Campbell v. Trump et al

Filing 22

ORDER. Defendants' Motion to Dismiss 9 is GRANTED. Plaintiff's Motion to Strike Defendants' Motion to Dismiss 11 is DENIED. Plaintiff's claims are dismissed without prejudice. Within 14 days of the entry of judgment, defendants may have their costs by filing a bill of costs with the Clerk of the Court. This case is dismissed in its entirety, by Judge Philip A. Brimmer on 9/11/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-02455-PAB-KHR
JESSICA CAMPBELL,
Plaintiff,
v.
DONALD TRUMP, President of the United States,
ERIC HARGAN, Acting Secretary of Health and Human Services,
R. ALEXANDER ACOSTA, Secretary of Labor, and
STEVEN MNUCHIN, Secretary of the Treasury,
Defendants.

ORDER

This matter is before the Court on Defendants’ Motion to Dismiss [Docket No. 9]
and Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss [Docket No. 11].
I. BACKGROUND1
Plaintiff Jessica Campbell is a female teacher who receives health insurance
through her employer, Colorado Academy. Docket No. 1 at 3, ¶¶ 7-8. She uses
hormonal medications for birth control and for non-contraceptive medical purposes,
including the prevention of ovarian cysts. Id., ¶¶ 8, 10.
Plaintiff challenges two interim final rules (the “Rules”) issued by the
Departments of the Treasury, Labor, and Health and Human Services on October 6,

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The following facts are drawn from plaintiff’s complaint [Docket No. 1] and are
taken as true for the purposes of this order. See Alvarado v. KOB-TV, LLC, 493 F.3d
1210, 1215 (10th Cir. 2007).

2017: the Religious Exemptions and Accommodations for Coverage of Certain
Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47792, and the Moral
Exemptions and Accommodations for Coverage of Certain Preventive Services Under
the Affordable Care Act, 82 Fed. Reg. 47838. Docket No. 1 at 1-2, ¶ 1. As relevant
here, these Rules allow employers to seek exemptions based on religious and moral
objections from requirements that the employers cover certain women’s healthcare
services, including hormonal birth control.
On October 13, 2017, plaintiff filed her complaint, seeking a declaration that the
Rules violate her rights under the Constitution and were implemented in violation of the
Administrative Procedures Act (“APA”), 5 U.S.C. § 551, et seq. Docket No. 1 at 11, ¶ 24. She also seeks an injunction barring enforcement of the Rules. Id., ¶ 5. On
December 18, 2017, defendants filed their motion to dismiss, arguing that the Court
should dismiss this case because plaintiff lacks Article III standing. Docket No. 9 at 1.
On January 7, 2018, plaintiff moved to strike defendants’ motion on the ground that it
was untimely. Docket No. 11 at 1.
II. MOTION TO STRIKE
Plaintiff’s motion to strike is frivolous. It is well established that a “litigant
generally may raise a court's lack of subject-matter jurisdiction at any time.” Kontrick v.
Ryan, 540 U.S. 443, 455 (2004) (citing Capron v. Van Noorden, 6 U.S. 126, 127 (1804);
Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884); Fed. Rule Civ. Proc.
12(h)(3)); see also City of Albuquerque v. Soto Enterprises, Inc. , 864 F.3d 1089, 1093
(10th Cir. 2017) (“[B]ecause parties cannot waive subject-matter jurisdiction, they can

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challenge it ‘at any time prior to final judgment.’” (quoting Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 571 (2004))). Thus, defendants’ challenge to the Court’s
jurisdiction on the basis that plaintiff lacks standing is not untimely and the Court will
deny plaintiff’s motion.
III. STANDING
Plaintiff bears the burden of establishing standing. Colorado Outfitters Ass’n v.
Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016) (citing Raines v. Byrd, 521 U.S. 811,
818 (1997)). To carry this burden, plaintiff must show (1) an injury in fact, (2) a
sufficient causal connection between the injury and the conduct complained of, and (3)
a likelihood that the injury will be redressed by a favorable decision. Id. at 543. In order
to show an injury in fact, plaintiff must show that she has suffered an “invasion of a
legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (citations and internal quotation marks omitted); see also Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009).
Defendants argue that plaintiff cannot show an injury in fact because her
allegations do not establish a likelihood of imminent injury related to the Rules. Docket
No. 9 at 8-12. In particular, defendants argue that the most that can be inferred from
allegations in plaintiff’s complaint is a “speculative implication that her employer might,
at an unknown point in the future, take advantage of the new exemptions” in the Rules.
Id. at 8. Defendants point out that plaintiff makes no allegations that her employer
actually holds the sort of beliefs that would support an exemption under the Rules from

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the duty to cover contraceptives and that her employer has publicly stated that it does
not anticipate changes to benefits based on the Rules. Id. at 8-9 (citing Kirk Mitchell,
Denver Teacher Sues Trump Claiming Contraception Rules Violate Women’s Rights,
Denver Post (Oct. 13, 2017), Docket No. 9-2 at 2-4).
In response, plaintiff argues that she has suffered “procedural injury” under the
APA. Docket No. 12 at 7, 9. This contention is irrelevant to whether plaintiff has Article
III standing. See Lujan, 504 U.S. at 572. Even if plaintiff can show that a procedural
requirement of the APA was violated, she must show that “disregard of [the
requirement] could impair a separate concrete interest of [hers]” to establish Article III
standing. Id.
Alternatively, plaintiff analogizes her circumstances to two decisions where the
courts found that similar plaintiffs had standing: Pennsylvania v. Trump, 281 F. Supp.
3d 553 (E.D. Pa. 2017), and California v. Health & Human Servs., 281 F. Supp. 3d 806,
822 (N.D. Cal. 2017). Docket No. 12 at 11. In each of these cases the plaintiffs
showed that their direct pecuniary interests were likely to be affected by the Rules.
Pennsylvania, 281 F. Supp. 3d at 567 (“The [Rules] will likely inflict a direct injury upon
the Commonwealth by imposing substantial financial burdens on State coffers.”);
California, 281 F. Supp. 3d at 822 (“Rather, [the plaintif fs] have shown that the [Rules]
will impact their fiscs in a manner that corresponds with the [Rules’] impact on their
citizens’ access to contraceptive care.”). By contrast, plaintiff does not point to any
factual allegations in her complaint that would support an inference that her health
insurance coverage for contraception is likely to change in any way based on the Rules.

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See Docket No. 12 at 7. Plaintiff alleges that she receives health insurance through her
employer and needs contraceptives for medical reasons. She relies on her health
insurance for its coverage of such treatment. Plaintiff alleges that the Rules “fail to
ensure . . . access to required coverage” and that she is “extremely vulnerable to
substantial health, safety, economic, and social harms from loss of access to essential
contraceptive care and coverage.” Docket No. 1 at 6-7, ¶ 27. Plaintiff argues that,
because of the Rules, she must “go to bed each night knowing the next day her
employer could withdraw necessary medical coverage.” Docket No. 12 at 6.
Plaintiff’s “fears of hypothetical future harm that is not certainly impending” are
insufficient to create Article III standing. Clapper v. Amnesty Int’l USA, 568 U.S. 398,
416 (2013). There are no factual allegations in the complaint that support an inference
that injury to plaintiff, economic or otherwise, is “actual and imminent” as required to
constitute an injury in fact under Article III standing principles. Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009) (citing Friends of Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 180-181 (2000)). As a result, the Court f inds that
she does not have standing to challenge the Rules. Accordingly, the Court lacks
subject matter jurisdiction and must dismiss plaintiff’s claims. Colorado Outfitters Ass’n,
823 F.3d at 554. 2
IV. CONCLUSION
Therefore, it is

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Plaintiff has not requested leave to amend and does not indicate that there are
additional facts that she could have pleaded that would support standing. See Docket
No. 12.
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ORDERED that Defendants’ Motion to Dismiss [Docket No. 9] is GRANTED. It
is further
ORDERED that Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss
[Docket No. 11] is DENIED.
ORDERED that, pursuant to Fed. R. Civ. P. 12(h)(3), plaintiff’s claims are
dismissed without prejudice. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.

DATED September 11, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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