Case: 14-20112
Document: 00513964561
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Date Filed: 04/24/2017
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________ EAST TEXAS BAPTIST UNIVERSITY, et al., Plaintiffs-Appellees, WESTMINSTER THEOLOGICAL SEMINARY, Intervenor Plaintiff-Appellee, v.
No. 14-20112
THOMAS E. PRICE, et al., Defendants-Appellants. ______________________________________ UNIVERSITY OF DALLAS, Plaintiff-Appellee, v.
No. 14-10241
THOMAS E. PRICE, et al., Defendants-Appellants. __________________________________ CATHOLIC DIOCESE OF BEAUMONT, et al., Plaintiffs-Appellees, v.
No. 14-40212
THOMAS E. PRICE, et al., Defendants-Appellants. __________________________________ CATHOLIC CHARITIES, DIOCESE OF FORT WORTH, INC., Plaintiff-Appellee, v. THOMAS E. PRICE, et al., Defendants-Appellants. __________________________________
No. 14-10661
Case: 14-20112
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STATUS REPORT The Departments respectfully submit this status report. For the reasons discussed below, the abeyance in these cases should be continued with the next status reports due in 60 days, on Friday, June 23, 2017. In their status report filed on Thursday, April 20, the plaintiffs represented by the Becket Fund argued that the abeyance should be ended. The Becket Fund made a similar request on behalf of other plaintiffs in the Tenth Circuit, which the Tenth Circuit denied. (Copies of the motion and order are attached.) The request to lift the abeyance in these cases should be denied as well. When the Supreme Court remanded these and other cases, it indicated that “the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016) (internal quotation marks and citation omitted). The Supreme Court expressly “anticipate[d] that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.” Id. Plaintiffs emphasize that eleven months have elapsed since that remand order but, as they acknowledge, the new Administration has been in place for only a few months. The regulations at issue here are jointly administered by three Departments—the Department of Health & Human Services, the Department of 2
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Labor, and the Department of the Treasury—and are the subject of numerous other lawsuits being handled by the Department of Justice. The nominee to be Secretary of Labor has not yet been confirmed, and numerous subcabinet positions at the Departments have not yet been filled. The issues presented by the Supreme Court’s remand order are complex; for example, the original accommodation took more than a year to develop with input from interested parties. See 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (announcing the Departments’ intent to develop an accommodation for non-profit organizations with religious objections to providing contraceptive coverage); 77 Fed. Reg. 16,501 (Mar. 21, 2012) (advance notice of proposed rulemaking); 78 Fed. Reg. 8456 (Feb. 6, 2013) (notice of proposed regulations); 78 Fed. Reg. 39,870 (July 2, 2013) (final rule). Nor does the continued abeyance of these case prejudice plaintiffs. They have the benefit of the interim relief that the Supreme Court provided in its remand order, which in relevant part stated that “the Government may not impose taxes or penalties on [plaintiffs] for failure to provide the relevant notice.” Zubik, 136 S. Ct. at 1561.
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Respectfully submitted, MARK B. STERN /s/Alisa B. Klein ALISA B. KLEIN PATRICK G. NEMEROFF JOSHUA M. SALZMAN 202-514-1597 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., NW, Rm. 7235 Washington, DC 20530 APRIL 2017
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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. I further certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Alisa B. Klein ALISA B. KLEIN
Case: 14-20112 Appellate Case: 13-1540
Document: 00513964561
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Date Filed: 04/24/2017
Document: 01019780227
Date Filed: 03/15/2017
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No. 13-1540
In the United States Court of Appeals for the Tenth Circuit LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation, LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated, CHRISTIAN BROTHERS SERVICES, an Illinois non-profit corporation, and CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST, Appellants, v. THOMAS PRICE, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, EDWARD HUGLER, Acting Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, STEVEN MNUCHIN, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, Appellees. On Appeal from the United States District Court for the District of Colorado, Hon. William J. Martinez Civ. No. 1:13-cv-02611-WJM-BNB PLAINTIFFS-APPELLANTS’ STATUS REPORT
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Plaintiffs-Appellants (collectively the “Little Sisters”) provide the following status report: Recent changes in the government’s position suggest that this matter should be resolved soon. Accordingly, the Little Sisters respectfully suggest that the parties report back to the Court on their progress in 15 days. Among other things, it is now clear that Defendants agree with the Little Sisters—and with Judges Gorsuch, Hartz, Holmes, Kelly, and Tymkovich—that the Mandate imposes a substantial burden on the Little Sisters’ religious exercise. See Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (Hartz, J., dissenting from denial of rehearing en banc). First, on January 20, 2017, President Trump issued Executive Order No. 13765, which orders Defendant HHS to grant waivers and exemptions from requirements under the ACA “to the maximum extent permitted by law.” In particular, the Executive Order states: Sec. 2. To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the
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implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications. E.O. 13765 of January 20, 2017, 82 Fed. Reg. 8351. This exemptionfriendly approach runs directly counter to the anti-accommodation position taken by the government when it last appeared before this Court. Second, on February 10, 2017, Dr. Thomas Price was confirmed as Secretary
of
Health
and
Human
Services.
See
https://www.congress.gov/nomination/115th-congress/33. Dr. Price has already taken the position at the United States Supreme Court that the Mandate violates RFRA. Dr. Price’s amicus brief in support of the Little Sisters explained: “The Government’s defense of its so-called “accommodation” for religious non-profits—an ‘accommodation’ that requires petitioners to take an action they believe to be morally wrong—cannot satisfy the strict demands of RFRA.” “The petitioners sincerely believe they would be morally complicit if they take the actions HHS requires. As long as that belief is sincere—and the Government admits that it is—the Government may not second guess it.”
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“When an organization faces substantial penalties for refusing to engage in conduct it sincerely believes is wrong, its religious exercise is necessarily substantially burdened.” Brief of Amici Curiae 207 Members of Congress 9-10, 29, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (Nos. 14-1418, 14-1453, 14-505, 15-35, 15105, 15-119, 15-191). Third, it is clear that Defendant Price’s view of the Mandate is shared by the President. President Trump has referred to the Rule as an “onerous mandate” and its impact on the Little Sisters as “a hostility to religious liberty you will never see in a Trump Administration.” Letter from Donald J. Trump to Catholic Leadership Conference, October 5, 2016,
available
at
http://www.catholicnewsagency.com/pdf/DJT_catholic_leadership_confer ence_letter.pdf. Furthermore, the President declared “I will make absolutely certain religious orders like the Little Sisters of the Poor are not bullied by the federal government because of their religious beliefs.” Id. For these reasons, the Little Sisters expect that this dispute should be resolved soon and respectfully request that the parties file a joint status report as to their progress in 15 days.
Case: 14-20112 Appellate Case: 13-1540
Document: 00513964561 Document: 01019780227
Respectfully submitted, /s/ Mark Rienzi Mark L. Rienzi Daniel Blomberg The Becket Fund for Religious Liberty 1200 New Hampshire Ave N.W. Suite 700 Washington, DC 20036 (202) 349-7208
[email protected] Carl C. Scherz Seth Roberts Locke Lord LLP 2200 Ross Avenue Suite 2200 Dallas, Texas 75201 (214) 740-8583
[email protected] Kevin C. Walsh Univ. of Richmond Law School 28 Westhampton Way Richmond, VA (804) 287-6018
[email protected] Attorneys for Plaintiffs-Appellants MARCH 2017
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Case: 14-20112 Appellate Case: 13-1540
Document: 00513964561 Document: 01019780227
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Certification of Compliance I certify that (1) all required privacy redactions have been made; (2) any required paper copies are exact versions of the document filed electronically; and (3) that the electronic submission was scanned for viruses and found to be virus-free.
/s/ Mark L. Rienzi Mark L. Rienzi
Case: 14-20112 Appellate Case: 13-1540
Document: 00513964561 Document: 01019780227
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Certificate of Service I hereby certify that on March 15, 2017, I electronically filed the foregoing with the Clerk of Court by using the appellate CM/ECF system. I further certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Mark L. Rienzi Mark L. Rienzi
Case: 14-20112
Document: 00513964561
Appellate Case: 13-1540
Document: 01019780683
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Date Filed: 04/24/2017
Date Filed: 03/16/2017
UNITED STATES COURT OF APPEALS
Page: 1 FILED United States Court of Appeals Tenth Circuit
FOR THE TENTH CIRCUIT _________________________________ LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation; LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated; CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation; CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST, Plaintiffs - Appellants, v.
No. 13-1540
THOMAS PRICE, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; EDWARD HUGLER, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; STEVEN MNUCHIN, Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY, Defendants - Appellees. -----------------------------ASSOCIATION OF GOSPEL RESCUE MISSIONS; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; PRISON FELLOWSHIP MINISTRIES;
March 16, 2017 Elisabeth A. Shumaker Clerk of Court
Case: 14-20112 Appellate Case: 13-1540
Document: 00513964561 Document: 01019780683
NATIONAL ASSOCIATION OF EVANGELICALS; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; THE LUTHERAN CHURCH- MISSOURI SYNOD; AMERICAN BIBLE SOCIETY; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE AND CHRISTIAN LEGAL SOCIETY; LIBERTY, LIFE, AND LAW FOUNDATION; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS; LIBERTY UNIVERSITY; LIBERTY COUNSEL; 67 CATHOLIC THEOLOGIANS AND ETHICISTS; CONCERNED WOMEN FOR AMERICA; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; NATIONAL HEALTH LAW PROGRAM; AMERICAN PUBLIC HEALTH ASSOCIATION; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL WOMEN'S HEALTH NETWORK; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM; ASIAN AMERICANS ADVANCING JUSTICE; AAJC; ASIAN AMERICANS ADVANCING JUSTICE-LOS ANGELES; ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM; BLACK WOMEN'S HEALTH IMPERATIVE; FORWARD TOGETHER; IPAS; SEXUALITY INFORMATION AND EDUCATIONAL COUNCIL OF THE U.S. (SIECUS); HIV LAW PROJECT; CHRISTIE'S PLACE; NATIONAL
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Case: 14-20112 Appellate Case: 13-1540
Document: 00513964561 Document: 01019780683
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WOMEN AND AIDS COLLECTIVE; CALIFORNIA WOMEN'S LAW CENTER, NATIONAL WOMEN'S LAW CENTER; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME); BLACK WOMEN'S HEALTH IMPERATIVE; FEMINIST MAJORITY FOUNDATION; IBIS REPRODUCTIVE HEALTH; MERGER WATCH; NARAL PRO-CHOICE AMERICA; NATIONAL ORGANIZATION FOR WOMEN (NOW) FOUNDATION; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNED PARENTHOOD OF THE HEARTLAND; PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU), . Amici Curiae. _________________________________ ORDER * _________________________________ This matter is before the court on the appellees’ Status Report and the PlaintiffsAppellants’ Status Report. The appellees suggest that future status reports should be scheduled out 60 days, while the appellants ask only for 15 more days. *
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the court has substituted Thomas Price, Edward Hugler, and Steven Mnuchin as the current public office holders in place of the public officials named in previous captions.
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Upon consideration, and at the direction of the court, the parties shall file simultaneous status reports on May 15, 2017. If circumstances warrant advice to the court earlier than May 15, the parties may file status reports sooner describing what events have occurred and suggesting how those events should impact future proceedings in this appeal. Entered for the Court ELISABETH A. SHUMAKER, Clerk by: Lara Smith Counsel to the Clerk
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