ST. LOUIS EFFORT FOR AIDS; Planned Parenthood of the St. Louis Region and Southwest Missouri; Consumers Council of Missouri; Missouri Jobs With Justice; Jeanette Mott Oxford; Dr. Wayne Letizia; Dr. William Fogarty; Chris Worth v. John M. HUFF
No. 14-1520
United States Court of Appeals, Eighth Circuit
April 10, 2015
Rehearing and Rehearing En Banc Denied June 17, 2015
782 F.3d 1016
The district court determined that two aspects of McMahan‘s flight independently justified the increase. The court cited McMahan‘s acceleration in an alley, which generated a cloud of dust that obstructed the pursuing officer‘s vision and created a risk to others. The court also relied on McMahan‘s entering a private home in an effort to evade police. McMahan contends that neither circumstance was sufficient to show that he created a substantial risk of death or serious bodily injury to another person.
We agree with the district court that McMahan‘s uninvited entry into a private home created a substantial risk of serious bodily injury to another person that was sufficient to justify the increase under § 3C1.2. McMahan‘s entry, like a traditional burglary, creates “the possibility of a face-to-face confrontation between the burglar and a third party—whether an occupant, a police officer, or a bystander—who comes to investigate.” James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Although the homeowner was not present when McMahan entered the residence, the presence of an uninvited stranger in a home creates a substantial risk of violent confrontation leading to serious injury when the resident returns home or another party enters to investigate. United States v. Carter, 601 F.3d 252, 255-56 (4th Cir. 2010). We therefore conclude that the district court properly applied § 3C1.2, and there was no procedural error in imposing sentence.
The judgment of the district court is affirmed.
ST. LOUIS EFFORT FOR AIDS; Planned Parenthood of the St. Louis Region and Southwest Missouri; Consumers Council of Missouri; Missouri Jobs With Justice; Jeanette Mott Oxford; Dr. Wayne Letizia; Dr. William Fogarty; Chris Worth Plaintiffs-Appellees v. Director John M. HUFF, in his official capacity as the Director of the Missouri Department of Insurance, Financial Institutions and Professional Registration Defendant-Appellant.
Missouri Association of Insurance Agents, Amicus on Behalf of Appellant
AARP; Sargent Shriver National Center on Poverty Law, Amici on Behalf of Appellees.
Jeremiah J. Morgan, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellant.
Thomas W. Rynard, Blitz, Bardgett & Deutsch, L.C., Jefferson City, MO, argued (James B. Deutsh, Marc H. Ellinger, on the brief), for amicus curiae Mo. Ass‘n of Ins. Agents, in support of appellant.
Jay Angoff, Mehri & Skalet, PLCC, Washington, DC, argued (Ingrid Babri, Mehri & Skalet, PLLC, Washington, DC, Jane Perkins, Abbi Coursolle, National Health Law Program, Carrboro, NC, on the brief), for appellees.
Margaret Stapleton, Sargent Shriver National Center on Poverty Law, Chicago, IL, Jay E. Sushelsky, Andrew Strickland, AARP, Washington, DC, for amici curiae AARP and Sargent Shriver National Center on Poverty Law, in support of appellees.
RILEY, Chief Judge.
St. Louis Effort for AIDS, Planned Parenthood of the St. Louis Region and Southwest Missouri (Planned Parenthood) (collectively, appellees), and a number of other individuals and entities brought this facial challenge to Missouri‘s Health Insurance Marketplace Innovation Act (HIMIA),
I. BACKGROUND
The Patient Protection and Affordable Care Act (ACA) created “navigators“—individuals who assist consumers in purchasing health insurance from state and federal health care exchanges. See
Acting under the ACA, the federal government established a Federally-facilitated Exchange (FFE) in Missouri, and federal navigators and CACs assist in the operation of this exchange. The Missouri legislature enacted the HIMIA to regulate “person[s] that, for compensation, provide[] information or services in connection with eligibility, enrollment, or program specifications of any health benefit exchange operating in [Missouri].”4
The appellees brought the current suit seeking to enjoin preliminarily the HIMIA before its enforcement. The appellees challenged several specific HIMIA provisions, including: the definition of state navigators, see id.
[T]he Court is of the view that any attempt by Missouri to regulate the conduct of those working on behalf of the FFE is preempted.... Missouri has opted not to be in the health insurance exchange business. Having made the choice to leave the operation of the exchange to the federal government, Missouri cannot choose to impose additional requirements or limitations on the exchange. Doing so frustrates Congress’ purpose of having HHS operate FFEs in states where no exchange exists.
Finding the other three prongs of the preliminary injunction test also favored the appellees, the district court issued the injunction “preliminarily enjoin[ing]” Huff “from enforcing HIMIA.” Huff appeals, challenging the district court‘s conclusion that the appellees were likely to succeed on the merits. We affirm the district court‘s order enjoining the HIMIA‘s enforcement against CACs as to the three challenged substantive provisions—Mo. Rev. Stat. §§ 376.2002.3(3), (5) and 376.2008—but reverse to the extent the order applies to federal navigators or any other portion of the HIMIA.
II. DISCUSSION
When granting a preliminary injunction, district courts apply “a flexible consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir.2012) (en banc) (quoting Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 729 n. 3 (8th Cir.2008) (en banc)). “The decision to grant or deny a preliminary injunction rests within the discretion of the district court and will not be disturbed on appeal absent a showing of abuse of discretion.” United States v. Gannaway, 536 F.2d 784, 786 (8th Cir.1976). “When purely legal questions are presented, however, this court owes no special deference to the district court,” Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir.2006), and we review “its legal conclusions de novo,” Goss, 491 F.3d at 362.
A. Preemption
“The general law of preemption is grounded in the Constitution‘s command that federal law ‘shall be the supreme Law of the Land.‘” In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 791 (8th Cir.2010) (quoting
“Because the [ACA] contains an express preemption clause, we focus in the first instance on the plain language of the statute, because it ‘necessarily contains the best evidence of Congress’ pre-emptive intent.‘” Chapman v. Lab One, 390 F.3d 620, 625 (8th Cir.2004) (quoting CSX Transp., 507 U.S. at 664). Section 18041(d) of Title 42—titled “No interference with State regulatory authority“—states, “Nothing in this title shall be construed to preempt any State law that does not prevent the application of the provisions of this title.” This preemption clause is a narrow one, and only those state laws that “hinder or impede” the implementation of the ACA run afoul of the Supremacy Clause. Black‘s Law Dictionary 1226 (8th ed.2004) (defining “prevent“).
The district court ignored § 18041(d)‘s limited preemptive effect. After invalidating the licensing requirements in Mo. Rev.Stat. §§ 376.2002.1, 376.2004, and 376.2006—even though the appellees did not argue these provisions were preempted—and two of the three challenged substantive provisions, the district court concluded “any attempt by Missouri to regulate” CACs and federal navigators was preempted by the ACA. (Emphasis added). Based on this conclusion, the district court held the ACA entirely preempts the HIMIA as it applies to federal navigators, CACs, and counselor designated organizations and then enjoined the enforcement of the HIMIA in total as to those individuals.
In so doing, the district court may have overlooked a tenet of Missouri law:
The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
Examining only those HIMIA provisions the appellees directly challenge, see Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.2004) (explaining a preliminary injunction “must be narrowly tailored ... to remedy only the specific harms shown by the plaintiffs, rather than
1. 2014 Regulations
On July 28, 2014, six months after the district court issued its order, new HHS regulations became effective. These new regulations clarified the duties of CACs and specifically addressed the scope of
““That a statute shall not be given retroactive effect, unless such construction is required by explicit language or by necessary implication, is a rule of general application.‘” Molina Jerez v. Holder, 625 F.3d 1058, 1076 (8th Cir.2010) (quoting United States v. St. Louis, S.F. & T. Ry. Co., 270 U.S. 1, 3, 46 S.Ct. 182, 70 L.Ed. 435 (1926)). But “[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.... [R]elief by injunction operates in futuro,’ and [] the plaintiff ha[s] no ‘vested right’ in the decree entered by the trial court.” Landgraf v. USI Film Prods., 511 U.S. 244, 273-74, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quoting Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 66 L.Ed. 189 (1921)); accord Viacom Inc. v. Ingram Enter., Inc., 141 F.3d 886, 888-90 (8th Cir.1998). Although we examine regulations, not statutes, these same principles apply. See, e.g., United States v. Santee Sioux Tribe of Neb., 324 F.3d 607, 615 n. 4 (8th Cir.2003) (applying “newly-amended regulations” under Landgraf); Grove v. Fed. Bureau of Prisons, 245 F.3d 743, 747 (8th Cir.2001) (citing Landgraf and considering intervening regulations). Because the appellees seek only forward-looking injunctive relief, we consider the 2014 regulations in rendering our decision.
To the extent Huff claims HHS exceeded its authority to regulate when promulgating the 2014 regulations, this argument is misplaced. In the ACA, Congress delegated to HHS broad authority to “establish standards for navigators,”
That HHS had the authority to issue the regulations does not determine whether the regulations can preempt the HIMIA. “[A]n agency regulation with the force of law can pre-empt conflicting state requirements.” Wyeth v. Levine, 555 U.S. 555, 576, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). The 2014 regulation describing the duties of CACs, see
Yet despite Huff‘s contentions to the contrary, we may accord § 155.225(d)(8) some weight. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 883, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). The question of whether § 155.225(d)(8) is to be afforded deference falls squarely under the reasoning of Wyeth. In Wyeth, the Supreme Court refused to defer to a statement in the preamble of a Food and Drug Administration (FDA) regulation proclaiming that its rules preempted state tort law, and the Court noted it had “not deferred to an agency‘s conclusion that state law is pre-empted.” Wyeth, 555 U.S. at 576. The Supreme Court explained:
While agencies have no special authority to pronounce on pre-emption absent delegation by Congress, they do have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The weight we accord the agency‘s explanation of state law‘s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness.
Id. at 576-77 (internal citations and quotation omitted).
Although Wyeth suggests we may give some weight to
With these principles in mind, we turn to the challenged provisions.
2. Missouri Revised Statutes § 376.2002.3(3)—No Advice
In support of his position, Huff posits “advice” means a “recommendation regarding a decision or course of conduct.” (Quoting Webster‘s Third New International Dictionary 32 (1993)). Huff explains under his definition, CACs only violate § 376.2002.3(3) if they explicitly state, “‘I recommend,’ or ‘this is the plan you should get,’ or ‘these are the features you should get.‘” Under Missouri law, “the primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.” E & B Granite, Inc. v. Dir. of Revenue, 331 S.W.3d 314, 318 (Mo.2011) (en banc) (quoting Brinker Mo., Inc. v. Dir. of Revenue, 319 S.W.3d 433, 437-38 (Mo.2010) (en banc)). While “[t]he plain meaning of a term may be derived from a dictionary,” id., the ultimate construction must “be reasonable and logical,” Gash v. Lafayette Cnty., 245 S.W.3d 229, 232 (Mo.2008) (en banc) (quoting Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo.2007) (en banc) (per curiam)).
Huff‘s confined reading of § 376.2002.3(3) is unreasonable when the HIMIA is read as a whole. The subsection directly following the HIMIA‘s no-advice provision—
Given § 376.2002.3(3) cannot be read to prohibit only the giving of a recommendation, we turn to the next dictionary definition of advice: “information or notice given.” Webster‘s Third New International Dictionary 32 (1993). Under this definition, § 376.2002.3(3) arguably prevents CACs from giving information about the various health plans offered through the exchange. The appellees thus are likely to succeed on the merits in arguing the no-advice provision, § 376.2002.3(3), directly controverts the duties outlined in
The 2014 HHS regulations confirm our conclusion. HHS considers “[r]equirements that would prevent [CACs] from providing advice regarding substantive
3. Missouri Revised Statutes § 376.2002.3(5)—No Off-Exchange Information
The HIMIA also forbids CACs from giving “any information or services related to health benefit plans or other products not offered in the exchange.”
Contrary to Huff‘s claims, the relevant laws and regulations do not limit CACs to discussing only those plans offered on the exchange. As the appellees explained in their brief and at oral argument, there are situations where CACs must provide information about an off-exchange health plan to give consumers a full understanding of their options. For example, if a consumer already covered by an off-exchange insurance plan seeks information about switching to an on-exchange plan, the CAC assisting the consumer necessarily must discuss the off-exchange plan to “clarify[] the distinctions” between that plan and exchange plans to “help [the consumer] make informed decisions during the health coverage selection process.”
It is likely the appellees will succeed in showing the HIMIA requirement that state navigators refrain from providing information about health insurance plans not offered through the exchange may prevent CACs from informing consumers about the full range of health care available to them and “clarifying the distinctions among health coverage options,”
4. Missouri Revised Statutes § 376.2008—Consult an Insurance Producer
Under Missouri law, the term “insurance producer” includes both insurance brokers and agents. See
In addition, the 2014 regulations declare as preempted any “[r]equirements that [CACs] refer consumers to other entities not required to provide fair, accurate, and impartial information,” which apparently includes Missouri insurance producers.
As with the other provisions discussed, it is likely the appellees can establish
B. Missouri Revised Statutes § 376.2010.1—Due Process Void for Vagueness
Because it enjoined the entire act on preemption grounds, the district court did not reach the appellees’ due process claim. The appellees challenge the HIMIA‘s remedial provision—
The director may place on probation, suspend, revoke, or refuse to issue, renew, or reinstate a navigator license or may levy a fine not to exceed one thousand dollars for each violation, or any combination of actions, for any one or more of the causes listed in section 375.141, 375.936 or for other good cause.
(Emphasis added). The appellees claim the phrase “or for other good cause” is impermissibly vague, in violation of due process, because it “does not provide fair notice of what is prohibited” and “creates the opportunity for arbitrary and discriminatory enforcement.”
“It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Gallagher v. City of Clayton, 699 F.3d 1013, 1021 (8th Cir.2012) (quoting United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)); accord Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is
The appellees interpret the statute as penalizing individuals who violate the HIMIA‘s other sections. However,
Because
III. CONCLUSION
We affirm the order preliminarily enjoining the enforcement of Mo.Rev.Stat. §§ 376.2002.3(3), (5) and 376.2008 against CACs, and we vacate the remainder of the preliminary injunction, remanding the case back to the district court.
No. 14-2146.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 16, 2015.
Filed: April 10, 2015.
Rehearing and Rehearing En Banc Denied June 17, 2015.