Eternal Word Television Network, Inc. et al v. U.S. Department of Health and Human Services et al

Filing 62

ORDER, Defendants' Motion to Dismiss (Doc. 34 ) is DENIED with respect to Counts XII, XIII, XIV, XVI, XVII, and is GRANTED with respect to all remaining claims; Defendants' Motion for Summary Judgment is DENIED with respect to Counts XII, XIII, XIV, XVI, and XVII; EWTN's 56(d) motion (Doc. 51 ) is DENIED AS MOOT. Signed by Judge Callie V. S. Granade on 6/17/2014. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ETERNAL WORLD TELEVISION
NETWORK, INC., et al.,
Plaintiffs,
v.
SYLVIA MATTHEWS BURWELL,
Secretary of the United States
Department of Health and Human
Services, et al.,
Defendants.

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Civil Action No. 13-0521-CG-C

ORDER
This matter is before the court on Defendants’1 Motion to Dismiss, or
in the Alternative, for Summary Judgment. (Doc. 34.) Also before the court is
the Rule 56(d) Motion (Doc. 51) filed by Plaintiff Eternal World Television
Network, Inc. (“EWTN”). For the reasons that follow, Defendants’ motion to
dismiss is due to be granted in part, Defendants’ motion for summary
judgment is due to be denied, and EWTN’s 56(d) motion is due to be denied as
moot.
I. BACKGROUND
This lawsuit concerns federal regulations that require most health
plans to cover contraceptive services that “include all Food and Drug

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Pursuant to Federal Rule of Civil Procedure 25(d), Sylvia M. Burwell has been
substituted in her official capacity for Kathleen Sebelius as Secretary of Health and
Human Services.

Administration (FDA)-approved contraceptive methods, sterilization
procedures, and patient education and counseling for women with
reproductive capacity, as prescribed by a health care provider.” 78 Fed. Reg.
39870-01, 39870. The court will refer to those services generally as
“contraceptives” and to the contraceptive-coverage requirement as “the
mandate.”
EWTN, joined by the State of Alabama, filed this lawsuit to challenge
the mandate on constitutional and statutory grounds. As an organization
whose “mission is to serve the orthodox belief and teaching of the [Roman
Catholic] Church” (Doc. 29-9 ¶ 4), EWTN opposes the use of contraceptives in
any form. That belief has led EWTN to take “great pains through the years to
ensure that its insurance plans do not cover, or in any way facilitate access
to, sterilization, contraception, or abortion.” (Doc. 29-9 ¶ 20.) As a result,
EWTN does not believe that it can comply with the mandate without
violating its religious beliefs.
But as the court noted in a previous order (Doc. 61), EWTN doesn’t
have to comply with the mandate. All it has to do is sign a form certifying its
opposition to the use of contraceptives and then deliver that form to its thirdparty administrator. Given that accommodation, the court’s earlier order held
that four counts of the complaint failed as a matter of law. That order did not,
however, express any opinion on the complaint’s thirteen remaining claims.
The matter comes before the court on Defendants’ motion seeking either

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dismissal of, or summary judgment on0, those thirteen claims.2
II. LEGAL STANDARDS
A.

Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint
states a plausible claim for relief [is] . . . a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id.
at 663 (alteration in original) (citation omitted). A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). To satisfy this standard, a complaint
must include “enough facts to raise a reasonable expectation that discovery
will reveal evidence” in support of its claims. Twombly, 550 U.S. at 556.
B.

Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment

shall be granted “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of
law.” The basic issue before the court on a motion for summary judgment is

EWTN’s Rule 56(d) motion (Doc. 51) is also before the court. But for reasons
discussed below, the court’s ruling on Defendants’ motion for summary
judgment renders EWTN’s Rule 56(d) motion moot.
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“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986).
On a motion for summary judgment, the movant bears the initial
burden of proving that no genuine issue of material fact exists. O’Ferrell v.
United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the
movant’s arguments, the court must view all evidence and resolve all doubts
in the light most favorable to the nonmovant. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir.1999). “If reasonable minds might differ on the
inferences arising from undisputed facts, then [the court] should deny
summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d
1532, 1535 (11th Cir.1989).
III. DISCUSSION
A.

Defendants’ Motion to Dismiss
The court turns first to Defendants’ motion to dismiss. According to

EWTN, the court must not rule on this motion because Defendants “cite to
and rely on a voluminous appendix, styled as an Administrative Record,”
which means EWTN “must be given an opportunity to conduct discovery”
under Federal Rule of Civil Procedure 12(d). (Doc. 51 (quotations omitted).)
That argument misstates the rule, however, and the materials Defendants
offer in support of their motion for summary judgment pose no impediment to

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the court’s ruling on their motion to dismiss so long as “matters outside of the
pleadings are . . . excluded by the court.” (Doc. 51.) And as the following
discussion will show, all of the complaint’s remaining constitutional claims
and some of its claims under the Administrative Procedure Act (the “APA”)
are due to be dismissed without reference to matters outside of the pleadings.
1.

Plaintiffs’ Constitutional Claims

Plaintiffs’ weakest constitutional claim is Count VI, which alleges that
the mandate unlawfully interferes with matters of internal religious
governance. Defendants cast that claim as a mere “restatement of EWTN’s
substantial burden theory” (Doc. 36 at 32), which theory the court rejected in
its earlier order. (Doc. 61 at 10 (“[T]he court finds that the mandate does not
impose a substantial burden on EWTN’s religious practice . . . .”).) EWTN did
not respond to that argument, nor did it even mention Count VI in its
opposition to Defendants’ motion to dismiss. As a result, Count VI is due to
be dismissed on the merits and as abandoned. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (noting that when a party
“fails to offer argument on an issue, that issue is abandoned” (citations
omitted)).
The claims of intentional religious suppression and discrimination in
Counts III, IV, VII, and VIII are also due to be dismissed. Unlike the claims
the court addressed in its earlier order, these intentional-discrimination
claims expressly allege that Defendants had illicit motives when they crafted

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the mandate and its accommodation scheme. But in light of the court’s earlier
order, which held that the mandate neither suppresses religious exercise nor
discriminates among religions, such allegations of illicit motives are
irrelevant—all that matters is that the mandate, as it was enacted, does not
violate the Constitution. See United States v. O’Brien, 391 U.S. 367, 383
(1968) (“[I]t is a familiar principle of constitutional law that this Court will
not strike down an otherwise constitutional statute on the basis of an alleged
illicit motive.”); Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12–
cv–03489–WSD, 2014 WL 1256373, at *26 (N.D. Ga. March 26, 2014) (noting
that the neutrality inquiry involved in Free Exercise cases “does not turn on
whether the drafters exhibited an invidious intent in enacting the law”
(quotations omitted)). As a result, Counts III, IV, VII, and VIII are due to be
dismissed.
Likewise, Plaintiffs’ claim in Count X that the mandate violates its
First Amendment right of free association is due to be dismissed. According
to that claim, the mandate “impairs [EWTN’s expressive association with its
employees] by introducing a required term—coverage for sterilization,
contraception, and abortifacients, both for employees and their dependents—
into the relationship.” (Doc. 50 at 19.) But that argument fails even if the
court assumes that the relationship between EWTN and its employees counts
as expressive association because the mandate does not prevent EWTN and
its employees from gathering together to express their disapproval of the use

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of contraceptives, nor does it interfere with EWTN’s right to make decisions
about whom it will associate with. See Rumsfeld v. Forum for Academic and
Institutional Rights, Inc. (FAIR), 547 U.S. 47, 69–70 (2006) (finding that a
statute requiring law schools to allow military recruiters on campus did not
violate the schools’ rights of expressive association because “[s]tudents and
faculty [were] free to associate to voice their disapproval of the military’s
message” and “nothing about the statute affect[ed] the composition of the
group by making group membership less desirable.”). As a result, Count X is
due to be dismissed.
Finally, there is Count XI, which alleges that the mandate violates
“EWTN’s right not to be subjected to a system of unbridled discretion when
engaging in speech or when engaging in religious exercise.” (Doc. 1 ¶ 261.)
But that allegation rests on Plaintiffs’ claims that the mandate discriminates
among religions, burdens the free exercise of religion, and violates EWTN’s
rights of free speech and free association. As discussed above and in the
court’s previous order, the mandate does none of those things. Thus, Count XI
is due to be dismissed.
2.

Plaintiffs’ APA Claims

The complaint’s first APA claim is Count XII, which accuses
Defendants of failing to follow the notice-and-comment procedure set out in 5
U.S.C. § 553. Specifically, Plaintiffs claim that the 2011 Amended Interim
Final Regulations, (the “2011 regulations”) 76 FR 46621-01, which adopted

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guidelines requiring health plans to cover all FDA-approved contraceptives,
should have been subject to public comment before they were promulgated.
Defendants don’t deny that the 2011 regulations were promulgated without
notice and comment. But according to Defendants, that does not matter
because the 2011 regulations have been updated several times with
amendments that were subject to appropriate notice and comment. That may
be true. But those amendments don’t cure any problems with the 2011
regulations because “post-promulgation comments . . . do not rectify the lack
of pre-promulgation notice and comment.” U.S. v. Dean, 604 F.3d 1275,
1281 (11th Cir. 2010). Otherwise, the APA’s notice-and-comment
requirements would be essentially meaningless and agencies “that wished to
dispense with pre-promulgation notice and comment could simply do so,
invite post-promulgation comment, and republish the regulation before a
reviewing court could act.” U.S. Steel Corp. v. U.S. E.P.A., 595 F.2d 207, 215
(5th Cir. 1979). As a result, Defendants’ only argument3 against Plaintiffs’
claim regarding improprieties with the 2011 regulations’ notice-and-comment
procedure is unpersuasive, so their motion to dismiss Count XII is due to be
denied.
The complaint’s next APA claim is Count XIII, which alleges that the

Defendants have not tried to argue that the 2011 Interim Final Rules were
exempt from the APA’s notice-and-comment requirements under “the ‘good
cause” exceptions contained at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3).’” U.S. v.
Dean, 604 F.3d 1275, 1278 (11th Cir. 2010). As a result, the court expresses
no opinion on that point.
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regulations that created the accommodation for religious nonprofits are
arbitrary and capricious because Defendants’ explanation for excluding
nonprofits like EWTN from the definition of the term religious employer
“runs counter to the evidence that was before them.” (Doc. 50 at 23
(quotations omitted).) Defendants do not offer any real argument on this
point; instead, they just assert that the regulations “are neither arbitrary nor
capricious” and that Plaintiffs’ claims to the contrary are “flatly contradicted
by the record.” (Doc. 36 at 26.) Those conclusory statements fall well short of
the burden that Defendants must meet to properly support a motion to
dismiss, so their motion to dismiss Count XIII is due to be denied.
In Count XIV, Plaintiffs allege that Defendants exceeded their
statutory authority when they enacted regulations “imposing duties and costs
on insurance companies, and setting up a scheme of administrative fee
reductions, which were not authorized by the [Affordable Care Act].” (Doc. 50
at 24.) Defendants’ only argument for dismissal of this claim is that EWTN
lacks standing to bring it. That may be the case. But it appears that the State
of Alabama does have standing on Count XIV, and Defendants make no effort
to argue otherwise. See Wyoming ex rel. Crank v. U.S., 539 F.3d 1236,
1242 (10th Cir. 2008) (finding that “[f]ederal regulatory action that preempts
state law creates a sufficient injury-in-fact” to support Article III standing).
Thus, the court need not decide whether EWTN has standing on that count
“because the presence of one party with standing is sufficient to satisfy

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Article III's case-or-controversy requirement.” FAIR, 547 U.S. at 53. As a
result, Defendants’ motion to dismiss Count XIV is due to be denied.
In Count XV, Plaintiffs claim that the mandate violates the Weldon
Amendment, an appropriations rider that withholds funding from
government agencies that “subject[ ] any institutional or individual health
care entity to discrimination on the basis that the health care entity does not
provide, pay for, provide coverage of, or refer for abortions.” Consolidated
Appropriations Act of 2012, Pub.L. No. 112–74, 125 Stat. 786, 1111. Plaintiffs
say that some of the emergency contraceptives required to be covered under
the mandate qualify as abortions within the meaning of the Weldon
Amendment. But even if that is true (a question which the court expresses no
opinion on at this time), Count XV still fails because the mandate does not
discriminate against organizations like EWTN. Thanks to the accommodation
that allows religious nonprofits to opt out of the mandate, EWTN is free to
continue refusing to cover the allegedly abortion-inducing drugs without
suffering any discrimination for making that choice. See Roman Catholic
Archbishop of Wash. v. Sebelius, Civil Action No. 13–1441 (ABJ), 2013 WL
6729515, at * 46 (D.D.C. Dec. 20, 2013) (“With the elimination of the penalty
for failing to provide coverage for contraceptive services, the accommodation
eliminates any potential discrimination against plaintiffs for exercising their
religious views and makes it irrelevant whether the word ‘abortion,’ as used
in the Weldon Amendment, includes emergency contraceptives or not.”). As a

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result, Count XV is due to be dismissed.
Finally, there is Count XVI, which alleges that the mandate violates a
provision of the Affordable Care Act that ensures that health plans will not
be required to provide coverage for abortion services. 42 U.S.C. §
18023(b)(1)(A)(i). Defendants say EWTN lacks prudential standing to assert
this claim. But again, they make no argument regarding the State’s standing
to do so, thus EWTN’s supposed lack of standing cannot provide a sufficient
basis for dismissal. See FAIR, 547 U.S. at 53. Defendants’ only other
argument against Count XVI is that none of the contraceptives required to be
covered under the mandate qualify as “abortion services” under the
Affordable Care Act. But EWTN says they do, and Defendants don’t provide a
convincing argument for holding otherwise at this juncture. As a result,
EWTN’s motion to dismiss is due to be denied with respect to Count XVI.
That leaves only Count XVII, captioned Declaratory Judgment, which
is not so much a claim as a prayer for a specific form of relief. Defendants
have not argued that such relief is inappropriate on the claims that survived
the motion to dismiss, so to the extent Defendants move to dismiss that
count, their motion is due to be denied.
B.

Defendants’ Motion for Summary Judgment
As discussed above, only Counts XII, XIII, XIV, XVI, and XVII

survived Defendants’ motion to dismiss, which means they are the only
counts on which the court need consider Defendants’ motion for summary

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judgment. But in arguing for summary judgment on those counts, Defendants
do not cite any evidence at all, nor do they make any legal arguments that
the court has not already rejected in the portion of this order dealing with
Defendants’ motion to dismiss. Because Defendants make no serious effort to
show that there exists no “genuine dispute as to any material fact” or that
they are “entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a), their
motion for summary judgment is due to be denied on Counts XII, XIII, XIV,
XVI, and XVII.
IV. CONCLUSION
It is therefore ORDERED as follows:
(1)

Defendants’ Motion to Dismiss (Doc. 34) is DENIED with respect
to Counts XII, XIII, XIV, XVI, and XVII, and is GRANTED with
respect to all remaining claims;

(2)

Defendants’ Motion for Summary Judgment (Doc. 34) is DENIED
with respect to Counts XII, XIII, XIV, XVI, and XVII;

(3)

EWTN’s 56(d) motion (Doc. 51) is DENIED AS MOOT.

DONE and ORDERED this 17th day of June, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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