.F.R (a)(1)(iv)(DoL); 45 C.F.R (a)(1)(iv) (HHS). At the same time that they finalized the Interim Final Rules, however, the Departments announced a temporary enforcement safe harbor period during which they planned to develop and propose changes to these final regulations that would meet two goals providing contraceptive coverage without cost-sharing to individuals who want it and accommodating nonexempted, non-profit organizations' religious objections to covering contraceptive services [.] 77 Fed. Reg. at 8,727. Without the safe harbor, non-grandfathered plans would be required to comply with the Coverage Mandate for plan years beginning on or after August 1, The safe harbor extended this date, by a year, to plan years beginning on or after August 1, 2013, during which time the Departments agreed not to take any enforcement action against an employer or group health plan that complies with the conditions of the safe harbor. See HHS, Guidance on Temporary Enforcement Safe Harbor, at 3 (Aug. 15, 2012), available at services guidance pdf (last visited Dec. 3, 2012). In order to comply with the 5

20 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 6 of 44Page 7 of 45 terms of the safe harbor, the organization must (1) be organized and operate as a non-profit entity, (2) have consistently not provided all or the same subset of contraceptive coverage otherwise required at any point from February 10, 2012 onward because of the organization's religious beliefs, (3) provide notice to participants that some or all contraceptive services will not be covered for the first plan year beginning on or after August 1, 2012, and (4) provide a certification that it satisfies these criteria. Consistent with their announced plan to develop and propose changes to the Interim Final Rules, on March 21, 2012, the Departments filed an advance notice of proposed rulemaking ( ANPRM ) in the Federal Register concerning possible means of accommodating religious organizations' objections to the Coverage Mandate. See Certain Preventative Services under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). Specifically, the ANPRM presents questions and ideas and provides an opportunity for any interested stakeholders to provide advice and input into the policy development relating to the accommodation to be made with respect to non-exempted, non-profit religious organizations with religious objections to contraceptive coverage. Id. at 16,503. One possible accommodation that the Departments intend to propose is to require health insurance issuers to provide health insurance coverage that excludes contraceptive services to objecting religious organizations while, at the same time, offering contraceptive coverage directly to plan participants without charging either the participants or the organization. Id. at 16,505. Roman Catholic Diocese of New York v. Sebelius, 2012 WL at *1-3. As the foregoing discussion explains, the Departments, in their March 21, 2012 ANPRM, lay out a possible accommodation whereby health insurance companies would be required to offer group health insurance coverage, minus contraceptive coverage, to religious organizations while simultaneously providing contraceptive coverage directly to plan participants and beneficiaries. See Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg , (Mar. 21, 2012). Under this proposed accommodation, the health insurance company would not be permitted to impose any cost-sharing on the part of the plan participants and beneficiaries and would be further precluded from imposing any premium charge to the religious organization relative to this separate contraceptive coverage. Id. For religious organizations like the Plaintiffs which are self-insured, the ANPRM states Defendants intent to propose that a third- 6

21 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 7 of 44Page 8 of 45 party administrator of the group health plan or some other independent entity assume this responsibility. Id. According to the ANPRM, the Defendants suggest multiple options for how contraceptive coverage in this circumstance could be arranged and financed in recognition of the variation in how such self-insured plans are structured and different religious organizations perspectives on what constitutes objectionable cooperation with the provision of contraceptive coverage. Id. III. FACTUAL AND PROCEDURAL BACKGROUND 2 A. The Parties 1. Plaintiffs Persico and the Diocese Plaintiff, the Most Reverend Lawrence T. Persico, is Bishop and Trustee of Plaintiff the Roman Catholic Diocese of Erie (the Diocese ). (Complaint 2.) 3 The Diocese is a nonprofit Pennsylvania Charitable Trust with a principal place of administration in Erie, Pennsylvania. (Id. at 28.) It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. (Id.) The Diocese consists of 117 parishes serving a thirteen-county region, including approximately 222,000 individuals of Catholic faith. (Id. at 42.) 2 The following facts are taken from either the Plaintiff s complaint or their exhibits in support of their memorandum opposing the pending motion. In either event, the following averments stand unrebutted on this record. 3 The Complaint originally named as Plaintiff the Most Reverend Donald W. Trautman, proceeding in his capacity as Bishop and Trustee of the Diocese. On October 9, 2012, the caption was amended to reflect the substitution of Lawrence T. Persico in place of Donald W. Trautman, following Bishop Trautman s retirement. (See Order of 10/9/12 [ECF No. 39].) 7

22 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 8 of 44Page 9 of 45 The Diocese serves both Catholic and non-catholic residents of Northwestern Pennsylvania in three main ways: by educating children within the Diocese s school system, by promoting spiritual growth, and by service to the community. (Complaint 2, 6, 40.) The Diocese carries out this work both on its own and through its support of the Catholic Charities of the Diocese of Erie, whose charitable programs include those operated by Plaintiffs St. Martin Center, Inc. ( SMC ) and Prince of Peace Center, Inc. ( PPC ). (Id.) Through its numerous elementary, middle and secondary schools, the Diocese educates over 7,500 students of all faiths. It also offers tuition assistance for students based solely on financial need. (Complaint 41.) In addition to serving the spiritual needs of its Catholic residents and educating Catholic and non-catholic students, the Diocese serves thousands of Northwest Pennsylvanians through its social services arms. (Complaint 44.) For example, many non-catholics are served by the Diocese s post-abortion ministry, prison ministry, family ministry, disability ministry, international Diocesan missions, various respect life organizations, and the numerous religious and non-religious charities that receive the Diocese s financial support, including the following: (a) St. Elizabeth Center, which operates a food pantry, thrift store, and clothing shop for lower-income individuals; (b) The Good Samaritan Center, a shelter for homeless men and provider of an emergency one-family apartment and other assistance; (c) Better Homes for Erie, a provider of affordable housing to low-income families; and (d) Catholic Charities Counseling and Adoption Services, a provider of professional counseling, adoption counseling, pregnancy counseling, and refugee resettlement services. (Id. at 45.) 8

23 Case 1:12-cv DLG Case 1:12-cv SJM Document 30-1 Document Entered 57 on Filed FLSD 01/22/13 Docket 01/23/2013 Page 9 of 44Page 10 of 45 These social service programs, through support from the Diocese, provide aid to over 50,000 individuals each year without regard to the individuals religion, race, or financial condition. (Id. at 46.) The Diocese would not be able to provide all of the foregoing social services without the financial contributions of its donors and the work of its numerous volunteers. (Id. at 48.) The Diocese employs approximately 70 full-time equivalent employees. (Affidavit of David J. Murphy [24-3], Ex. 2 to Pls. Mem. In Opp. to Defs. Mot. to Dismiss, at p. 3, 5.) However, the Diocese does not know how many of its employees are Catholic. (Complaint 49.) The Diocese educates and assists tens of thousands of individuals but it is unknown how many of those educated or served by the Diocese are Catholic. It is therefore unclear to the Diocese whether it would qualify for the exemption from the challenged mandate afforded to religious employers. (Id.) The Diocese operates a self-insured health plan. 4 (Complaint 52.) Diocesan health plans are administered by Third Party Administrators ( TPAs ), which are paid a flat administrative fee for each individual covered by the plan. (Id. at 53.) The TPAs do not pay for any services received by the Diocese s covered employees. (Id.) Through its health plan, the Diocese provides health insurance coverage to approximately 803 employees, including those employed directly by the Diocese as well as those employed by the various parishes, schools, and charitable agencies of the Diocese. The Diocese also covers the dependents of these employees, resulting in a total of approximately 994 insured individuals. (Murphy Affid. at 5.) 4 As a self-insurer, the Diocese does not contract with a separate insurance company for the provision of health care coverage; instead, the Diocese itself functions as the insurance company by underwriting the medical costs of its employees and the employees of its affiliated corporations. (Complaint 52.) 9