Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Marc O. DeGirolami

Notre Dame HHS Mandate Lawsuit Dismissed on Standing and Ripeness Grounds

Well, it seems I was a bit…unripe in expressing the view that the HHS mandate suits seem not to be going the government’s way.  The United States District Court for the Northern District of Indiana has dismissed the University of Notre Dame’s complaint against Health and Human Services on standing and ripeness grounds.  Notre Dame falls within the safe harbor provision and so the as yet unknown ‘Advanced Notice of Proposed Rulemaking/putative proposed accommodation/vague promise of emendation of the current legal rule’ applies to it.  I quote the court’s language (along with its citations to those cases dealing with entities within and outside the safe harbor, many of which we have discussed before at CLR Forum) at length, as it may be helpful to readers to have it all in front of them:

This is one of dozens of similar suits filed across the nation, and courts have ruled on similar dismissal motions in several of those cases. Some of those rulings dealt with plaintiffs not in the safe harbor; as will be seen, those plaintiffs’ circumstances are too dissimilar to Notre Dame’s for those rulings to be helpful. See, e.g., Grote Indus., LLC v. Sebelius, No. 4:12cv00134-SEB-DML S.D. Ind. Dec. 27, 2012); Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (W.D.Okla. 2012), application for injunction denied 2012 WL 6698888 (U.S., Dec. 26, 2012) (Sotamayor, J.); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C., Nov. 16, 2012); Legatus v. Sebelius 2012 WL 5359630 (E.D.Mich., Oct. 31, 2012); O’Brien v. U.S. Department of Health and Human Services, 2012 WL 4481208 E.D.Mo., Sept. 28, 2012); Newland v. Sebelius, 2012 WL 3069154 (D.Colo., July 27, 2012).

Of the rulings involving plaintiffs in the safe harbor, all but one have found the claims unripe and the plaintiffs to have lacked standing. Zubik v. Sebelius, 2012 WL 5932977 (W.D.Pa., Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, 2012 WL 5879796 (M.D.Tenn., Nov. 21, 2012); Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012), appeal held in abeyance 2012 WL 6652505 (D.C.Cir. 2012); Belmont Abbey College v. Sebelius, 2012 WL 2914417 (D.D.C. 2012), appeal held in abeyance sub nom Wheaton College v. Sebelius, 2012 WL 6652505 (D.C.Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Svcs., 2012 WL 2913402 (D.Neb. 2012); contra, Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864 E.D.N.Y. ,2012).  None of those rulings bind this court, but the majority are persuasive. Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them.

Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement . . . .

Turning first to ripeness, the challenged regulatory requirement isn’t sufficiently final. Notre Dame is correct that regulation itself claims to be final, 45 C.F.R. § 147.130(a)(1)(iv), but events following the regulation’s adoption make clear that it isn’t final. The defendants have announced their intention to refashion the rule in an effort to address concerns such as those Notre Dame has raised and, by virtue of the safe harbor provision, have exempted Notre Dame from the rule for the time believed to be required for the re-fashioning. The government is entitled to a presumption of good faith in such promises . . . .

Our defendants have taken prompt and concrete action — the safe harbor provision — indicating that its [sic] rule is subject to reconsideration and modification.  Although Notre Dame is correct that an agency can’t “stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way,” American Petroleum Institute v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012), none of the cases on which Notre Dame relies involve any parallel to the safe harbor provision that protects Notre Dame and others like it from the challenged rule.

Turning back to the question of standing, the challenged regulatory
requirement isn’t the cause of the injuries of which Notre Dame complains. Taking the defendants at their word concerning the intended reworking of the rule, this regulatory requirement won’t require Notre Dame to conduct itself in ways its Catholic mission forbids. This regulation’s replacement might do so, but no one can say because that future rule hasn’t been promulgated. It is enough to know that the present regulation is to be replaced by another, and the safe harbor is protecting Notre Dame from harm to its religious precepts until that replacement occurs.

Indeed, “no one can say” what the replacement rule might do because “no one can say” what the promised proposed rule is, or might be, or is contemplated to be.  But every banana ripens at some point.

The case is University of Notre Dame v. Sebelius, No. 3:12CV253RLM (N.D. Ind. Dec. 31, 2012).

Posted on by Marc O. DeGirolami

Ripeness and the Passage of Time

Here’s a little thought about the effect of the passage of time on adjudication. The temporal dynamic I have in mind is the difference between being too late and being too early.  Being too late is best conceptualized in either/or terms.  If you file on time, you’re “in” and your law suit can move forward; if you file too late, your action is time-barred or falls outside an applicable statute of limitations, and you are “out.”  The issue of time is clean, hard-edged, and certain.  Acceptable and unacceptable are clearly designated.  The metaphors are of bells tolling, after which there is silence, or of nicely demarcated spatial boundaries.  Any exceptions are just that: exceptions to the rule, rather than judgments about the interpretation of the rule.

But a different conception of time best describes the condition of being too early.  Like a fruit, you want your action to be ripe.  The metaphor is one of maturity, and it is inevitably subject to graduated and individuated assessment.  The goal is to strike at a middle-point, at a moment between the time when the banana is cucumber-ish (unripe) and when it is a slimy, brown, putrid thing (overripe, or perhaps moot).  Likewise, the manipulation of time in the context of the metaphor of maturation looks distinctive.  The riper the action becomes — a function in part of the incremental passage of time — the more work the party resisting its ripeness must do to persuade the court that the time is not yet ripe to hear it.  With each day, the banana becomes more golden, and its characterization as unripe becomes more challenging.  And that is when the rhetoric of immaturity can assume an important function.

Take the HHS mandate litigation.  My own view is that these issues of time were in part responsible for the Eastern District of New York’s rejection of the standing and ripeness challenge by the federal government, where previous courts, adjudicating the claims at previous moments in time, had found otherwise.  Time had done, and may continue to do, its maturing work.

Yesterday, the United States Court of Appeals for the D.C. Circuit handed down a short order holding in abeyance Wheaton College’s complaint against HHS as, at present, unripe.  The court dutifully noted the representation of the government in the Advance Notice of Proposed Rulemaking of the forthcoming accommodation/change/emendation/difference.  But the court also said that at oral argument, “the government went further . . . . [I]t represented to the court that it will never enforce [the existing rule] in its present form against the appellants or those similarly situated . . . . We take the government at its word and will hold it to it.”  The first italics is in the original; the second is mine.

A couple of thoughts.  First, it is interesting to see that as time progresses, and the case moves toward maturity, the government must work harder, and extend itself further, to persuade a court that the case has not hit sufficient maturation just yet.  So the government made the calculation that for the sake of gaining more time, it needed to promise “never” to enforce the existing rule against the claimants, a statement that, it would appear from the court’s language, it had not made before and had a psychological effect on the court’s judgments about maturity. Second, the precise language used by the court to describe the oral representation of the government is interesting.  In order to stave off review but to keep things sufficiently vague to give itself maximal freedom, the government represented that it will not enforce the existing rule “in its present form.”  But that simply restates the promise that it plans to amend the rule.  So one wonders exactly what of substance the oral representation adds to the government’s previous position.  Perhaps nothing.  It may instead be that the key function of the oral representation is rhetorical.  It sounds like a change of position, though really it isn’t.  But the effect of the representation is to make the banana look greener and less golden than it is.  It is the kind of rhetoric that can make a difference when the question is whether you are too early, but not too late.

Posted on by Marc O. DeGirolami

An Important HHS Mandate Decision: Standing & Ripeness Satisfied

The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI).  The case is important on the issues of standing and ripeness.  The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014).  The decision is complicated and has several moving parts.  Here’s the scoop, after the jump.

Read more

Posted on by Marc O. DeGirolami

Another Mandate Lawsuit Dismissed on Ripeness Grounds

The United States District Court for the Western District of Pennsylvania has dismissed without prejudice the complaint of the Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, and Catholic Cemeteries against the federal government related to the contraception mandate.  The Diocese of Pittsburgh operates several schools and other charitable institutions, and it self-insures its employees; some of its health plans were grandfathered in by the regulations, some were not.

The court held that the temporary safe harbor provision (which expires on January 1, 2014) and the Advanced Notice of Proposed Rulemaking filed by the federal government on March 21, 2012, which suggests that the government may be amenable to an emendation of the (now final) rule, both indicate that the case is unripe.  As my constitutional law students studying for their Tuesday examination will surely know, ripeness turns on the questions of “fitness” of the issue for adjudication and hardship to the parties of denying review.  The court held that even though the current law is final and has been formally promulgated, the noises made by the government about changing the regulations — in combination with the temporary safe harbor and the presumption that the government is acting in good faith — mean that the case is unripe.  The reasoning more or less follows the pattern set in the Belmont Abbey case (see prior posting).  For good measure, the court held that plaintiffs here had failed to allege standing as, in the court’s view, the injury alleged was too speculative.

The case is Zubik v. Sebelius, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012).

Posted on by Marc O. DeGirolami

Wheaton College Case Against HHS Dismissed on Standing and Ripeness Grounds

The U.S. District Court for the District of Columbia has dismissed Wheaton College’s complaint against Kathleen Sebelius and the Department of Health and Human Services on standing and ripeness grounds.  As to standing, the court held that Wheaton’s allegations only made out claims of “future possible injury” because HHS has informed Wheaton that it qualifies for the safe harbor provisions of the mandate, and because an enforcement action by HHS within the safe harbor is neither imminent nor likely.  As to ripeness, the court said: “Because they are in the process of being amended, the preventive services regulations are by definition a tentative agency position,” and therefore unfit for adjudication.

The case is Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. Aug. 24, 2012).

Posted on by Marc O. DeGirolami

States’ Lawsuit Against the HHS Mandate Dismissed

Yesterday was an active day for the HHS Mandate litigation.  The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness. 

The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.

Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs.  These conjectures were too speculative to confer standing.

Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to.  Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.

I’m sensing a pattern here…

Posted on by Marc O. DeGirolami

Belmont Abbey College HHS Mandate Suit Dismissed on Standing and Ripeness Grounds

Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment.  The grounds are lack of standing and ripeness.  The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status.  It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”

But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor.  It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.  “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.”  The court also dismissed the case for lack of ripeness.

There is an interesting feature of the case that appears in the ripeness discussion.  Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception.  The court said this:

This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.

Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking.  Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be.  Dismissal was without prejudice.

It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.