State of California v. the Little Sisters of the Poor ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA; STATE OF No. 19-15072
DELAWARE; COMMONWEALTH OF
VIRGINIA; STATE OF MARYLAND; D.C. No.
STATE OF NEW YORK; STATE OF 4:17-cv-05783-
ILLINOIS; STATE OF WASHINGTON; HSG
STATE OF MINNESOTA; STATE OF
CONNECTICUT; DISTRICT OF
COLUMBIA; STATE OF NORTH
CAROLINA; STATE OF VERMONT;
STATE OF RHODE ISLAND; STATE OF
HAWAII,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; U.S.
DEPARTMENT OF LABOR; R.
ALEXANDER ACOSTA, in his official
capacity as Secretary of the U.S.
Department of Labor; ALEX M.
AZAR II, Secretary of the United
States Department of Health and
Human Services; U.S. DEPARTMENT
OF THE TREASURY; STEVEN TERNER
MNUCHIN, in his official capacity as
Secretary of the U.S. Department of
the Treasury,
Defendants,
2 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
and
THE LITTLE SISTERS OF THE POOR
JEANNE JUGAN RESIDENCE,
Intervenor-Defendant-Appellant.
STATE OF CALIFORNIA; STATE OF No. 19-15118
DELAWARE; COMMONWEALTH OF
VIRGINIA; STATE OF MARYLAND; D.C. No.
STATE OF NEW YORK; STATE OF 4:17-cv-05783-
ILLINOIS; STATE OF WASHINGTON; HSG
STATE OF MINNESOTA; STATE OF
CONNECTICUT; DISTRICT OF
COLUMBIA; STATE OF NORTH
CAROLINA; STATE OF VERMONT;
STATE OF RHODE ISLAND; STATE OF
HAWAII,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; U.S.
DEPARTMENT OF LABOR; R.
ALEXANDER ACOSTA, in his official
capacity as Secretary of the U.S.
Department of Labor; ALEX M.
AZAR II, Secretary of the United
States Department of Health and
Human Services; U.S. DEPARTMENT
OF THE TREASURY; STEVEN TERNER
MNUCHIN, in his official capacity as
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 3
Secretary of the U.S. Department of
the Treasury,
Defendants-Appellants,
and
THE LITTLE SISTERS OF THE POOR
JEANNE JUGAN RESIDENCE,
Intervenor-Defendant.
STATE OF CALIFORNIA; STATE OF No. 19-15150
DELAWARE; COMMONWEALTH OF
VIRGINIA; STATE OF MARYLAND; D.C. No.
STATE OF NEW YORK; STATE OF 4:17-cv-05783-
ILLINOIS; STATE OF WASHINGTON; HSG
STATE OF MINNESOTA; STATE OF
CONNECTICUT; DISTRICT OF
COLUMBIA; STATE OF NORTH OPINION
CAROLINA; STATE OF VERMONT;
STATE OF RHODE ISLAND; STATE OF
HAWAII,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES; U.S.
DEPARTMENT OF LABOR; R.
ALEXANDER ACOSTA, in his official
capacity as Secretary of the U.S.
Department of Labor; ALEX M.
AZAR II, Secretary of the United
States Department of Health and
4 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
Human Services; U.S. DEPARTMENT
OF THE TREASURY; STEVEN TERNER
MNUCHIN, in his official capacity as
Secretary of the U.S. Department of
the Treasury,
Defendants,
and
MARCH FOR LIFE EDUCATION AND
DEFENSE FUND,
Intervenor-Defendant-
Appellant.
Appeals from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted June 6, 2019
San Francisco, California
Filed October 22, 2019
Before: J. Clifford Wallace, Andrew J. Kleinfeld,
and Susan P. Graber, Circuit Judges.
Opinion by Judge Wallace;
Dissent by Judge Kleinfeld
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 5
SUMMARY *
Affordable Care Act
The panel affirmed the district court’s preliminary
injunction barring enforcement in several states of final
federal agency rules that exempt employers with religious
and moral objections from the Affordable Care Act’s
requirement that group health plans cover contraceptive care
without cost sharing.
The panel first held that the plaintiff states had standing
to sue. The panel held that the panel’s prior decision in
California v. Azar, 911 F.3d 558, 566–68 (9th Cir. 2018),
and its underlying reasoning foreclosed any arguments
otherwise. The panel determined that plaintiffs failed to
identify any new factual or legal developments since the
panel’s prior decision that required the panel to reconsider
standing here.
The panel noted that the day after the district court issued
its injunction of limited scope, covering the territory of the
thirteen plaintiff states plus the District of Columbia, a
district court in Pennsylvania issued a similar nationwide
injunction. See Pennsylvania v. Trump, 351 F. Supp. 3d
791, 835 (E.D. Pa.), aff’d 930 F.3d 543 (3d Cir.), petition for
cert. filed, __ U.S.L.W. __ (U.S. Oct. 1, 2019) (No. 19-431).
The panel held that despite the nationwide injunction from
Pennsylvania, under existing precedent, this appeal was not
moot.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
6 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
The panel held that the district court did not abuse its
discretion in concluding that the plaintiff states were likely
to succeed on the merits of their claim brought under the
Administrative Procedure Act. The panel held that given the
text, purpose, and history of 42 U.S.C. § 300gg–13(a)(4),
also known as the Women’s Health Amendment, the district
court did not err in concluding that the agencies likely lacked
statutory authority under the Affordable Care Act to issue
the final rules. The panel determined that, at the preliminary
injunction stage, the evidence was sufficient to hold that
providing free contraceptive services was a core purpose of
the Women’s Health Amendment and that nothing in the
statute permitted the agencies to determine exemptions from
the requirement.
The panel rejected the argument that the regulatory
regime that existed before the rules’ issuance—i.e., the
accommodation process—violated the Religious Freedom
Restoration Act and that the Act required or at least
authorized the federal agencies to eliminate the violation by
issuing the religious exemption. The panel held that even
assuming that agencies were authorized to provide a
mechanism for resolving perceived Religious Freedom
Restoration Act violations, the Act likely did not authorize
the religious exemption at issue in this case. The panel held
that the religious exemption contradicts congressional intent
that all women have access to appropriate preventative care
and the exemption operates in a manner fully at odds with
the careful, individualized, and searching review mandated
by the Religious Freedom Restoration Act.
The panel held that regardless of the question of whether
the agencies had authority pursuant to the Religious
Freedom Restoration Act to issue the exemption, the
accommodation process likely did not substantially burden
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 7
the exercise of religion and hence did not violate the Act.
The panel noted that an organization with a sincere religious
objection to arranging contraceptive coverage need only
send a self-certification form to the insurance issuer or a
third-party administrator or send a written notice to the
Department of Health and Human Services. Once the
organization has taken the simple step of objecting, all
actions taken to pay for or provide the organization’s
employees with contraceptive care is carried out by a third
party, i.e., insurance issuer or third-party administrator. The
panel held that because appellants likely failed to
demonstrate a substantial burden on religious exercise, there
was no need to address whether the government had shown
a compelling interest or whether it has adopted the least
restrictive means of advancing that interest.
The panel held that the district court did not abuse its
discretion by concluding that the plaintiff states were likely
to suffer irreparable harm absent an injunction. Referring to
the panel’s discussion in its prior opinion, the panel
reiterated that plaintiff states will likely suffer economic
harm from the final rules, and such harm would be
irreparable because the states will not be able to recover
monetary damages flowing from the final rules. This harm
was not speculative; it was sufficiently concrete and
supported by the record. Finally, the panel held that there
was no basis to conclude that the district court erred by
finding that the balance of equities tipped sharply in favor of
the plaintiff states and that the public interest tipped in favor
of granting the preliminary injunction.
Dissenting, Judge Kleinfeld stated that because of the
nationwide injunction from Pennsylvania, this case was
moot and that the panel lacked jurisdiction to address the
merits.
8 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
COUNSEL
Brinton Lucas (argued), Sharon Swingle, Lowell V. Sturgill
Jr., and Karen Schoen, Appellate Staff; David L. Anderson,
United States Attorney; Hashim M. Mooppan, Deputy
Assistant Attorney General; Joseph H. Hunt, Assistant
Attorney General; Civil Division, United States Department
of Justice, Washington, D.C.; for Defendants-Appellants.
Mark Rienzi (argued), Eric C. Rassbach, Lori H. Windham,
Diana M. Vern, Chase T. Harrington, and Chris Pagliarella,
The Becket Fund for Religious Liberty, Washington, D.C.,
for Intervenor-Defendant-Appellant The Little Sisters of the
Poor Jeanne Jugan Residence.
Kenneth J. Connelly (argued), David A. Cortman, and Kevin
H. Theriot, Alliance Defending Freedom, Scottsdale,
Arizona; Gregory S. Baylor and Christen M. Price, Alliance
Defending Freedom, Washington, D.C.; Brian R. Chavez-
Ochoa, Chavez-Ochoa Law Offices Ins., Valley Springs,
California; for Intervenor-Defendant-Appellant March for
Life Education and Defense Fund.
Karli A. Eisenberg (argued) and Nimrod Pitsker Elias,
Deputy Attorneys General; Kathleen Boergers, Supervising
Deputy Attorney General; Michael L. Newman, Senior
Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Sacramento,
California; William Tong, Attorney General; Maura Murphy
Osborne, Assistant Attorney General; Office of the Attorney
General, Hartford, Connecticut; Kathleen Jennings,
Attorney General; Ilona Kirshon, Deputy State Solicitor;
Jessica M. Willey and David J. Lyons, Deputy Attorneys
General; Delaware Department of Justice, Wilmington,
Delaware; Karl A. Racine, Attorney General; Loren L.
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 9
AliKhan, Solicitor General; Caroline S. Van Zile, Deputy
Solicitor General; Graham E. Phillips, Assistant Attorney
General; Office of the Attorney General, Washington, D.C.;
Clare Connors, Attorney General; Erin Lau, Deputy
Attorney General; Department of the Attorney General,
Honolulu, Hawaii; Kwame Raoul, Attorney General;
Elizabeth Morris, Assistant Attorney General; Office of the
Attorney General, Chicago, Illinois; Brian E. Frosh,
Attorney General; Steven M. Sullivan, Solicitor General;
Kimberly S. Cammarata, Senior Assistant Attorney General;
Attorney General’s Office, Baltimore, Maryland; Keith
Ellison, Attorney General; Jacob Campion, Assistant
Attorney General; Office of the Attorney General, St. Paul,
Minnesota; Letitia James, Attorney General; Barbara D.
Underwood, Solicitor General; Lisa Landau, Bureau Chief,
Health Care Bureau; Steven C. Wu, Deputy Solicitor
General; Ester Murdukhayeva, Assistant Solicitor General;
Office of the Attorney General, New York, New York;
Joshua H. Stein, Attorney General; Sripriya Narasimhan,
Deputy General Counsel; Department of Justice, Raleigh,
North Carolina; Peter F. Neronha, Attorney General;
Michael W. Field, Assistant Attorney General; Office of the
Attorney General, Providence, Rhode Island; Thomas J.
Donovan Jr., Attorney General; Eleanor Spottswood,
Assistant Attorney General; Attorney General’s Office,
Montpelier, Vermont; Mark R. Herring, Attorney General;
Toby J. Heytens, Solicitor General; Samuel T. Towell,
Deputy Attorney General; Office of the Attorney General,
Richmond, Virginia; Robert W. Ferguson, Attorney
General; Jeffrey T. Sprung and Alicia O. Young, Assistant
Attorneys General; Office of the Attorney General, Seattle,
Washington; for Plaintiffs-Appellees.
10 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
Dwight G. Duncan, Colbe Mazzarella, North Dartmouth,
Massachusetts, for Amici Curiae Residents and Families of
Residents at Homes of the Little Sisters of the Poor.
Ken Paxton, Attorney General; Jeffrey C. Mateer, First
Assistant Attorney General; Kyle D. Hawkins, Solicitor
General; Jason R. LaFond, Assistant Solicitor General;
Office of the Attorney General, Austin, Texas; Steve
Marshall, Attorney General of Alabama; Leslie Rutledge,
Attorney General of Arkansas; Christopher M. Garr,
Attorney General of Idaho; Lawrence Wasden, Attorney
General of Idaho; Jeff Landry, Attorney General of
Louisiana; Eric Schmitt, Attorney General of Missouri; Tim
Fox, Attorney General of Montana; Doug Peterson, Attorney
General of Nebraska; Mike Hunter, Attorney General of
Oklahoma; Alan Wilson, Attorney General of South
Carolina; Sean Reyes, Attorney General of Utah; Patrick
Morrisey, Attorney General of West Virginia; for Amici
Curiae States of Texas, Alabama, Arkansas, Georgia, Idaho,
Louisiana, Missouri, Montana, Nebraska, Oklahoma, South
Carolina, Utah, and West Virginia.
Miles E. Coleman, Nelson Mullins Riley & Scarborough
LLP, Greenville, South Carolina, for Amici Curiae
Constitutional Law Scholars.
Stephanie N. Taub and Lea E. Patterson, First Liberty
Institute, Plano, Texas, for Amicus Curiae First Liberty
Institute.
Daniel L. Chen, Gibson Dunn & Crutcher LLP, San
Francisco, California; Paul Collins and Robert E. Dunn,
Gibson Dunn & Crutcher LLP, Palo Alto, California; for
Amicus Curiae Religious Sisters of Mercy.
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 11
Elizabeth O. Gill, ACLU Foundation of Northern California,
San Francisco, California; Minouche Kandel, ACLU
Foundation of Southern California, Los Angeles, California;
Brigitte Amiri, ACLU Foundation, New York, New York;
David Loy, ACLU Foundation of San Diego & Imperial
Counties, San Diego, California; for Amici Curiae American
Civil Liberties Union, ACLU of Northern California, ACLU
of Southern California, ACLU of San Diego and Imperial
Counties, Anti-Defamation League, Leadership Conference
on Civil and Human Rights, and National Urban League.
Priscilla Joyce Smith, Yale Law School, Brooklyn, New
York, for Amicus Curiae Program for the Study of
Reproductive Justice at Yale Law School.
Jamie A. Levitt and Rhiannon N. Batchelder, Morrison &
Foerster LLP, New York, New York, for Amici Curiae
American Association of University Women, Service
Employees International Union, and 16 Additional
Professional, Labor, and Student Associations.
Diana Kasdan and Joel Dodge, Center for Reproductive
Rights, New York, New York; Dariely Rodriguez, Dorian
Spence, and Phylicia H. Hill, Lawyers’ Committee for Civil
Rights Under Law, Washington, D.C.; for Amici Curiae
Center for Reproductive Rights, Lawyers’ Committee for
Civil Rights Under Law, California Women’s Law Center,
GLBTQ Legal Advocates & Defenders, Latinojustice
PRLDEF, Lawyers for Civil Rights, Legal Momentum,
Legal Voice, Mississippi Center for Justice, National Center
for Lesbian Rights, Public Counsel, and Women’s Law
Project.
Maura Healey, Attorney General; Elizabeth N. Dewar, State
Solicitor; Jonathan B. Miller, Jon Burke, and Julia E.
12 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
Kobick, Assistant Attorneys General; Elizabeth Carnes
Flynn, Special Assistant Attorney General; Office of the
Attorney General, Boston, Massachusetts; Thomas J. Miller,
Attorney General, Office of the Attorney General, Des
Moines, Iowa; Aaron M. Frey, Attorney General, Office of
the Attorney General, Augusta, Maine; Gurbir S. Grewal,
Attorney General, Office of the Attorney General, Trenton,
New Jersey; Hector Balderas, Attorney General, Office of
the Attorney General, Santa Fe, New Mexico; Josh Shapiro,
Attorney General, Office of the Attorney General,
Harrisburg, Pennsylvania; for Amici Curiae Massachusetts,
Iowa, Maine, New Jersey, New Mexico, and Pennsylvania.
Fatima Gross Graves, Gretchen Borchelt, Michelle Banker,
and Sunu Chandy, National Women’s Law Center,
Washington, D.C.; Jane Liu, National Asian Pacific
American Women’s Forum, Washington, D.C.; Sequoia
Ayala and Jill Heaviside, Sisterlove Inc., Atlanta, Georgia;
Jeffrey Blumenfeld, Lowenstein Sandler LLP, Washington,
D.C.; Naomi D. Barrowclough, Lowenstein Sandler LLP,
Roseland, New Jersey; for Amici Curiae National Women’s
Law Center, National Latina Institute for Reproductive
Health, Sisterlove Inc., and National Asian Pacific American
Women’s Forum.
Bruce H. Schneider, Michele L. Pahmer, and Giliana Keller,
Stroock & Stroock & Lavan LLP, New York, New York, for
Amici Curiae Brief of Health Professional Organizations,
American Nurses Association, American College of
Obstetricians and Gynecologists, American Academy of
Nursing, American Academy of Pediatrics, Physicians for
Reproductive Health, and California Medical Association.
Leah R. Bruno, Alan S. Gilbert, Cicely R. Miltich, and
Jacqueline A. Giannini, Dentons US LLP, Chicago, Illinois;
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 13
Joel D. Siegel, Dentons US LLP, Los Angeles, California;
for Amici Curiae U.S. Women’s Chamber of Commerce and
National Association for Female Executives.
Cindy Nesbit, The Sikh Coalition, New York, New York;
Sirine Shebaya, Nimra Azmi, Muslim Advocates,
Washington, D.C.; Richard B. Katskee, Carmen N. Green,
and Alison Tanner, Americans United for Separate of
Church and State; for Amici Curiae Religious and Civil-
Rights Organizations.
Barbara J. Parker, City Attorney; Maria Bee, Erin Bernstein,
Malia McPherson, and Caroline Wilson; Office of the City
Attorney, Oakland, California; James R. Williams, County
Counsel; Greta S. Hansen, Laura S. Trice, and Lorraine Van
Kirk, San Jose, California; Office of the County Counsel,
San Jose, California; for Amici Curiae 14 Cities, Counties,
and Local Agencies.
14 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
OPINION
WALLACE, Circuit Judge:
The Affordable Care Act (ACA) and the regulations
implementing it require group health plans to cover
contraceptive care without cost sharing. Federal agencies
issued final rules exempting employers with religious and
moral objections from this requirement. The district court
issued a preliminary injunction barring the enforcement of
the rules in several states. We have jurisdiction under
28 U.S.C. § 1292, and we affirm.
I.
We recounted the relevant background in a prior opinion.
See California v. Azar, 911 F.3d 558, 566–68 (9th Cir.
2018). We reiterate it here as necessary to resolve this
appeal.
The ACA provides:
A group health plan and a health insurance
issuer offering group or individual health
insurance coverage shall, at a minimum
provide coverage for and shall not impose
any cost sharing requirements for . . . with
respect to women, such additional preventive
care and screenings . . . as provided for in
comprehensive guidelines supported by the
Health Resources and Services
Administration [HRSA] . . . .
42 U.S.C. § 300gg-13(a)(4) (also known as the Women’s
Health Amendment). HRSA established guidelines for
women’s preventive care that include any “[FDA] approved
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 15
contraceptive methods, sterilization procedures, and patient
education and counseling.” Group Health Plans and Health
Insurance Issuers Relating to Coverage of Preventive
Services Under the Patient Protection and Affordable Care
Act, 77 Fed. Reg. 8,725-01, 8,725 (Feb. 15, 2012). The three
agencies responsible for implementing the ACA—the
Department of Health and Human Services, the Department
of Labor, and the Department of the Treasury (collectively,
agencies)—issued regulations requiring coverage of all
preventive care contained in HRSA’s guidelines. 1 See, e.g.,
45 C.F.R. § 147.130(a)(1)(iv).
The agencies also recognized that religious
organizations may object to the use of contraceptive care and
to the requirement to offer insurance that covers such care.
For those organizations, the agencies provide two avenues
for alleviating those objections. First, group health plans of
certain religious employers, such as churches, are
categorically exempt from the contraceptive care
requirement. See Coverage of Certain Preventive Services
Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,874
(July 2, 2013). Second, nonprofit “eligible organizations”
that are not categorically exempt can opt out of having to
“contract, arrange, pay, or refer for contraceptive coverage.”
Id. To be eligible, the organization must file a self-
certification form stating (1) that it “opposes providing
coverage for some or all of any contraceptive services
required to be covered under [the regulation] on account of
1
Certain types of plans, called “grandfathered” plans, were
statutorily exempt from the contraceptive care requirement. See
generally Final Rules for Grandfathered Plans, Preexisting Condition
Exclusions, Lifetime and Annual Limits, Rescissions, Dependent
Coverage, Appeals, and Patient Protections Under the Affordable Care
Act, 80 Fed. Reg. 72,192-01 (Nov. 18, 2015).
16 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
religious objections,” (2) that it “is organized and operates
as a nonprofit entity,” and (3) that it “holds itself out as a
religious organization.” Id. at 39,893. The organization
sends a copy of the form to its insurance issuer or third-party
administrator (TPA), which must then provide contraceptive
care for the organization’s employees without any further
involvement by the organization. Id. at 39,875–76. The
regulations refer to this second avenue as the
“accommodation,” and it was designed to avoid imposing on
organizations’ beliefs that paying for or facilitating coverage
for contraceptive care violates their religion. Id. at 39,874.
The agencies later amended the accommodation process
in response to legal challenges. First, certain closely-held
for-profit organizations became eligible for the
accommodation. See Coverage of Certain Preventive
Services Under the Affordable Care Act, 80 Fed. Reg.
41,318-01, 41,343 (July 14, 2015); see also Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 736 (2014).
Second, instead of directly sending a copy of the self-
certification form to the issuer or TPA, an eligible
organization could simply notify the Department of Health
and Human Services in writing, which then would inform
the issuer or TPA of its regulatory obligations. 80 Fed. Reg.
at 41,323; see also Wheaton Coll. v. Burwell, 134 S. Ct.
2806, 2807 (2014).
Various organizations then challenged the amended
accommodation process as a violation of the Religious
Freedom Restoration Act (RFRA). The actions reached the
Supreme Court, and the Supreme Court vacated and
remanded to afford the parties “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
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 17
equal health coverage, including contraceptive coverage.”
Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016) (internal
quotation marks and citation omitted). The Court
“express[ed] no view on the merits of the cases,” and did not
decide “whether petitioners’ religious exercise has been
substantially burdened, whether the [g]overnment has a
compelling interest, or whether the current regulations are
the least restrictive means of serving that interest.” Id.The agencies solicited comments on the accommodation
process in light of Zubik, but ultimately declined to make
further changes. See Dep’t of Labor, FAQs About
Affordable Care Act Implementation Part 36, at 4,
www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activiti
es/resource-center/faqs/aca-part-36.pdf. The agencies
concluded, in part, that “the existing accommodation
regulations are consistent with RFRA” because “the
contraceptive-coverage requirement [when viewed in light
of the accommodation] does not substantially burden the[]
exercise of religion.” Id.On May 4, 2017, the President issued an executive order
directing the secretaries of the agencies to “consider issuing
amended regulations, consistent with applicable law, to
address conscience-based objections to” the ACA’s
contraceptive care requirement. Promoting Free Speech and
Religious Liberty, Exec. Order No. 13,798, 82 Fed. Reg.
21,675, 21,675 (May 4, 2017). Thereafter, effective October
6, 2017, the agencies effectuated two interim final rules
(IFRs) which categorically exempted certain entities from
the contraceptive care requirement. See Religious
Exemptions and Accommodations for Coverage of Certain
Preventive Services Under the Affordable Care Act, 82 Fed.
Reg. 47,792, 47,792 (Oct. 13, 2017); Moral Exemptions and
Accommodations for Coverage of Certain Preventive
18 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
Services Under the Affordable Care Act, 82 Fed. Reg.
47,838-01, 47,838 (Oct. 13, 2017). The first exempted all
entities “with sincerely held religious beliefs objecting to
contraceptive or sterilization coverage” and made the
accommodation optional for them. 82 Fed. Reg. at 47,808.
The second exempted “additional entities and persons that
object based on sincerely held moral convictions,”
“expand[ed] eligibility for the accommodation to include
organizations with sincerely held moral convictions
concerning contraceptive coverage,” and made the
accommodation optional for those entities. 82 Fed. Reg. at
47,849.
California, Delaware, Maryland, New York, and
Virginia sued the agencies and their secretaries, seeking to
enjoin the enforcement of the IFRs and alleging that they are
invalid under the Administrative Procedure Act (APA). The
district court, in relevant part, held that the plaintiff states
had standing to challenge the IFRs and issued a nationwide
preliminary injunction based on the states’ likelihood of
success on their procedural APA claim—that the IFRs were
invalid for failing to follow notice and comment rulemaking.
After issuing the injunction, the district court allowed Little
Sisters of the Poor, Jeanne Jugan Residence (Little Sisters)
and March for Life Education and Defense Fund (March for
Life) to intervene.
We affirmed the district court except as to the nationwide
scope of the injunction. See California, 911 F.3d at 585. We
limited the geographic scope of the injunction to the states
that were plaintiffs in the case. See id. Shortly after the
panel issued the opinion, the final rules became effective on
January 14, 2019, superseding the IFRs. See Religious
Exemptions and Accommodations for Coverage of Certain
Preventive Services Under the Affordable Care Act, 83 Fed.
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 19
Reg. 57,536-01, 57,536 (Nov. 15, 2018); Moral Exemptions
and Accommodations for Coverage of Certain Preventive
Services Under the Affordable Care Act, 83 Fed. Reg.
57,592-01, 57,592 (Nov. 15, 2018). The final rules made
“various changes . . . to clarify the intended scope of the
language” in “response to public comments,” 83 Fed. Reg.
at 57,537, 57,593. However, the parties agree that the final
rules are materially identical to the IFRs for the purposes of
this appeal.
The plaintiff states then amended their complaint to
enjoin the enforcement of the final rules. They alleged a
number of claims, including that the rules are substantively
invalid under the APA. The amended complaint joined as
plaintiffs the states of Connecticut, Hawaii, Illinois,
Minnesota, North Carolina, Rhode Island, Vermont, and
Washington, and the District of Columbia. The district court
determined that the final rules were likely invalid as
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” and issued a preliminary
injunction. In light of the concerns articulated in our prior
opinion, see California, 911 F.3d at 582–84, the geographic
scope of the injunction was limited to the plaintiff states.
The district court then proceeded to ready the case for trial.
The agencies, Little Sisters, and March for Life appeal from
the preliminary injunction.
II.
We review standing de novo. See Navajo Nation v.
Dep’t of the Interior, 876 F.3d 1144, 1160 (9th Cir. 2017).
We review a preliminary injunction for abuse of discretion.
See Network Automation, Inc. v. Advanced Sys. Concepts,
Inc., 638 F.3d 1137, 1144 (9th Cir. 2011). “In deciding
whether the district court has abused its discretion, we
employ a two-part test: first, we ‘determine de novo whether
20 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
the trial court identified the correct legal rule to apply to the
relief requested’; second, we determine ‘if the district court’s
application of the correct legal standard was (1) illogical,
(2) implausible, or (3) without support in inferences that may
be drawn from the facts in the record.’” Pimentel v. Dreyfus,
670 F.3d 1096, 1105 (9th Cir. 2012) (quoting Cal.
Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1104
(9th Cir. 2010)). The review is highly deferential: we must
“uphold a district court determination that falls within a
broad range of permissible conclusions in the absence of an
erroneous application of law,” and we reverse “only when”
we are “convinced firmly that the reviewed decision lies
beyond the pale of reasonable justification under the
circumstances.” Microsoft Corp. v. Motorola, Inc., 696 F.3d
872, 881 (9th Cir. 2012) (first quoting Grant v. City of Long
Beach, 715 F.3d 1081, 1091 (9th Cir. 2002); then quoting
Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000)).
III.
We again hold that the plaintiff states have standing to
sue. As the agencies properly recognize, our prior decision
and its underlying reasoning foreclose any arguments
otherwise. See California, 911 F.3d at 570–74; Nordstrom
v. Ryan, 856 F.3d 1265, 1270–71 (9th Cir. 2017) (holding
that, where a panel previously held in a published opinion
that the plaintiff has standing, that ruling is binding under
“both the law-of-the-case doctrine and our law-of-the-circuit
rules”); see also Rocky Mountain Farmers Union v. Corey,
913 F.3d 940, 951 (9th Cir. 2019) (“[L]aw of the case
doctrine generally precludes reconsideration of an issue that
has already been decided by the same court, or a higher court
in the identical case”); Miranda v. Selig, 860 F.3d 1237,
1243 (9th Cir. 2017) (“[U]nder the law-of-the-circuit rule,
we are bound by decisions of prior panels[] unless an en banc
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 21
decision, Supreme Court decision, or subsequent legislation
undermines those decisions” (internal quotation marks and
alterations omitted)).
Little Sisters and March for Life have not identified any
new factual or legal developments since our prior decision
that require us to reconsider standing here. To the contrary,
a recent decision by the Supreme Court strongly supports our
previous holding that the plaintiff states have standing. In
Department of Commerce v. New York, 139 S. Ct. 2551,
2566 (2019), the Supreme Court held that the plaintiff states
had standing, even though their claims of harm depended on
unlawful conduct of third parties, because their theory of
standing “relies . . . on the predictable effect of Government
action on the decisions of third parties.” See also id.(“Article III requires no more than de facto causality”
(internal quotation marks omitted)). Here, the plaintiff
states’ theory of causation depends on wholly lawful conduct
and on the federal government’s own prediction about the
decisions of third parties. See California, 911 F.3d at 571–
73.
IV.
The thoughtful dissent suggests that this appeal is moot
because, the day after the district court issued its injunction
of limited scope, covering the territory of the thirteen
plaintiff states plus the District of Columbia, a district court
in Pennsylvania issued a similar nationwide injunction. See
Pennsylvania v. Trump, 351 F. Supp. 3d 791, 835 (E.D. Pa.),
aff’d 930 F.3d 543 (3d Cir.), petition for cert. filed, __
U.S.L.W. __ (U.S. Oct. 1, 2019) (No. 19-431). According
to the dissent, the nationwide injunction prevents us from
giving effective relief to the parties here and, accordingly,
moots this appeal. We ordered supplemental briefing on
whether this appeal is moot, and the parties unanimously
22 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
agreed that this appeal is not moot despite the nationwide
injunction from Pennsylvania. We agree.
As an initial matter, to our knowledge, no court has
adopted the view that an injunction imposed by one district
court against a defendant deprives every other federal court
of subject matter jurisdiction over a dispute in which a
plaintiff seeks similar equitable relief against the same
defendant. Instead, “in practice, nationwide injunctions do
not always foreclose percolation.” Spencer E. Amdur &
David Hausman, Nationwide Injunctions and Nationwide
Harm, 131 Harv. L. Rev. F. 49, 53 (2017). For example,
both this court and the Fourth Circuit recently “reviewed the
travel bans, despite nationwide injunctions in both.” Id. at
n.27.
The dissent appears to raise the “potentially serious
problem” of “conflicting injunctions” that arise from the
“forum shopping and decisionmaking effects of the national
injunction.” Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction, 131 Harv. L. Rev. 417,
462–63 (2017). Although courts have addressed this
problem in the past, no court has done so based on
justiciability principles.
For example, we have held that, “[w]hen an injunction
sought in one proceeding would interfere with another
federal proceeding, considerations of comity require more
than the usual measure of restraint, and such injunctions
should be granted only in the most unusual cases.” Bergh v.
Washington, 535 F.2d 505, 507 (9th Cir. 1976).
Significantly, however, the attempt “to avoid the waste of
duplication, to avoid rulings which may trench upon the
authority of sister courts, and to avoid piecemeal resolution
of issues that call for a uniform result” has always been a
prudential concern, not a jurisdictional one. W. Gulf Mar.
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 23
Ass’n v. ILA Deep Sea Local 24, S. Atl. & Gulf Coast Dist.
of ILA, 751 F.2d 721, 729 (5th Cir. 1985).
The dissent claims that the majority is “making the same
mistake today that we made in Yniguez v. Arizonans for
Official English, when in our zeal to correct what we thought
was a wrong, we issued an injunction on behalf of an
individual regarding her workplace.” Dissent at 43 (footnote
omitted). Yniguez is inapposite.
There, the United States Supreme Court reversed our
decision, holding that the plaintiff’s “changed
circumstances—her resignation from public sector
employment to pursue work in the private sector—mooted
the case stated in her complaint.” Arizonans for Official
English v. Arizona, 520 U.S. 43, 72 (1997). Here, by
contrast, the facts and circumstances supporting the
preliminary injunction have not materially changed such that
we are unable to affirm the relief that the plaintiff states seek
to have affirmed. This is therefore not a case in which “the
activities sought to be enjoined already have occurred, and
the appellate courts cannot undo what has already been
done” such that “the action is moot, and must be dismissed.”
Foster v. Carson, 347 F.3d 742, 746 (9th Cir. 2003) (quoting
Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 871 (9th Cir.
2002)). Article III simply requires that our review provide
redress for the asserted injuries, which the district court’s
preliminary injunction achieves.
The dissent’s logic also proves too much. If a court lacks
jurisdiction to consider the propriety of an injunction over
territory that is already covered by a different injunction,
then the Pennsylvania district court lacked jurisdiction to
issue an injunction beyond the territory of the thirty-seven
states not parties to this case. After all, when the
Pennsylvania district court issued its injunction, the district
24 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
court here had issued its injunction of limited geographic
scope. We hesitate to apply a rule that means that the
Pennsylvania district court plainly acted beyond its
jurisdiction. At most, then, the dissent’s reasoning would
lead us to conclude that the Pennsylvania injunction is
limited in scope to the territory of those thirty-seven non-
party states. Under that interpretation, the two injunctions
complement each other and do not conflict.
In any event, even if the Pennsylvania injunction has a
fully nationwide scope, we nevertheless retain jurisdiction
under the exception to mootness for cases capable of
repetition, yet evading review. “A dispute qualifies for that
exception only if (1) the challenged action is in its duration
too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action
again.” United States v. Sanchez-Gomez, 138 S. Ct. 1532,
1540 (2018) (internal quotation marks and citation omitted).
The first part is indisputably met here because the interval
between the limited injunction and the nationwide injunction
was one day—clearly “too short [for the preliminary
injunction] to be fully litigated prior to its cessation or
expiration.” Id. (quoting Turner v. Rogers, 564 U.S. 431,
439–40 (2011)).
The second part, too, is met because there is a reasonable
expectation that the federal defendants will, again, be
subjected to the injunction in this case. See Enyart v. Nat’l
Conf. of Bar Exam’rs, Inc., 630 F.3d 1153, 1159 (9th Cir.
2011) (applying the “capable of repetition” exception on
appeal from a preliminary injunction and querying whether
the defendant would again be subjected to a preliminary
injunction). In the Pennsylvania case, a petition for
certiorari challenges, among other things, the nationwide
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 25
scope of the Pennsylvania injunction. See Petition for Writ
of Certiorari, Little Sisters v. Pennsylvania, at 31–33 (No.
19-431). Given the recent prominence of the issue of
nationwide injunctions, the Supreme Court very well may
vacate the nationwide scope of the injunction. See Amanda
Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L.
Rev. 1065, 1119 (2018) (collecting arguments for and
against nationwide injunctions against the backdrop of “the
recent surge in nationwide injunctions”).
But no matter what action, if any, the Supreme Court
takes, the preliminary injunction in the Pennsylvania case is,
like all preliminary injunctions, of limited duration. Once
the Pennsylvania district court rules on the merits of that
case, the preliminary injunction will expire. At that point,
the federal defendants will once again be subjected to the
injunction in this case.
One possibility is to the contrary: the Pennsylvania
district court could rule in favor of the plaintiffs, choose to
exercise its discretion to issue a permanent injunction, and
choose to exercise its discretion to give the permanent
injunction nationwide effect despite the existence of an
injunction in this case. That mere possibility does not,
however, undermine our conclusion that, given the many
other possible outcomes in the Pennsylvania case, there
remains a “reasonable expectation” that the federal
defendants will be subjected to the injunction in this case. A
“reasonable expectation” does not demand certainty.
We acknowledge that we are in uncharted waters. The
Supreme Court has yet to address the effect of a nationwide
preliminary injunction on an appeal involving a preliminary
injunction of limited scope. Our approach to mootness in
this case is consistent with the Supreme Court’s interest in
allowing the law to develop across multiple circuits. If, of
26 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
course, our assessment of jurisdiction is incorrect such that,
for example, we should stay this appeal pending the outcome
in Pennsylvania, then we welcome guidance from the
Supreme Court. Under existing precedent, however, we
conclude that this appeal is not moot.
V.
A preliminary injunction is a matter of equitable
discretion and is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to
such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008) (citing
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). “A party
can obtain a preliminary injunction by showing that (1) it is
‘likely to succeed on the merits,’ (2) it is ‘likely to suffer
irreparable harm in the absence of preliminary relief,’
(3) ‘the balance of equities tips in [its] favor,’ and (4) ‘an
injunction is in the public interest.’” Disney Enters., Inc. v.
VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting
Winter, 555 U.S. at 20). Alternatively, an injunction may
issue where the likelihood of success is such that “serious
questions going to the merits” were raised and the balance of
hardships “tips sharply toward the plaintiff,” provided that
the plaintiff can also demonstrate the other two Winter
factors. Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131–32 (9th Cir. 2011).
The district court issued its injunction after concluding
that all four factors were met here. We address each factor
in turn.
A.
The APA requires that an agency action be held
“unlawful and [be] set aside” where it is “arbitrary,
capricious,” “not in accordance with the law,” or “in excess
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 27
of statutory jurisdiction.” 5 U.S.C. § 706(2). The district
court concluded that the plaintiff states are likely to succeed
on the merits of their APA claim or, at the very least, raised
serious questions going to the merits. In particular, the
district court determined that the agencies likely lacked the
authority to issue the final rules and that the rules likely are
arbitrary and capricious. The district court did not abuse its
discretion in so concluding.
1.
“[A]n agency literally has no power to act . . . unless and
until Congress confers power upon it.” Louisiana Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986). In reviewing
the scope of an agency’s authority to act, “the question . . .
is always whether the agency has gone beyond what
Congress has permitted it to do.” City of Arlington v. FCC,
569 U.S. 290, 297–98 (2013). The agencies have
determined that the ACA gives them “significant discretion
to shape the content, scope, and enforcement of any
preventative-services guidelines adopted” pursuant to the
Women’s Health Amendment. Specifically, the agencies
highlight that “nothing in the statute mandated that the
guidelines include contraception, let alone for all types of
employers with covered plans.”
We examine the “plain terms” and “core purposes” of the
Women’s Health Amendment to determine whether the
agencies have authority to issue the final rules. FERC v.
Elec. Power Supply Ass’n, 136 S. Ct. 760, 773 (2016). The
statute requires that group health plans and insurance issuers
“shall, at a minimum provide coverage for and shall not
impose any cost sharing requirements for . . . with respect to
women, such additional preventive care and screenings . . .
as provided for in the comprehensive guidelines supported
by [HRSA].” 42 U.S.C. § 300gg-13(a)(4). First, “shall” is
28 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
a mandatory term that “normally creates an obligation
impervious to . . . discretion.” Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998). By its
plain language, the statute states that group health plans and
insurance issuers must cover preventative care without cost
sharing. See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91
(2006) (“[S]tatutory terms are generally interpreted in
accordance with their ordinary meaning”).
The statute grants HRSA the limited authority to
determine which, among the different types of preventative
care, are to be covered. See Hobby Lobby, 573 U.S. at 697
(“Congress itself, however, did not specify what types of
preventive care must be covered . . . . Congress authorized
[HRSA] . . . to make that important and sensitive decision”).
But nothing in the statute permits the agencies to determine
exemptions from the requirement. In other words, the statute
delegates to HRSA the discretion to determine which types
of preventative care are covered, but the statute does not
delegate to HRSA or any other agency the discretion to
exempt who must meet the obligation. To interpret the
statute’s limited delegation more broadly would contradict
the plain language of the statute. See Arlington, 569 U.S.
at 296 (“Congress knows to speak in plain terms when it
wishes to circumscribe, and in capacious terms when it
wishes to enlarge, agency discretion”). Although the
agencies argue otherwise, “an agency’s interpretation of a
statute is not entitled to deference when it goes beyond the
meaning that the statute can bear.” MCI Telecomms Corp.
v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994).
Our interpretation is consistent with the ACA’s statutory
scheme. When enacting the ACA, Congress did provide for
religious and moral protections in certain contexts. See, e.g.,
42 U.S.C. § 18113 (assisted suicide procedures). It did not
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 29
provide for similar protections regarding the preventative
care requirement. Instead, Congress chose to provide for
other exceptions to that requirement, such as for
grandfathered plans. See 42 U.S.C. § 18011. “[W]hen
Congress provides exceptions in a statute, . . . [t]he proper
inference . . . is that Congress considered the issue of
exceptions and, in the end, limited that statute to the ones set
forth.” United States v. Johnson, 529 U.S. 53, 58 (2000). In
fact, after the ACA’s passage, the Senate considered and
rejected a “conscience amendment,” 158 Cong. Rec. S538–
39 (Feb. 9, 2012); id. at S1162–73 (Mar. 1, 2012), that would
have allowed health plans to decline to provide contraceptive
coverage contrary to asserted religious or moral convictions.
See Doe v. Chao, 540 U.S. 614, 622 (2004) (reversing award
of damages, in part, because of “drafting history showing
that Congress cut out the very language in the bill that would
have authorized [them]”). While Congress’s failure to adopt
a proposal is often a “particularly dangerous ground on
which to rest an interpretation” of a statute, Interstate Bank
of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 187 (1994), the conscience amendment’s
failure combined with the existence of other exceptions
suggests that Congress did not contemplate a conscience
exception when it passed the ACA.
The “core purpose[]” of the Women’s Health
Amendment further confirms our interpretation. FERC,
136 S. Ct. at 773; see also Sec. Indus. Ass’n v. Bd. of
Governors of Fed. Reserve Sys., 468 U.S. 137, 143 (1984)
(“A reviewing court ‘must reject administrative
constructions of [a] statute, whether reached by adjudication
or by rulemaking, that are inconsistent with the statutory
mandate or that frustrate the policy that Congress sought to
implement’” (quoting FEC v. Democratic Senatorial
Campaign Comm’n, 454 U.S. 27, 32 (1981))). The
30 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
legislative history indicates that the Amendment sought to
“requir[e] that all health plans cover comprehensive
women’s preventative care and screenings—and cover these
recommended services at little or no cost to women.”
155 Cong. Rec. S12025 (Dec. 1, 2009) (Sen. Boxer); id.at S12028 (Sen. Murray highlighting that a “comprehensive
list of women’s preventive services will be covered”); id. at
S12042 (Sen. Harkin stating that “[b]y voting for this
amendment . . . we can ensure that all women will have
access to the same baseline set of comprehensive preventive
benefits”). While legislators’ individual comments do not
necessarily prove intent of the majority of the legislature,
here the Amendment’s supporters and sponsors delineated
that the types of “preventive services covered . . . would be
determined by [HRSA] to meet the unique preventative
health needs of women.” Id. at S12025 (Sen. Boxer); see
also id. at S12027 (Sen. Gillibrand stating that “[t]his
amendment will ensure that the coverage of women’s
preventive services is based on a set of guidelines developed
by women’s health experts”); id. at S12026 (Sen. Mikulski
stating that “[i]n my amendment we expand the key
preventive services for women, and we do it in a way that is
based on recommendations . . . from HRSA”). In this case,
at the preliminary injunction stage, the evidence is sufficient
for us to hold that providing free contraceptive services was
a core purpose of the Women’s Health Amendment.
In response, the appellants highlight that they have
already issued rules exempting churches from the
contraceptive care requirement, invoking the same statutory
provision. See Group Health Plans and Health Insurance
Issuers Relating to Coverage of Preventive Services under
the Patient Protection and Affordable Care Act, 76 Fed. Reg.
46621-01, 46,623 (Aug. 3, 2011). The legality of the church
exemption rules is not before us, and we will not render an
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 31
advisory opinion on that issue. See Alameda Conservation
Ass’n v. California, 437 F.2d 1087, 1093 (9th Cir. 1971).
Moreover, the existence of one exemption does not
necessarily justify the authority to issue a different
exemption or any other exemption that the agencies decide.
Cf. California, 911 F.3d at 575–76 (stating that “prior
invocations of good cause to justify different IFRs—the
legality of which are not challenged here—have no
relevance”).
Given the text, purpose, and history of the Women’s
Health Amendment, the district court did not err in
concluding that the agencies likely lacked statutory authority
under the ACA to issue the final rules.
2.
Under RFRA, the government “shall not substantially
burden a person’s exercise of religion even if the burden
results from a rule of general applicability” unless “it
demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-
1(a)–(b). The appellants argue that the regulatory regime
that existed before the rules’ issuance—i.e., the
accommodation process—violated RFRA. They argue that
RFRA requires, or at least authorizes, them to eliminate the
violation by issuing the religious exemption 2 and “not
2
RFRA pertains only to the exercise of religion; it does not concern
moral convictions. For that reason, the appellants’ RFRA argument is
limited to the religious exemption only. RFRA plainly does not
authorize the moral exemption.
32 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
simply wait for the inevitable lawsuit and judicial order to
comply with RFRA.”
As a threshold matter, we question whether RFRA
delegates to any government agency the authority to
determine violations and to issue rules addressing alleged
violations. At the very least, RFRA does not make such
authority explicit. Compare 42 U.S.C. § 2000bb-1, with
47 U.S.C. § 201(b) (delegating agency authority to
“prescribe such rules and regulations as may be necessary in
the public interest to carry out the provisions of the Act”),
and 15 U.S.C. § 77s(a) (“The Commission shall have
authority from time to time to make, amend, and rescind
such rules and regulations as may be necessary to carry out
the provisions of this subchapter”). Instead, RFRA appears
to charge the courts with determining violations. See
42 U.S.C. § 2000bb-1(c) (providing that a person whose
religious exercise has been burdened “may assert that
violation . . . in a judicial proceeding” (emphasis added));
Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 434 (2006) (“RFRA makes clear that
it is the obligation of the courts to consider whether
exceptions are required under the test set forth by
Congress”).
Moreover, even assuming that agencies are authorized to
provide a mechanism for resolving perceived RFRA
violations, RFRA likely does not authorize the religious
exemption at issue in this case, for two independent reasons.
First, the religious exemption contradicts congressional
intent that all women have access to appropriate preventative
care. The religious exemption is thus notably distinct from
the accommodation, which attempts to accommodate
religious objectors while still meeting the ACA’s mandate
that women have access to preventative care. The religious
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 33
exemption here chooses winners and losers between the
competing interests of two groups, a quintessentially
legislative task. Strikingly, Congress already chose a
balance between those competing interests and chose both to
mandate preventative care and to reject religious and moral
exemptions. The agencies cannot reverse that legislatively
chosen balance through rulemaking.
Second, the religious exemption operates in a manner
fully at odds with the careful, individualized, and searching
review mandate by RFRA. Federal courts accept neither
self-certifications that a law substantially burdens a
plaintiff’s exercise of religion nor blanket assertions that a
law furthers a compelling governmental interest. Instead,
before reaching those conclusions, courts make
individualized determinations dependent on the facts of the
case, by “careful[ly]” considering the nature of the plaintiff’s
beliefs and “searchingly” examining the governmental
interest. Wisconsin v. Yoder, 406 U.S. 205, 215, 221 (1972).
“[C]ontext matters.” Cutter v. Wilkinson, 544 U.S. 709, 723
(2005); see O Centro, 546 U.S. at 430–31 (“RFRA requires
the Government to demonstrate that the compelling interest
test is satisfied through application of the challenged law ‘to
the person’—the particular claimant whose sincere exercise
of religion is being substantially burdened” (quoting
42 U.S.C. § 2000bb-1(b)); Oklevueha Native Am. Church of
Haw., Inc. v. Lynch, 828 F.3d 1012, 1015–17 (9th Cir. 2016)
(holding that, although plaintiffs in other cases had
established that a prohibition on the use of certain drugs was
a substantial burden on those plaintiffs’ exercise of religion,
the plaintiffs in this case had not met their burden of
establishing that the prohibition on cannabis use imposed a
substantial burden on the plaintiffs’ exercise of religion). In
sum, the agencies here claim an authority under RFRA—to
impose a blanket exemption for self-certifying religious
34 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
objectors—that far exceeds what RFRA in fact authorizes. 3
See Hobby Lobby, 573 U.S. at 719 n.30 (noting that a
proposed “blanket exemption” for religious objectors
“extended more broadly than the . . . protections of RFRA”
because it “would not have subjected religious-based
objections to the judicial scrutiny called for by RFRA, in
which a court must consider not only the burden of a
requirement on religious adherents, but also the
government’s interest and how narrowly tailored the
requirement is”).
Regardless of our questioning of the agencies’ authority
pursuant to RFRA, however, it is of no moment in this
appeal because the accommodation process likely does not
substantially burden the exercise of religion and hence does
not violate RFRA. “[A] ‘substantial burden’ is imposed only
when individuals are forced to choose between following the
tenets of their religion and receiving a governmental benefit
. . . or coerced to act contrary to their religious beliefs by the
threat of civil or criminal sanctions.” Navajo Nation v.
United States Forest Serv., 535 F.3d 1058, 1070 (9th Cir.
2008); see also Kaemmerling v. Lappin, 553 F.3d 669, 678
(D.C. Cir. 2008) (“An inconsequential or de minimis burden
3
The religious exemption’s automatic acceptance of a self-
certification is particularly troublesome given that it has an immediate
detrimental effect on the employer’s female employees. The religious
exemption fails to “take adequate account of the burdens . . . impose[d]
on nonbeneficiaries.” Cutter, 544 U.S. at 720. Similarly, the exemption
is not “measured so that it does not override other significant interests.”
Id. at 722; see also Estate of Thornton v. Caldor, Inc., 472 U.S. 703,
709–10 (1985) (invalidating a law that “arm[ed]” one type of religious
objector “with an absolute and unqualified right” to violate otherwise
applicable laws, holding that “[t]his unyielding weighting in favor of [a
religious objector] over all other interests” violates the Religion
Clauses).
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 35
on religious practice” is not a substantial burden). Whether
a government action imposes a substantial burden on
sincerely-held religious beliefs is a question of law. Guam
v. Guerrero, 290 F.3d 1210, 1222 n.20 (9th Cir. 2002).
The Supreme Court has not yet decided whether the
accommodation violates RFRA. In Hobby Lobby, the Court
suggested that it did not. The Court described the
accommodation as “effectively exempt[ing] certain religious
nonprofit organizations . . . from the contraceptive
mandate.” 573 U.S. at 698. The Court characterized the
accommodation as “an approach that is less restrictive than
requiring employers to fund contraceptive methods that
violate their religious beliefs.” Id. at 730. It observed that,
“[a]t a minimum, [the accommodation did] not impinge on
the plaintiffs’ religious belief that providing insurance
coverage for the contraceptives at issue here violates their
religion, and it serves HHS’s stated interests equally well.”
Id. at 731. Specifically, it highlighted that, “[u]nder the
accommodation, the plaintiffs’ female employees would
continue to receive contraceptive coverage without cost
sharing for all FDA-approved contraceptives, and they
would continue to ‘face minimal logistical and
administrative obstacles . . . because their employers’
insurers would be responsible for providing information and
coverage.” Id. at 732 (citing 45 CFR §§ 147.131(c)–(d)).
Indeed, before Zubik, eight courts of appeals (of the nine
to have considered the issue) had concluded that the
accommodation process did not impose a substantial burden
on religious exercise under RFRA. 4 The Supreme Court
4
See Priests for Life v. U.S. Dep’t of Health & Human Servs.,
772 F.3d 229 (D.C. Cir. 2014), vacated, Zubik, 136 S. Ct. at 1561;
Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015),
36 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
then vacated the nine circuit cases addressing the issue
without discussing the merits. See, e.g., Zubik, 136 S. Ct.
at 1560. After Zubik, the Third Circuit has reiterated that the
accommodation process did not impose a substantial burden
under RFRA. See Real Alternatives, Inc. v. Sec’y Dep't of
Health & Human Servs., 867 F.3d 338, 356 n.18 (3d Cir.
2017) (“Although our judgment in Geneva was vacated by
the Supreme Court, it nonetheless sets forth the view of our
[c]ourt, which was based on Supreme Court precedent, that
we continue to believe to be correct regarding . . . our
conclusion that the regulation at issue there did not impose a
substantial burden”).
We have not previously expressed any views on the
matter, whether before or after Zubik. We now hold that the
vacated, 136 S. Ct. 2450 (2016); Geneva Coll. v. Sec’y U.S. Dep’t of
Health & Human Servs., 778 F.3d 422 (3d Cir. 2015), vacated, Zubik,
136 S. Ct. at 1561; E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th
Cir. 2015), vacated, Zubik, 136 S. Ct. at 1561; Mich. Catholic
Conference & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir.
2015), vacated, 136 S. Ct. 2450 (2016); Grace Schs. v. Burwell, 801 F.3d
788 (7th Cir. 2015), vacated, 136 S. Ct. 2011 (2016); Little Sisters of the
Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th
Cir. 2015), vacated, Zubik, 136 S. Ct. at 1561; Eternal Word Television
Network v. Sec’y of U.S. Dep’t Health & Human Servs., 818 F.3d 1122(11th Cir. 2016), vacated, 2016 WL 11503064 (11th Cir. May 31, 2016)
(No. 14-12696-CC), as modified by 2016 WL 11504187 (11th Cir. Oct.
3, 2016).
Only the Eighth Circuit has concluded otherwise. See Sharpe
Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 801 F.3d 927,
945 (8th Cir. 2015) (affirming grant of preliminary injunction to
religious objectors because “they [were] likely to succeed on the merits
of their RFRA challenge to the contraceptive mandate and the
accommodation regulations”), vacated sub nom. Dep’t of Health &
Human Servs. v. CNS Int’l Ministries, No. 15-775, 2016 WL 2842448,
at *1 (U.S. May 16, 2016).
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 37
accommodation process likely does not substantially burden
the exercise of religion. An organization with a sincere
religious objection to arranging contraceptive coverage need
only send a self-certification form to the insurance issuer or
the TPA, or send a written notice to DHHS. See 29 C.F.R.
§ 2590.715-2713A(b)(1)(ii). Once the organization has
taken the simple step of objecting, all actions taken to pay
for or provide the organization’s employees with
contraceptive care is carried out by a third party, i.e.,
insurance issuer or TPA. See, e.g., 45 C.F.R. § 147.131(d)
(requiring that the issuer or third-party administrator notify
the employees in separate mailing that that it will be
providing contraceptive care separate from the employer,
with the mailing specifying that employer is in no way
“administer[ing] or fund[ing]” the contraceptive care);
45 C.F.R. § 147.131(d) (prohibiting third parties from
directly or indirectly charging objecting organizations for
the cost of contraceptive coverage and obligating the third
parties to pay for the contraceptive care).
Once it has opted out, the organization’s obligation to
contract, arrange, pay, or refer for access to contraception is
completely shifted to third parties. The organization may
then freely express its opposition to contraceptive care.
Viewed objectively, completing a form stating that one has
a religious objection is not a substantial burden—it is at most
a de minimis burden. The burden is simply a notification,
after which the organization is relieved of any role
whatsoever in providing objectionable care. By contrast,
cases involving substantial burden under RFRA have
involved more significant burdens on religious objectors.
See O Centro, 546 U.S. at 425–26 (substantial burden where
the Controlled Substances Act prevented the religious
objector plaintiffs from ever again engaging in a sacramental
ritual); Hobby Lobby, 573 U.S. at 719–26 (substantial
38 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
burden, in the absence of the accommodation, where the
contraceptive care requirement required for-profit
corporations to pay out-of-pocket for the use of religiously-
objectionable contraceptives by employees).
Appellants further argue that religious organizations are
forced to be complicit in the provision of contraceptive care,
even with the accommodation. But even in the context of a
self-insured plan subject to ERISA, an objecting
organization’s only act—and the only act required by the
government—is opting out by form or notice. The objector
need not separately contract to provide or fund contraceptive
care. The accommodation, in fact, is designed to ensure such
organizations are not complicit and to minimize their
involvement. To the extent that appellants object to third
parties acting in ways contrary to an organization’s religious
beliefs, they have no recourse. See Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988)
(government action does not constitute a substantial burden,
even if the challenged action “would interfere significantly
with private persons’ ability to pursue spiritual fulfillment
according to their own religious beliefs,” if the government
action does not coerce the individuals to violate their
religious beliefs or deny them “the rights, benefits, and
privileges enjoyed by other citizens”). RFRA does not
entitle organizations to control their employees’
relationships with third parties that are willing and obligated
to provide contraceptive care.
Because appellants likely have failed to demonstrate a
substantial burden on religious exercise, we need not address
whether the government has shown a compelling interest or
whether it has adopted the least restrictive means of
advancing that interest. See Forest Serv., 535 F.3d at 1069.
Because the accommodation process likely does not violate
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 39
RFRA, the final rules are neither required by, nor authorized
under, RFRA. 5 The district court did not err in so
concluding.
3.
“Unexplained inconsistency” between an agency’s
actions is “a reason for holding an interpretation to be an
arbitrary and capricious change.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
A rule change complies with the APA if the agency
(1) displays “awareness that it is changing position,”
(2) shows that “the new policy is permissible under the
statute,” (3) “believes” the new policy is better, and
(4) provides “good reasons” for the new policy, which, if the
“new policy rests upon factual findings that contradict those
which underlay its prior policy,” must include “a reasoned
explanation . . . for disregarding facts and circumstances that
underlay or were engendered by the prior policy.” FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009)
(emphasis omitted); see also Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2124–26 (2016) (describing these
principles).
The district court held that the states are also likely to
prevail on their claim that the agencies failed to provide “a
reasoned explanation . . . for disregarding facts and
circumstances that underlay or were engendered by the prior
policy.” We need not reach this issue, having already
concluded that no statute likely authorized the agencies to
5
Little Sisters also points to 42 U.S.C. § 2000bb-4, but that
provision merely provides that exemptions that otherwise comply with
the Establishment Clause “shall not constitute a violation” of RFRA. It
does not address whether federal agencies have the authority
affirmatively to create exemptions in the first instance.
40 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
issue the final rules and that the rules were thus
impermissible. We will reach the full merits of this issue, if
necessary, upon review of the district court’s decision on the
permanent injunction
B.
A plaintiff seeking preliminary relief must “demonstrate
that irreparable injury is likely in the absence of an
injunction.” Winter, 555 U.S. at 22 (emphasis omitted). The
analysis focuses on irreparability, “irrespective of the
magnitude of the injury.” Simula, Inc. v. Autoliv, Inc.,
175 F.3d 716, 725 (9th Cir. 1999).
The district court concluded that the states are likely to
suffer irreparable harm absent an injunction. This decision
was not an abuse of discretion. As discussed in our prior
opinion, the plaintiff states will likely suffer economic harm
from the final rules, and such harm is irreparable because the
states will not be able to recover monetary damages flowing
from the final rules. California, 911 F.3d at 581. This harm
is not speculative; it is sufficiently concrete and supported
by the record. Id.
C.
Because the government is a party, we consider the
balance of equities and the public interest together. Drakes
Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014). The district court concluded that the balance of
equities tips sharply in favor of the plaintiff states and that
the public interest tip in favor of granting the preliminary
injunction. We have considered the district court’s analysis
carefully, and we hold there is no basis to conclude that its
decision was illogical, implausible, or without support in the
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 41
record. Finalizing that issue must await any appeal from the
district court’s permanent injunction.
VI.
We affirm the preliminary injunction, but we emphasize
that our review here is limited to abuse of discretion.
Because of the limited scope of our review and “because the
fully developed factual record may be materially different
from that initially before the district court,” our disposition
is only preliminary. Melendres v. Arpaio, 695 F.3d 990,
1003 (9th Cir. 2012) (quoting Sports Form, Inc. v. United
Press Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982)). At this
stage, “[m]ere disagreement with the district court’s
conclusions is not sufficient reason for us to reverse the
district court’s decision regarding a preliminary injunction.”
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
422 F.3d 782, 793 (9th Cir. 2005). The injunction only
preserves the status quo until the district court renders
judgment on the merits based on a fully developed record.
AFFIRMED.
42 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
KLEINFELD, Senior Circuit Judge, dissenting
I respectfully dissent. This case is moot, so we lack
jurisdiction to address the merits.
The casual reader may imagine that the dispute is about
provision of contraception and abortion services to women.
It is not. No woman sued for an injunction in this case, and
no affidavits have been submitted from any women
establishing any question in this case about whether they will
be deprived of reproductive services or harmed in any way
by the modification of the regulation.
This case is a claim by several states to prevent a
modification of a regulation from going into effect, claiming
that it will cost them money. Two federal statutes are at
issue, the Affordable Care Act 1 and the Religious Freedom
Restoration Act, 2 as well as the Trump Administration’s
modification of an Obama Administration regulation
implementing the Affordable Care Act. But the injunction
before us no longer matters, because a national injunction is
already in effect, and has been since January 14 of this year,
preventing the modification from going into effect. 3
Nothing we say or do in today’s decision has any practical
effect on the challenged regulation. We are racing to shut a
door that has already been shut. We are precluded, by the
case-or-controversy requirement of Article III, section 2,
1
42 U.S.C. §§ 18001 et seq.
2
42 U.S.C. §§ 2000bb et seq.
3
Pennsylvania v. Trump, 351 F. Supp. 3d 791, 835 (E.D. Pa.), aff'd
sub nom. Pennsylvania v. President United States, 930 F.3d 543 (3d Cir.
2019), as amended (July 18, 2019).
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 43
from opining on whether the door ought to be shut. We are
making the same mistake today that we made in Yniguez v.
Arizonans for Official English, 4 when in our zeal to correct
what we thought was a wrong, we issued an injunction on
behalf of an individual regarding her workplace. She no
longer worked there, so the Supreme Court promptly
corrected our error because the case was moot.
The case arises from the difficulty of working out the
relationship between the two statutes, the regulations under
the Affordable Care Act, and a sequence of Supreme Court
decisions bearing on how the tensions between the two
statutes ought to be relieved. The Affordable Care Act does
not say a word about contraceptive or sterilization services
for women. Congress delegated to the executive branch the
entire matter of “such additional preventive care and
screenings” as the executive agencies might choose to
provide for.
Executive branch agencies, within the Department of
Health and Human Services, created from this wide-open
congressional delegation what is called “the contraceptive
mandate.” Here is the statutory language:
A group health plan and a health insurance
issuer offering group or individual health
insurance coverage shall, at a minimum
provide coverage for and shall not impose
any cost sharing requirements for–
4
Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir.
1995), vacated sub nom. Arizonans for Official English v. Arizona,
520 U.S. 43 (1997).
44 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
...
with respect to women, such additional
preventive care and screenings . . . as
provided for in comprehensive guidelines
supported by the Health Resources and
Services Administration for purposes of this
paragraph. 5
In 2011, the agencies (not Congress) issued the guideline
applying the no-cost-sharing statutory provision to
contraceptive and sterilization services. And since then, the
public fervor and litigation has never stopped.
The agencies decided that an exemption ought to be
created for certain religious organizations. An interim rule
doing so was promulgated in 2011, after the agencies
“received considerable feedback” from the public, 6 then in
2012, after hundreds of thousands more comments, the
agencies modified the rule. The Supreme Court weighed in
on the ongoing controversy about the religious
accommodation exemption to the contraceptives mandate
three times, in Burwell v. Hobby Lobby, 7 Wheaton College
v. Burwell, 8 and Zubik v. Burwell, 9 in 2014 and 2016. None
of the decisions entirely resolved the tension between the
5
42 U.S.C. § 300gg-13(a)(4) (emphasis added).
6
76 Fed. Reg. 46,623.
7
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 735 (2014).
8
Wheaton Coll. v. Burwell, 573 U.S. 958 (2014).
9
Zubik v. Burwell, 136 S. Ct. 1557, 1559 (2016) (per curiam).
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 45
Religious Freedom Restoration Act and the Affordable Care
Act as extended by the contraceptive mandate regulations.
The Court instead gave the parties “an opportunity to arrive
at an approach going forward that accommodate 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.” 10
Thousands of comments kept coming to the agencies. After
Zubik, the agencies basically said they could not do what the
Supreme Court said to do: “no feasible approach . . . would
resolve the concerns of religious objectors, while still
ensuring that the affected women receive full and equal
health coverage.” 11 But in 2017, after an executive order
directing the agencies to try again, the agencies did so,
issuing the interim final rules at issue in our previous
decision 12 and the final rule at issue now.
The reason why the case before us is moot is that
operation of the new modification to the regulation has itself
already been enjoined. The District Court for the Eastern
District of Pennsylvania issued a nationwide injunction on
January 14 of this year, enjoining enforcement of the
10
Id. at 1560 (internal quotation marks omitted).
11
Dep’t of Labor, FAQs About Affordable Care Act
Implementation Part 36, at 4, available at https://www.dol.gov/
sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/
aca-part-36.pdf.
12
82 Fed. Reg. 47,792, 47,807–08 (Oct. 13, 2017); 82 Fed. Reg.
47,838, 47,849 (Oct. 13, 2017); California v. Azar, 911 F.3d 558 (9th
Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan
Residence v. California, 139 S. Ct. 2716 (2019).
46 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
regulation before us. 13 The Third Circuit affirmed that
nationwide injunction on July 12 of this year. 14 That
nationwide injunction means that the preliminary injunction
before us is entirely without effect. If we affirm, as the
majority does, nothing is stopped that the Pennsylvania
injunction has not already stopped. Were we to reverse, and
direct that the district court injunction be vacated, the rule
would still not go into effect, because of the Pennsylvania
injunction. Nothing the district court in our case did, or that
we do, matters. We are talking to the air, without practical
consequence. Whatever differences there may be in the
reasoning for our decision and the Third Circuit’s have no
material significance, because they do not change the
outcome at all; the new regulation cannot come into effect.
When an appeal becomes moot while pending, as ours
has, the court in which it is being litigated must dismiss it. 15
The Supreme Court has repeatedly held that “[t]o qualify as
a case for federal-court adjudication, ‘an actual controversy
must be extant at all stages of review, not merely at the time
the complaint is filed.’” 16 “It is true, of course, that
mootness can arise at any stage of litigation, . . . that federal
courts may not give opinions upon moot questions or
13
Pennsylvania v. Trump, 351 F. Supp. 3d 791 (E.D. Pa. 2019).
14
Pennsylvania v. President United States, 930 F.3d 543, 556 (3d
Cir. 2019), as amended (July 18, 2019).
15
Murphy v. Hunt, 455 U.S. 478, 481 (1982).
16
Arizonans for Official English, 520 U.S. at 67 (quoting Preiser v.
Newkirk, 422 U.S. 395, 401 (1975)).
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 47
abstract propositions.” 17 “Many cases announce the basic
rule that a case must remain alive throughout the course of
appellate review.” 18
The states will not spend a penny more with the district
court injunction before us now than they would spend
without it, because the new regulation that they claim will
cost them money cannot come into effect. Because of the
Pennsylvania nationwide injunction, we have no case or
controversy before us.
I disagree with the majority as well on standing and on
the merits. The standing issue before us now is new. It is
not the self-inflicted harm issue we resolved (incorrectly, as
I explained in my previous dissent 19), but the new question
of whether there is any concrete injury affording standing to
the states in light of the nationwide injunction. And on the
17
Calderon v. Moore, 518 U.S. 149, 150 (1996) (internal quotation
marks omitted).
18
13C C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 3533.10, pp. 555 (3d ed.); see also U.S. v. Sanchez-Gomez,
138 S. Ct. 1532, 1537 (2018), Kingdomware Technologies, Inc. v. U.S.,
136 S. Ct. 1969, 1975 (2016), Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 669 (2016), Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71
(2013), Decker v. Northwest Environmental Defense Center, 568 U.S.
597, 609 (2013), Chafin v. Chafin, 568 U.S. 165, 171–72 (2013), Federal
Election Com'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 461
(2007), Spencer v. Kemna, 523 U.S. 1, 7 (1998), Arizonans for Official
English, 520 U.S. at 67, Calderon, 518 U.S. at 150.
19
California v. Azar, 911 F.3d 558, 585 (9th Cir. 2018) (Kleinfeld,
J., dissenting), cert. denied sub nom. Little Sisters of the Poor Jeanne
Jugan Residence v. California, 139 S. Ct. 2716 (2019).
48 STATE OF CAL. V. LITTLE SISTERS OF THE POOR
merits, Chevron 20 deference ought to be applied, since
Congress delegated the material issue, what “additional
preventive care and screenings” for women ought to be
without cost sharing requirements, to the Executive Branch,
and that branch resolved it in a reasonable way not contrary
to the statute. But it does not matter which of us is correct.
Either view could prevail here, without any concrete
consequence. The regulation we address cannot come into
effect.
Of course I agree with the majority that the
circumstances that mooted the case in Arizonans for Official
English differ from the circumstances that moot the case
before us. I cited it because there, as here, in our zeal to
correct what we thought was wrong, we acted without
jurisdiction because the case had become moot. As for the
proposition that we ought to act under the exception for
“cases capable of repetition, yet evading review,” neither
branch of the exception applies. Most obviously, the
changes in the regulations, which are what matter, far from
“evading review,” have been reviewed to a fare-thee-well all
over the country. 21 As for the likelihood of repetition, so far
the hundreds of thousands of comments about the regulation,
and the continual changes in the regulation, suggest a
20
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
843–44 (1984) (“If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the agency to elucidate
a specific provision of the statute by regulation.”).
21
Pennsylvania v. President United States, 930 F.3d 543, 555 (3d
Cir. 2019), as amended (July 18, 2019); Massachusetts v. United States
Dep’t of Health & Human Servs., 923 F.3d 209, 228 (1st Cir. 2019);
California v. Azar, 911 F.3d 558, 566 (9th Cir. 2018), cert. denied sub
nom. Little Sisters of the Poor Jeanne Jugan Residence v. California,
139 S. Ct. 2716 (2019).
STATE OF CAL. V. LITTLE SISTERS OF THE POOR 49
likelihood that if the case comes before us again in one form
or another, it is fairly likely to be at least somewhat different.
Nor do I think that comity is well-served by our presuming
to review whether the Eastern District of Pennsylvania, as
affirmed by the Third Circuit, had jurisdiction to issue an
injunction covering the Ninth Circuit.
We need not and should not reach the merits of this
preliminary injunction. This case is resolved by mootness.