July 19, 2012
Belmont Abbey Lawsuit Dismissed on Standing and Ripeness Grounds
Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey College'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 on an otherwise final rule 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.
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What is the compelling reason The State is using to mandate that every Insurance Company must be a contraception provider, and on what basis do they claim the authority to dictate to every Insurance Company that they must provide contraception coverage?
Posted by: N.D. | Jul 19, 2012 11:29:30 AM
This sounds an awful lot like ripeness for me but not for thee.
HHS gets a pass on the content of the current rule because it's solicited comments on a proposed new rule. But it also gets a pass on the proposed rule because it might, through some entirely unforeseen course of events, make the final rule different?
Even if this isn't a double standard, I am inclined to regard the court's dismissal of the "evading review" argument as somewhat comical. "[T]he product of significant research and deliberation" my foot.
Maybe declaratory judgments are unconstitutional. But if we're going to have them, it's nonsense to say that they can be evaded by regulatory hide-the-ball tricks.
Posted by: Titus | Jul 19, 2012 1:46:08 PM
A while back, Kevin Walsh had a very thoughtful post about what he termed 'rope-a-dope' rulemaking: http://walshslaw.wordpress.com/2012/02/10/rope-a-dope-rulemaking-to-put-off-religious-liberty-litigation-loss/
It seems to me that the concerns voiced by Kevin were acknowledged by the court here. But HHS had taken a sufficient number of concrete steps to allay those concerns. You should also take a look (if you are interested) in the DC Circuit's American Petroleum case, which the district court was bound by and applied in a (to my mind -- though this is not my area) fairly workmanlike manner.
Just a short recap: in American Petroleum (decided just this past June), the American Petroleum Institute petitioned a federal court to review a 2008 EPA regulation which deregulated many "hazardous secondary materials" under the Resource Conservation and Recovery Act. The claim was that EPA erred in failing to include a particular category of hazardous substance. But after the parties completed briefing, EPA issued a notice of proposed rulemaking which, if finalized, would really change the 2008 rule.
In "holding the case in abeyance" on ripeness grounds (more on this below), the DC Circuit said that adjudicating the claim before the proposed rulemaking deprives the plaintiff of the chance to change the government's mind about its rule. Another justification for forbearance, the DC Circuit said, was that further rulemaking would narrow the issues for litigation later on. "It would hardly be sound stewardship of judicial resources to decide this case now on the basis of the disparate-treatment argument given that an already published proposed rule, if enacted, would dispense with the need for such an opinion in a matter of months."
And then have a look at these lines, on which the district court relied:
"All of this is not to say an agency can stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way. If that were true, a savvy agency could perpetually dodge review . . . . That risk of agency abuse is not present here. To begin with, the 2011 proposed rule is clearly not some non-substantive, thinly veiled attempt to evade review; it is a complete reversal of course on EPA's part that, if adopted, would necessitate substantively different legal analysis and would likely moot the analysis we could undertake if deciding the case now. Moreover, the happening or timing of the future event we are awaiting to ripen (or solve) this dispute—final action on the 2011 proposed rule—is not within the discretion of or controlled by the agency as would usually be the case. EPA did not issue a notice of proposed rulemaking on its own volition or set its own deadline for final action. Rather, EPA agreed to issue the 2011 proposed rule as part of its settlement with the Sierra Club, which had sought repeal of the 2008 Rule based on allegations that it was not sufficiently protective of human health and the environment. That settlement requires EPA to take final action concerning the proposed rulemaking by December 31, 2012. This definite end date to the delay we would effectively impose by deeming this case unripe further alleviates any concern that EPA is using a new rulemaking to elude review."
Of course, in the HHS mandate litigaton, there is no such deadline and the notice of proposed rulemaking came to the court in a different posture. But that alone was not enough to persuade the judge that this case did not present many of the same ripeness concerns as American Petroleum. This is not an unreasonable application of binding law, in my view. It might have been preferable for this court to hold the case in abeyance, as did the DC Circuit. Abeyance is a procedure used when cases might settle. Parties can seek redress later on, if necessary. But all in all, it seems to me (again, as someone who is not an expert in ripeness doctrine) that American Petroleum was some strong precedent for this district court judge to deal with.
Posted by: Marc DeGirolami | Jul 19, 2012 2:17:07 PM
American Petroleum Institute did not require this conclusion, and in many ways counseled against it. In American Petroleum Institute, there was a notice of proposed rulemaking, which is an actual new rule that anyone can read, one that "if made final, would significantly amend EPA's 2008 decision". Here there has been no NPR. There has been an advanced notice of intending to do an NPR of unknown content. It's the difference between saying, "here's a new rule, it will take time to finalize," and "we'll formulate a new rule later, but we're not proposing it and we're not sure what it will say." This difference is significant because the "advance" non-rule here only talks about forcing insurance companies to pay, a dubious claim that violates entities' beliefs even if true. But because it is not an actual proposed rule, and it has minor dicta saying they are open to other ideas too, the court said the new proposed rule could end up negating the existing final rule entirely. There is no intention to negate the existing rule, and not even to expand who is "exempt." But the agency is hiding behind the idea that maybe there is, because they haven't actually proposed a new rule. So, ironically, by being more vague and less specific or binding than if they had issued NPR, they have convinced a court that things might really change. This is the opposite lesson of American Petroleum Institute, which only ruled as it did because there was an actual proposed rule that would actually change the situation. So I would respectfully say the application of American Petroleum Institute here was not workmanlike--it was an expansion, and it expanded that precedent against the dangers that the same case warned against.
Posted by: Matt Bowman | Jul 19, 2012 2:40:00 PM
Matt, fair enough. I agree that there are differences between the cases. But there is very strong and broad-ranging language in American Petroleum (some of which I quote above) which (again, it seems to me, as a non-expert in ripeness) is equally applicable to the situation here. And the agency has actually filed a notice of intent to change the rule in the federal register. I understand that there is a difference here from Am. Petroleum, because there the change would have addressed most (but I do not think all) of the plaintiff's concerns, while here the proposed change would not allay the plaintiff's concerns. But with all of the dicta in the DC Circiut decision, this seems (also respectfully) to me to implicate similar concerns of judicial economy. At the very least, it seems like something for an appellate to take on, not a district court.
Thanks for the comment.
Posted by: Marc DeGirolami | Jul 19, 2012 2:53:38 PM
The difference is partly what you identify, that "there the change would have addressed most (but I do not think all) of the plaintiff's concerns, while here the proposed change would not allay the plaintiff's concerns." But more than that, it is that there is no change proposed here, only intent for some kind of change later. So it isn't actually possible to say that a future change would address people's concerns, because it has no parameters. It was crucial in American Petroleum that there was an actual proposed change that could be assessed for what it might do. The dicta, as you quoted, runs in both directions, and no matter who won at the district court it would end up at the appellate level, we can presume. And of course, economy is always served by courts doing less. But thanks raising the discussion.
Posted by: Matt Bowman | Jul 19, 2012 3:04:33 PM
Presuming that the government is acting in good faith might by a normally appropriate thing for a co-equal branch of the government to do, but does anyone really think that the HHS deserves such a presumption here?
HHS pushed final application of this rule into 2013 for only one reason--to reduce the political heat that will come when relgious charities start closing down or being widely audited by the IRS. There is no chance that Kathleen Sebelius, a close friend of Planned Parenthood's Cecile Richards, is going to retreat from the rule in any meaningful way. Indeed, the stirrings within HHS indicate that once this is done they'd like to find a way to provide a similar mandate for abortion (despite the Stupak "compromise" language to the contrary).
Moreover, "good faith" and the Affordable Care Act do not easily coexist. This same administration, after all, repeatedly insisted that the individual mandate was not a tax, and then turned around and immediately argued in court that it was consitutional because it was a tax.
It is, of course, difficult to state such facts in a judicial opinion and few judges would relish the prospect of being forced to say that the emperor has no clothes in so many words. Here, though, it wasn't necessary to do so. The Court could have merely made Matt's distinction about Americam Petroleum Institute and said that while an actual pending new rule and notice of proposed rule making would abate a case, a vaguely announced intention to find some kind of compromise after the election isn't enough.
After all, in a civil case between private parties, a court might temporarily stay the case to allow for settlment talks, but no court will dismiss a case for lack of ripeness because the defendant has published a press release saying that it is seriously considering making the plaintiff a settlement offer that the plaintiff won't be able to refuse in maybe 6-9 months time. And in the end, that is all the government has done here.
In any case, my guess is that not all the district courts will be as gullible as this one.
Posted by: Steve Jenkins | Jul 22, 2012 3:37:42 PM
Two observations -
1) It seems strange that the President's authority over HHS is being ignored or is non-existent. In order to
get his health care law passed, he issued an executive order prohibiting the use of the new law to promote
2) It is sad that HHS has determined the highest priority for a national health care program must be to enable
people to become less inhibited about engaging in activities that spread STD's.
Posted by: Thomas Collins | Jul 23, 2012 1:36:46 PM
The President's authority is neither being ignored or is non-existent. That order was the same type of thing as the claim that the individual mandate was not a tax. Both were entirely tactical and were abandoned as soon as the bill was passed. Now, of course, the claim that the individual mandate is a tax has also been abandoned, and for purposes of this election it is to be treated as not a tax.
One of the only consistent policies this administration will follow is to push Planned Parenthood's agenda every chance it gets. There might be tactical retreats but free and unfettered access to abortion, sterilization and contraception is one of the few policies to which the administration and its senior officials are categorically committed, as is the Washington press corps, which will always give the administration "cover" on the issue.
As fof HHS, it is ruled by Kathleen Gilligan Sebelius and a coterie of like-minded abortion zealots, who have convinced themselves that the only thing that prevents women from returning to the dark ages is legal abortion. They can be counted on to do anything they can in that regard.
Posted by: Steve Jenkins | Jul 30, 2012 10:28:08 AM