ELLEN SEGAL HUVELLE, District Judge.
Wheaton College, a Christian liberal arts college located in Wheaton, Illinois, has sued, claiming that regulations defendants issued pursuant to the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (March 23, 2010), violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. (Complaint, July 18, 2012 [Dkt. No. 1] ("Compl.") ¶¶ 1-2, 6-8.) The regulations require covered employers to offer group health insurance plans that provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing. Wheaton argues that it cannot offer health plans that cover emergency contraceptives, namely Plan B (levonorgestrel, or the "morning-after pill") and Ella (ulipristal, or the "week-after pill"), consistent with its religious beliefs.
Wheaton moved for a preliminary injunction on August 1, 2012. (Motion for Preliminary Injunction, August 1, 2012 [Dkt. No. 4] ("Pl. Mot.").) On August 10, defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing that Wheaton lacks standing and that its claims are not ripe. (Defendants' Motion to Dismiss, August 10, 2012 [Dkt. No. 17] ("Def. Mot.").) Wheaton opposed defendants' motion (August 16, 2012 [Dkt. No. 18] ("Pl. Opp'n")), defendants filed a reply in further support thereof (August 20, 2012 [Dkt. No. 19] ("Def. Reply")), and the Court heard oral argument. (8/23 Tr.) Based on this record, the Court concludes that, in light of concrete steps defendants are taking to address Wheaton's concerns, including their commitment not to enforce the challenged regulations against Wheaton while accommodations are being negotiated, Wheaton has not alleged a concrete and imminent injury and that its claims are not fit for judicial review. For the reasons stated, the Court will grant defendants' motion to dismiss.
This action is one of twenty-six lawsuits challenging the Affordable Care Act's preventive services regulations with regard to their requirements involving contraception.
The guidelines subsequently adopted by HRSA require insurance plans to cover, inter alia, all "contraceptive methods," including Plan B and Ella, "sterilization procedures, and patient education and counseling for all women with reproductive capacity" that are approved by the FDA. Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited August 24, 2012); see Belmont Abbey College, 878 F.Supp.2d at 28-30, 2012 WL 2914417, at *1-2 (citing FDA Birth Control Guide, http://www.fda.gov/ forconsumers/byaudience/forwomen/ucm 118465.htm (last visited August 24, 2012)). Defendants promulgated an interim final rule, effective August 1, 2011, "requiring `group health plan[s] and ... health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost sharing with respect to' the preventive services for women included in HRSA's guidelines." Id. at 30, at *2 (alterations in the original) (quoting Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 Fed.Reg. 46,621, 46,622-23 (August 3, 2011) (interim final rules with request for comments); citing 45 C.F.R. § 147.130).
Responding to comments received about a prior interim rule, defendants acknowledged "the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required," and granted HRSA the authority "to exempt certain religious employers from [its] Guidelines where contraceptive services are concerned." 76 Fed.Reg. at 46,623. The interim final rule provided a definition for "religious employers" that included houses of worship but did not include institutions like Wheaton College.
Defendants requested comments on the interim final rule and specifically on its definition of "religious employer." 76 Fed. Reg. at 46,623. In response to the more than 200,000 comments defendants received, defendants published final regulations adopting the definition of "religious employer" in the interim final rule and simultaneously establishing a temporary enforcement safe harbor for non-profit employers that did not meet that definition's criteria but that professed religious objections to providing coverage for contraceptives. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 77 Fed.Reg. 8,725, 8,725-8,729 (February 15, 2012) (final rules). Defendants stated that "[b]efore the end of the temporary enforcement safe harbor," they would "work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage." Id. at 8,728.
HHS, Guidance on the Temporary Enforcement Safe Harbor, February 10, 2012 ("Feb. 2012 Guidance") at 3 (footnote omitted), available at http://cciio.cms.gov/ resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf. In a revised guidance, defendants "clarif[ied] ...
HHS, Guidance on the Temporary Enforcement Safe Harbor, August 15, 2012 ("Aug. 2012 Guidance") at 1 n. 1, available at http://cciio.cms.gov/resources/files/prev-services-guidance08152012.pdf; see id. at 3-4 (stating revised criteria for the temporary enforcement safe harbor in accordance with the above).
The "safe harbor provides an additional year for these group health plans and group health insurance issuers (i.e., until the first plan year beginning on or after August 1, 2013)" to comply with HRSA guidelines regarding contraceptive coverage. Id. at 3. It also provides time for defendants, as they announced in a March 2012 Advanced Notice of Proposed Rulemaking ("ANPRM"), "to expeditiously develop and propose changes to the final regulations" regarding preventive services "that would meet two goals — accommodating non-exempt, non-profit religious organizations' religious objections to covering contraceptive services and assuring that
Wheaton College brought suit, claiming that the regulations as currently fashioned violate the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (Counts I, XIII), the First Amendment (Counts II-X, XIII), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (Counts XI-XIV).
Defendants have moved to dismiss on standing and ripeness grounds. Because defendants' claims go to the Court's jurisdiction, the Court must consider them before addressing Wheaton's motion for a preliminary injunction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Wheaton bears the burden of establishing that this Court has jurisdiction over its claims. Id. at 104, 118 S.Ct. 1003.
NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77, 81 (D.C.Cir.2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
At issue here is whether Wheaton College has alleged an injury in fact. In Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), "the Supreme Court summarized its case law and flatly stated: `[W]e have said many times before and reiterate today: Allegations of possible future injury do not satisfy the requirements of Art[icle] III. A threatened injury must be certainly impending to constitute injury in fact.'" Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1294 (D.C.Cir.2007) (alterations in the original) (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. 1717 (collecting cases)).
Wheaton concedes that it does not face an impending government enforcement action. It is undisputed, given the August 2012 Guidance, that Wheaton qualifies for the temporary enforcement safe harbor. (Def. Mot. at 12 (citing the declaration of HHS official Michael Hash ¶ 5); Pl. Opp'n at 10.) Furthermore, Wheaton has indicated that it will self-certify its eligibility and take advantage of the safe harbor pursuant to the August 2012 Guidance's requirements.
Wheaton protests that it still alleges a "`certainly impending'" injury, Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130 (some internal quotation marks omitted) (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. 1717), because it may be subject to ERISA lawsuits attempting enforcement of the preventive services regulations. (Pl. Opp'n at 11.) However, even crediting Wheaton's assertion that it is "completely exposed" to such actions (id. (citing 29 U.S.C. §§ 1132(a), 1185d(a)(1))), it is well-established that the theoretical possibility of harm from future litigation does not, without more, confer standing. "`Allegations of injury based on predictions regarding future legal proceedings are ...
Furthermore, Wheaton has not demonstrated that there is anything "actual or imminent," Whitmore, 495 U.S. at 155, 110 S.Ct. 1717, about the specter of a "participant [in] or beneficiary of" one of Wheaton's health plans suing under ERISA, 29 U.S.C. § 1132(a), to challenge the fact that the plan does not cover Plan B or Ella. To the contrary, the allegations in Wheaton's complaint support the conclusion that this is a "`conjectural' or `hypothetical'" possibility. Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (quoting Lyons, 461 U.S. at 101-02, 103 S.Ct. 1660). (See Compl. ¶¶ 20-29, 37-38.) "Each year, all Wheaton College students and full-time employees commit themselves to" the "Christian community of living, learning, and serving that Wheaton College aspires to be ... by signing Wheaton College's Community Covenant." (Id. ¶¶ 25-26.) That Covenant "recognizes that Scripture condemns the taking of innocent life." (Id. ¶ 28.) Wheaton alleges that it "believes and teaches that abortion ends a human life and is a sin" (id. ¶ 29); that its "religious beliefs prohibit it from deliberately providing insurance coverage for drugs, procedures, or services inconsistent with its faith, in particular abortion-inducing drugs" (id. ¶ 37); and that these include, in Wheaton's view, Plan B and Ella. (Id. ¶ 90.) Therefore, the possibility that Wheaton College health plan participants, all of whom have signed the Community Covenant, or beneficiaries, who are likely family members of Wheaton employees, would sue Wheaton to secure free access to Plan B and Ella is remote at best.
In arguing to the contrary, Wheaton relies heavily, if not exclusively, on Chamber of Commerce v. FEC, 69 F.3d 600 (D.C.Cir.1995). Wheaton's reliance is misplaced. In Chamber of Commerce, the Circuit's conclusion that plaintiffs had standing to challenge a Federal Election Commission regulation on political speech was premised on its belief that a government enforcement action, even if not imminent, was nonetheless likely. While the
Here, however, the government's commitment not to act against employers that qualify for the temporary enforcement safe harbor was the product of sustained agency and public deliberation, see 77 Fed.Reg. at 8,726-27, and it represents a final decision, see 77 Fed.Reg. at 16,502-03, that has been reiterated twice. See Feb. 2012 Guidance; Aug. 2012 Guidance. Wheaton has not even argued that the Court should question the government's promise not to enforce the preventive services regulations against it while defendants work with Wheaton and others to revise them. This alone serves to distinguish Chamber of Commerce, where there was no formal commitment not to prosecute and an enforcement action was likely enough that even counsel for the government "agreed at oral argument — as he really had to — that he would not advise [plaintiffs] to ignore the rule" that they were challenging. 69 F.3d at 603.
Moreover, the Chamber of Commerce plaintiffs alleged that in the prior election cycle they responded to the issuance of the FEC regulation by ceasing the political activity that the regulation affected. Id. at 602, 603. They thus substantiated their allegations regarding the chilling effect of the challenged regulation on their constitutionally protected speech by putting forward a credible "`claim of specific present objective harm.'" Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (quoting Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)).
Therefore, the fact that the Circuit in Chamber of Commerce also cited plaintiffs' First Amendment claims and the potential that plaintiffs would be "subject to [private] litigation challenging the legality of their actions," 69 F.3d at 603-04, provides scant support for Wheaton's arguments. Wheaton is unquestionably exempt from government enforcement actions during the safe harbor and it has indicated, in opposing defendants' motion to dismiss, that it will not compromise its beliefs in response to the preventive services regulations during that period. (Pl. Opp'n at 10-11.) As noted above (see supra n. 5), Wheaton's counsel retreated from this unequivocal statement of its future plans at oral argument, and described the "coercive" effect of the government's preventive services regulations on Wheaton's decision as the source of Wheaton's present injury. (8/23 Tr. at 12; see id. at 8-13, 18, 32-33, 39.) However, "allegations of chilling injury are not sufficient basis for standing to challenge a government action, at least when the chill is `subjective' and not substantiated by evidence that the government action has a present and concrete effect." Salvation Army, 919 F.2d at 193 (emphasis added) (quoting Laird, 408 U.S. at 13, 92 S.Ct. 2318) (collecting cases). Indeed, the Supreme Court has emphasized that while its precedent
Laird, 408 U.S. at 13, 92 S.Ct. 2318 (quoting Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937)). Wheaton has "not [met] this test; [its] claim, simply stated, is that [it] disagree[s] with the judgments made by the Executive Branch with respect to" what preventive services health insurance plans must cover, "and that the very existence" of these regulations (notwithstanding the fact that they are presently in flux and that the government will not enforce them against Wheaton while they are being amended to address Wheaton's concerns) "produces a constitutionally impermissible chilling effect upon the exercise of [its] First Amendment Rights." Id. But "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; `the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.'" Id. at 13-14, 92 S.Ct. 2318 (quoting United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947)).
Wheaton has not demonstrated that it has standing.
In addition, Wheaton's claims are not ripe.
Wheaton argues that its claims are fit for judicial decision because the preventive services regulations are binding legal rules that constrain Wheaton's choices with regard to the health insurance purchasing decisions. (Pl. Opp'n at 21-22, 26-27.) Having rejected a similar standing argument, the Court will reject Wheaton's ripeness argument as well. The two doctrines are closely related. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Belmont Abbey College, 878 F.Supp.2d at 37-38, 2012 WL 2914417, at *10. Yet, they are motivated by somewhat different concerns. The standing doctrine reflects the constitutional imperative that "federal courts sit `solely[] to decide on the rights of individuals,'" Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quoting Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60 (1803)), "and must `refrai[n] from passing upon the constitutionality of an act ... unless obliged to do so in the proper performance of [the] judicial function, when the question is raised by a
Ripeness, on the other hand, is also concerned with the separation of powers, particularly where agency review is concerned. In addition to preserving the proper role of courts under Article III, the ripeness doctrine "`prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also ... protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507). The fitness requirement of the ripeness inquiry thus "protect[s] `the agency's interest in crystallizing its policy before that policy is subjected to judicial review and the court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.'" Am. Petroleum Inst., 683 F.3d at 387 (quoting Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C.Cir. 1999)). As such, the "fitness of an issue" depends in large part on "`whether the agency's action is sufficiently final.'" Id. (quoting Atl. States Legal Found. v. EPA, 325 F.3d 281, 284 (D.C.Cir.2003)).
Id. (emphasis added) (quoting Pub. Citizen Health Research Grp. v. FDA, 740 F.2d 21, 31 (D.C.Cir.1984)).
Because they are in the process of being amended, see 77 Fed.Reg. at 16,501 (ANPRM), the preventive services regulations are by definition a tentative agency position "`in which the agency expressly reserves the possibility that its opinion might change.'" Birdman v. Office of the Governor, 677 F.3d 167, 173 (3d Cir.2012) (internal quotation marks and alterations omitted) (quoting Natural Res. Defense Council v. FAA, 292 F.3d 875, 883 (D.C.Cir.2002)).
Moreover, the regulations Wheaton challenges are being amended precisely in order to accommodate Wheaton's concerns. See AT & T Corp. v. FCC, 369 F.3d 554, 563 (D.C.Cir.2004) (per curiam) (dismissing challenge as unripe because of "ongoing rulemaking proceedings ... address[ing] the issues raised by [petitioner]"). Wheaton only tilts at windmills when it protests that it will not be satisfied with whatever amendments defendants ultimately make. Indeed, Wheaton's argument that various hypothetical accommodations are insufficient (see Pl. Opp'n at 16-17, 19, 23-26) only serves to underscore why this Court ought not address the merits of Wheaton's claims until the preventive services regulations "have taken on fixed and final shape so that [the Court] can see what legal issues it is deciding." Pub. Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291 (1952).
Nor has Wheaton demonstrated a hardship from any delay that would override its claims' lack of fitness for judicial review. See Am. Petroleum Inst., 683 F.3d at 389 ("Considerations of hardship that might result from delaying review `will rarely overcome the finality and fitness problems inherent in attempts to review tentative positions.'" (quoting Pub. Citizen Health Research Grp., 740 F.2d at 31)). "Costs stemming from [Wheaton's] desire to prepare for contingencies are not sufficient... to constitute a hardship for purposes of the ripeness inquiry — particularly when [defendants'] promises and actions suggest the situation [Wheaton] fears may not occur." Belmont Abbey College, 878 F.Supp.2d at 41, 2012 WL 2914417, at *14 (collecting cases). And "[t]he planning insecurity [Wheaton] advances" with regard to what the preventive services regulations may (or may not) require of it does not suffice to show hardship. Tenn. Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C.Cir.1984).
"In sum, the application of" the preventive services regulations to Wheaton "remains
Id. (citations omitted).
Defendants' motion to dismiss on jurisdictional grounds will be granted. A separate Order accompanies this Memorandum Opinion.
Furthermore, although the burden lies with the party asserting mootness, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), the fact that a case becomes moot when plaintiff loses standing, McNair, 672 F.3d at 227 n. 17, does not mean that it is somehow defendant's burden to show that plaintiff no longer faces imminent injury. To the contrary, "[t]he party asserting federal jurisdiction bears the burden of establishing [that it has standing] at every stage of the litigation, as it does for `any other essential element of the case.'" Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir. 2010) (quoting Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)).
Belmont Abbey College, 878 F.Supp.2d at 37, 2012 WL 2914417, at *9 (some internal quotation marks and citations omitted).
