920 F. Supp. 2d 1018 | E.D. Mo. | 2013
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss. [ECF No. 16] The motion is fully briefed and ready for disposition. With leave of Court, the American Center for Law & Justice and Seventy-Nine Members of the United States Congress have filed an amici curiae brief in support of Plaintiffs regarding their opposition to Defendants’ motion to dismiss. (Doc. No. 25) Plaintiffs (Doc. No. 34) and Defendants (Doc. Nos. 30, 31, 32, 36, 38, 39, 40) have filed Notices of Supplemental Authority related to the pending motion to dismiss. For the following reasons, the motion will be granted.
Background
This action is one of many cases filed throughout the United States raising constitutional challenges to the Patient Protection and Affordable Care Act (“ACA”).
In summary, the ACA and implementing regulations require all group health plans to provide women with “preventive care and screenings” at no charge to the patient (“Women’s Health Amendment”). See 42 U.S.C. § 300gg-13(a). The scope of “preventive care” is defined to include all “contraceptive methods,” “sterilization procedures, and patient education and counseling for women with reproductive capacity,” that are approved by the FDA. See Wheaton College v. Sebelius, 887 F.Supp.2d 102, 105-06 (D.D.C.2012) (citing Women’s Preventive Services: Required Health Plan Coverage Guidelines, http:// www.hrsa.gov/womensguidelines (last visited August 24, 2012)). The preventive care coverage requirement does not apply to grandfathered
In March 2012, Defendants published an Advance Notice of Proposed Rulemaking (“ANPRM”) announcing their intention to propose amendments that “would establish alternative ways to fulfill the requirements of the ACA while still protecting religious organizations from having to contract, arrange, or pay for contraceptive services.” 77 Fed. Reg. 16,501, 16,503 (March 21, 2012). The ANPRM further states Defendants’ intention to finalize these amendments so that they are effective by the end of the temporary enforcement safe harbor. Id. at 16,503.
Plaintiffs, the Archdiocese of St. Louis (“Archdiocese”) and Catholic Charities of St. Louis (“Catholic Charities”), describe themselves as “Catholic religious entities that provide a wide range of spiritual, educational, and social services to residents in the greater St. Louis community.” (Compl., Doc. No. 1, ¶ 2)
Defendants are the U.S. Department of Health and Human Services (“HHS”), Kathleen Sebelius in her official capacity as Secretary of HHS, the U.S. Department of Labor, Hilda Solis in her capacity as Secretary of the U.S. Department of Labor, the U.S. Department of Treasury, and Timothy Geithner in his official capacity as Secretary of the Treasury. (Compl., ¶¶ 12-17) Collectively, Defendants are the departments and officials responsible for adopting, administering, and enforcing the regulations Plaintiffs are challenging.
Plaintiffs contend the regulations promulgated as part of the ACA would require many Catholic and other religious organizations to provide health plans to their employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception in violation of their sincerely held religious beliefs. (Id., ¶¶ 4-5)
The Archdiocese operates a self-insured health plan. That is, the Archdiocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Archdiocese functions as the insurance company underwriting its employees’ medical costs. (Id., ¶ 25) Catholic Charities offers coverage through the Archdiocese’s plan. (Id.) Consistent with Church teachings, the Archdiocese’s plan does not cover abortion-inducing drugs, sterilization, or contraceptives. In limited circumstances, the plan administrator can override the exclusion of certain drugs commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy. (Id., ¶ 26)
Plaintiffs assert the Archdiocese’s self-insured health plan does not meet the ACA’s definition of a “grandfathered” plan because, since March 23, 2010, the Archdiocese has terminated one of its two plan options, replacing it with an option offering a reduced level of benefits at a reduced premium. (Id., ¶ 27) Further, the Archdiocese has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plan is a grandfathered health plan within the
Plaintiffs acknowledge that certain religious employers are exempted from the preventive services requirement; however, because they employ and serve persons without regard to religious affiliation, Plaintiffs assert it is unclear whether they will in fact qualify as a “religious employer” under the exemption. (Complaint, ¶¶ 6-7, 38-39, 51)
Plaintiffs seek a declaratory judgment that the challenged regulations violate their rights under the First Amendment and the Religious Freedom Restoration Act (“RFRA”)
Defendants move to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P., specifically on the issues of standing and ripeness.
Legal Standard
Under Federal Rule of Civil Procedure 12(b)(1), a party is permitted to challenge a federal court’s jurisdiction over the subject matter of the complaint. When the Court’s subject matter jurisdiction is challenged, at issue is the Court’s “very power to hear the case.” Rundel v. Bob Evans Restaurant Inc., 2010 WL 597366, at *1 (E.D.Mo. Feb. 17, 2010) (quoting Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990)). The party invoking the jurisdiction of the federal court has the burden of establishing that the court has the requisite subject matter jurisdiction to grant the requested relief. Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).
For an action to be dismissed under Rule 12(b)(1), the complaint must either be successfully challenged on the factual truthfulness of its assertions, or successfully challenged on its face. See Osborn, 918 F.2d at 729. The identification of whether a challenge is facial or factual is a necessary step, and this identification establishes how a court should proceed when resolving a motion to dismiss under Rule 12(b)(1). When subject matter jurisdiction is challenged based on the factual truthfulness of the assertions, a court is permitted to consider “matters outside the pleadings,” such as testimony and affidavits. Id. at 729 n. 2 (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)); see also Smith v. U.S. Postal Serv. Inspector Gen., 2007 WL 537712, at *2 n. 3 (E.DArk. Feb. 16, 2007). When a court’s subject matter jurisdiction is challenged in a facial attack, however, the Court “restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Kinder v. Geithner, 2011 WL 1576721, at *1 (E.D.Mo. April 26, 2011) (quoting Osborn, 918 F.2d at 729 n. 6).
Discussion
Subject Matter Jurisdiction
“Federal jurisdiction is limited to the power authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Kinder, 2011 WL 1576721, at *3 (citing Zanders v. Swanson, 573 F.3d 591, 593 (8th Cir.2009)). “The limitations imposed by Article III are usually referred to as the ‘case
The Court notes that a number of courts have already addressed the jurisdictional arguments Defendants raise here. See Persico v. Sebelius, No. 1:12-cv-00123-SJM, 919 F.Supp.2d 622, 2013 WL 228200 (W.D.Pa. Jan. 22, 2013); Colorado Christian University v. Sebelius, No. 11-cv-3350-CMA-BNB, 2013 WL 93188; Catholic Diocese of Peoria v. Sebelius, No. 1:12-cv-01276-JES-BGC, 2013 WL 74240 (C.D.Ill. Jan. 4, 2013); University of Notre Dame v. Sebelius, No. 3:12-cv-0523-RLM, 2012 WL 6756332 (N.D.Ind. Dec. 31, 2012); Catholic Diocese of Biloxi v. Sebelius, 2012 WL 6831407; Wheaton College v. Sebelius, 703 F.3d 551 (D.C.Cir.2012) (Order holding consolidated cases Wheaton Coll. v. Sebelius, 887 F.Supp.2d 102 (D.D.C.2012) and Belmont Abbey College v. Sebelius, 878 F.Supp.2d 25 (D.D.C.2012) in abeyance because “the cases are not fit for review at this time”); The Roman Catholic Archdiocese of New York v. Sebelius, 1:12-cv-2542-BMC, 907 F.Supp.2d 310, 2012 WL 6042864 (E.D.N.Y. Dec. 5, 2012); Zubik v. Sebelius, No. 2:12-cv-00676, 911 F.Supp.2d 314, 2012 WL 5932977 (W.D.Pa. Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D.Tenn. Nov. 21, 2012); Legatus v. Sebelius, No. 12-12061, 901 F.Supp.2d 980, 2012 WL 5359630 (E.D.Mich. Oct. 31, 2012); Nebraska v. U.S. Dep’t of Health & Human Servs., 877 F.Supp.2d 777 (D.Neb.2012). With the exception of the court in the Roman Catholic Archdiocese of New York case, 907 F.Supp.2d at 335, 2012 WL 6042864, at *23, the district courts decided they lacked jurisdiction over the nonprofit religious organizations before them based on standing and/or ripeness grounds.
Because ripeness “provides a slightly more narrow ground for dismissal than standing,” the Court addresses Defendants’ ripeness challenge first. Colorado Christian University, 2013 WL 93188, at *3 (quoting Zubik, 911 F.Supp.2d at 324 n. 12, 2012 WL 5932977, at *7 n. 12).
Ripeness
The ripeness doctrine is taken from both Article III jurisdictional limits and policy considerations of effective court administration. U.S. v. Rideout, 478 Fed.Appx. 339 (8th Cir.2012) (unpublished). The doctrine’s basic, rationale is to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Kinder, 2011 WL 1576721, at *8. See also
Defendants argue Plaintiffs’ challenge is not ripe because the preventive services coverage regulations are in the process of being amended, and therefore not final for purposes of ripeness. (Doc. No. 17, pp. 15, 17) This Court agrees. Because the regulations are in the process of being amended, in their current form they represent a tentative as opposed to final agency position. See, Persico, 919 F.Supp.2d at 640, 2013 WL 228200, at *14 (“We, like the majority of other courts cited above, view the Defendants’ promise to engage in further rulemaking as a good faith binding commitment which effectively renders the Mandate a ‘non-final’ agency action, at least insofar as it relates to religious organizations like the Plaintiffs.”); Colorado Christian University, 2013 WL 93188, at *5; Catholic Diocese of Biloxi, 2012 WL 6831407, at *7; Catholic Diocese of Nashville, 2012 WL 5879796, at *5 (“Because the preventive services regulations are in the process of being amended, they are by definition a tentative agency position in which the agency expressly reserves the possibility that its opinion might change and, therefore, are not fit for judicial decision at this time.”); University of Notre Dame, 2012 WL 6756332, at *3 (“Notre Dame is correct that regulation itself claims to be final, 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 refashioning.”); Catholic Diocese of Peoria, 2013 WL 74240, at *5 (“[A]s the Government is in the process of amending the preventive service regulations, those regulations are not fit for judicial review at this time. To do so would undermine the interests of judicial economy requiring the Court to review the Rule before it is amended and before it is to be enforced”).
Moreover, the forthcoming amendments are intended to address the exact issue Plaintiffs raise here by establishing alternative means of providing contraceptive coverage without cost-sharing while accommodating religious organizations’ religious objections to covering contraceptive services. (Id.) Defendants also point out that Plaintiffs will have opportunities to participate in the rulemaking process and provide comments and/or ideas about the proposed accommodations. (Id.) Thus, there is a significant chance that the amendments will alleviate the need for judicial review. Id. (citing KCCP Trust, 432 F.3d at 899 (“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”)) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). In the meantime, Plaintiffs are protected from enforcement by the safe harbor.
Because the preventive services coverage regulations are currently undergoing a process of amendment to accommodate Plaintiffs’ religious objections, and because Plaintiffs are protected from enforcement by the safe harbor, the Court concludes that Plaintiffs’ claims are not ripe for judicial review.
Standing
To have standing, a plaintiff must demonstrate that it has “suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural or hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotations omitted). Allegations of possible future injury do not satisfy the requirements of Article III; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (quotations omitted). Moreover, “[i]t is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record. And it is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. Thus [Plaintiffs] in this case must allege facts essential to show jurisdiction. If they fail to make the necessary allegations, they have no standing.” Kinder, 2011 WL 1576721, at *3-4 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)).
Plaintiffs respond that the coverage mandate and its narrow definition of religious employer presents it with a “Hob-son’s choice” of either violating their religious beliefs or risking exposure to various penalties. (Doc. No. 26, p. 8) They contend these religious and economic issues are sufficiently concrete to satisfy Article III.(/d) Plaintiffs further respond that the “present impact” of the mandate also establishes an injury in fact, in that they must now plan how they will respond to the mandate in terms of analyzing, vetting and implementing changes to their health plans and budgeting for any fines for disregarding the mandate in their 2013-14 budgets.
Having rejected a similar ripeness argument, the Court will reject Plaintiffs’ standing argument as well. See Catholic Diocese of Nashville, 2012 WL 5879796, at *5. Plaintiffs’ allegations of injury are based on speculation that the regulations will apply to Plaintiffs in their current form come August 2013. (Doc. No. 28, p. 3) Yet Defendants have stated they will issue a new rule specifically to accommodate Plaintiffs’ religious objections. Because Defendants are presumed to act in good faith, see, Colorado Christian University, 2013 WL 93188, at *5, the Court construes Defendants’ representations as a binding commitment. Diocese of Peoria, 2013 WL 74240, at *5. “Because an amendment to the final rules that may vitiate the threatened injury is not only promised but underway, the injuries alleged by Plaintiff are not ‘certainly impending.’ ” Belmont Abbey, 878 F.Supp.2d at 37. See also Catholic Diocese of Nashville, 2012 WL 5879796, at *5; Wheaton College, 887 F.Supp.2d at 112-13.
Furthermore, while Defendants are in the process of amending the preventive service regulations, the regulations are not being enforced against Plaintiffs. Other courts deciding this identical issue have found that organizations protected under the safe harbor do not have standing because their injury is speculative. See Zubik, 911 F.Supp.2d at 328, 2012 WL 5932977, at *11 (court determined plaintiffs lacked standing because the safe harbor “render[s] the threatened harm from the preventive care regulations too remote to constitute ‘imminent’ injury,” and that “any injury from enforcement of the [challenged] regulations after the safe harbor expires is purely speculative” in light of the forthcoming accommodation.); Belmont Abbey, 878 F.Supp.2d at 36 (“The alleged injury is ... too speculative to confer standing given the government’s clear intention to amend the regulations before the safe harbor lapses in order to accommodate organizations with religious objections to contraception.”); Notre Dame, 2012 WL 6756332, at *3 (As a result of the safe harbor, Notre Dame faces no penalty or restriction based on the existing regulatory requirement.); and Legatus, 901 F.Supp.2d at 988, 2012 WL 5359630, at *5 (court held a non-profit organization lacked standing to assert its claims because it qualified for the safe harbor). Given the existing safe harbor, there is no basis for the Court to consider
Conclusion
This Court joins other district courts and the Court of Appeals for the District of Columbia in concluding that it lacks subject matter jurisdiction over the case currently pending. The challenged regulation is not sufficiently final for review to be ripe because Defendants have announced the regulation will be modified. Plaintiffs and other similarly situated organizations will have opportunities to participate in the rulemaking process and provide input about the proposed modifications. In addition, Defendants have provided Plaintiffs with a safe harbor that protects them from the regulation as it exists today. Plaintiffs also lack standing to challenge the present regulatory requirement because they are not subject to that requirement, and, based on the new proposed rulemaking that would amend the regulation, will never be subject to the present regulation. University of Notre Dame, 2012 WL 6756332, at *4. Defendants’ motion will, therefore, be granted.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [16] is GRANTED. A separate Order of Dismissal accompanies this Memorandum and Order.
. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (Mar. 30, 2010).
. The preventive services coverage regulations do not apply to plans that existed on March 23, 2010 and that have not undergone any of a defined set of changes since that date. 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
. "Religious employers” are exempt from the requirement to provide coverage for contraceptive services provided they meet the following criteria:
• The inculcation of religious values is the purpose of'the organization;
• The organization primarily employs persons who share the religious tenets of the organization;
• The organization primarily serves persons who share the religious tenets of the organization; and
• 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.
45 C.F.R. § 147.130(a)(l)(iv)(B).
. 42 U.S.C. § 2000bb et seq.
. 5 U.S.C. § 702.
. The district court in Archdiocese of New York found the plaintiffs’ claims fit for judicial review based on its conclusion that the coverage mandate, having been formally promulgated in the Federal Register, is not merely a "non-final proposed policy," but rather a "final rule." 907 F.Supp.2d at 328, 2012 WL 6042864, at *16. The position taken by the New York court appears to be the minority view, however, and numerous other federal courts have interpreted the prospect of the mandate's enforcement as a "mere contingency” in light of the Defendants’ stated plan for further rulemaking as it relates to non-exempt religious organizations. Persico, 919 F.Supp.2d at 638-39, 2013 WL 228200, at *13 (and cases cited therein).