Archdiocese of St. Louis et al v. Sebelius et al

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion to Dismiss 16 is GRANTED. A separate Order of Dismissal accompanies this Memorandum and Order. Signed by District Judge John A. Ross on 1/29/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ARCHDIOCESE OF ST. LOUIS, et al.,
Plaintiffs,
v.
KATHLEEN SEBELIUS, et al.,
Defendants.

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No. 4:12-CV-00924-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss. [ECF No. 16] The
motion is fully briefed and ready for disposition. With leave of Court, the American Center for
Law & Justice and Seventy-Nine Members of the United States Congress have filed an amici
curiae brief in support of Plaintiffs regarding their opposition to Defendants’ motion to dismiss.
(Doc. No. 25) Plaintiffs (Doc. No. 34) and Defendants (Doc. Nos. 30, 31, 32, 36, 38, 39, 40) have
filed Notices of Supplemental Authority related to the pending motion to dismiss. For the
following reasons, the motion will be granted.
Background
This action is one of many cases filed throughout the United States raising constitutional
challenges to the Patient Protection and Affordable Care Act (“ACA”).1 The relevant statutory and
regulatory background of the ACA has been set out in detail in several recent opinions. See, e.g.,

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Patient Protection and Affordable Care Act, Pub.L. No. 111–148, 124 Stat. 119 (Mar.
23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub.L. No.
111–152, 124 Stat. 1029 (Mar. 30, 2010).

Colorado Christian University v. Sebelius, No. 1:11-cv-03350-CMA-BNB, 2013 WL 93188, at *13 (D. Colo. January 7, 2013); Catholic Diocese of Biloxi v. Sebelius, No. 1:12-cv-00158-HSORHW, 2012 WL 6831407, at *3-5 (S.D. Miss. Dec. 20, 2012).
In summary, the ACA and implementing regulations require all group health plans to
provide women with “preventive care and screenings” at no charge to the patient (“Women’s
Health Amendment”). See 42 U.S.C. § 300gg-13(a). The scope of “preventive care” is defined to
include all “contraceptive methods,” “sterilization procedures, and patient education and counseling
for women with reproductive capacity,” that are approved by the FDA. See Wheaton College v.
Sebelius, 2012 WL 3637162, at *2 (D.D.C. Aug. 24, 2012) (citing Women’s Preventive Services:
Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited
August 24, 2012)). The preventive care coverage requirement does not apply to grandfathered2
health plans, and certain “religious employers”3 are exempt from any requirement to provide
coverage for contraceptive services.

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The preventive services coverage regulations do not apply to plans that existed on March
23, 2010 and that have not undergone any of a defined set of changes since that date. 26 C.F.R. §
54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
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“Religious employers” are exempt from the requirement to provide coverage for
contraceptive services provided they meet the following criteria:
•
•
•
•

The inculcation of religious values is the purpose of the organization;
The organization primarily employs persons who share the religious tenets of the
organization;
The organization primarily serves persons who share the religious tenets of the
organization; and
The organization is a nonprofit organization as described in section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

45 C.F.R. § 147.130(a)(1)(iv)(B).
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Defendants have established a one-year enforcement “safe harbor” for certain non-profit
employers with religious objections to covering contraceptive services. Id. (citing 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)). During the safe harbor, which remains in effect
until August 1, 2013, Defendants will not take any enforcement action against any employer or
group health care plan with respect to a non-grandfathered plan that fails to cover some or all of the
recommended contraceptive services.
In March 2012, Defendants published an Advance Notice of Proposed Rulemaking
(“ANPRM”) announcing their intention to propose amendments that “would establish alternative
ways to fulfill the requirements of the ACA while still protecting religious organizations from
having to contract, arrange, or pay for contraceptive services.” 77 Fed.Reg. 16,501, 16,503 (March
21, 2012). The ANPRM further states Defendants’ intention to finalize these amendments so that
they are effective by the end of the temporary enforcement safe harbor. Id. at 16,503.
Plaintiffs, the Archdiocese of St. Louis (“Archdiocese”) and Catholic Charities of St. Louis
(“Catholic Charities”), describe themselves as “Catholic religious entities that provide a wide range
of spiritual, educational, and social services to residents in the greater St. Louis community.”
(Compl., Doc. No. 1, ¶ 2)
Defendants are the U. S. Department of Health and Human Services (“HHS”), Kathleen
Sebelius in her official capacity as Secretary of HHS, the U.S. Department of Labor, Hilda Solis in
her capacity as Secretary of the U.S. Department of Labor, the U.S. Department of Treasury, and
Timothy Geithner in his official capacity as Secretary of the Treasury. (Compl., ¶¶ 12-17)
Collectively, Defendants are the departments and officials responsible for adopting, administering,
and enforcing the regulations Plaintiffs are challenging.

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Plaintiffs contend the regulations promulgated as part of the ACA would require many
Catholic and other religious organizations to provide health plans to their employees that include
and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception in violation
of their sincerely held religious beliefs. (Id., ¶¶ 4-5)
The Archdiocese operates a self-insured health plan. That is, the Archdiocese does not
contract with a separate insurance company that provides health care coverage to its employees.
Instead, the Archdiocese functions as the insurance company underwriting its employees’ medical
costs. (Id., ¶ 25) Catholic Charities offers coverage through the Archdiocese’s plan. (Id.) Consistent
with Church teachings, the Archdiocese’s plan does not cover abortion-inducing drugs,
sterilization, or contraceptives. In limited circumstances, the plan administrator can override the
exclusion of certain drugs commonly used as contraceptives if a physician certifies that they were
prescribed with the intent of treating certain medical conditions, not with the intent to prevent
pregnancy. (Id., ¶ 26)
Plaintiffs assert the Archdiocese’s self-insured health plan does not meet the ACA’s
definition of a “grandfathered” plan because, since March 23, 2010, the Archdiocese has terminated
one of its two plan options, replacing it with an option offering a reduced level of benefits at a
reduced premium. (Id., ¶27) Further, the Archdiocese has not included and does not include a
statement in plan materials provided to participants or beneficiaries informing them that it believes
its plan is a grandfathered health plan within the meaning of section 1251 of the ACA. (Id.) See 26
C.F.R. § 54.9815-1251T(a)(2)(i).
Plaintiffs acknowledge that certain religious employers are exempted from the preventive
services requirement; however, because they employ and serve persons without regard to religious

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affiliation, Plaintiffs assert it is unclear whether they will in fact qualify as a “religious employer”
under the exemption. (Complaint, ¶¶ 6-7, 38-39, 51)
Plaintiffs seek a declaratory judgment that the challenged regulations violate their rights
under the First Amendment and the Religious Freedom Restoration Act (“RFRA”)4, and were
promulgated in violation of the Administrative Procedure Act (“APA”)5. Plaintiffs also seek an
injunction prohibiting Defendants from enforcing the Mandate against them, and an order vacating
the Mandate as to Plaintiffs.
Defendants move to dismiss the complaint for lack of subject matter jurisdiction under Rule
12 (b)(1), Fed.R.Civ.P., specifically on the issues of standing and ripeness.
Legal Standard
Under Federal Rule of Civil Procedure 12(b)(1), a party is permitted to challenge a federal
court's jurisdiction over the subject matter of the complaint. When the Court's subject matter
jurisdiction is challenged, at issue is the Court's “very power to hear the case.” Rundel v. Bob
Evans Restaurant Inc., 2010 WL 597366, at *1 (E.D.Mo. Feb. 17, 2010) (quoting Osborn v. United
States, 918 F.2d 724, 730 (8th Cir.1990)). The party invoking the jurisdiction of the federal court
has the burden of establishing that the court has the requisite subject matter jurisdiction to grant the
requested relief. Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
For an action to be dismissed under Rule 12(b)(1), the complaint must either be successfully
challenged on the factual truthfulness of its assertions, or successfully challenged on its face. See
Osborn, 918 F.2d at 729. The identification of whether a challenge is facial or factual is a necessary

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42 U.S.C. § 2000bb et seq.

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5 U.S.C. § 702
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step, and this identification establishes how a court should proceed when resolving a motion to
dismiss under Rule 12(b)(1). When subject matter jurisdiction is challenged based on the factual
truthfulness of the assertions, a court is permitted to consider “matters outside the pleadings,” such
as testimony and affidavits. Id. at 729 n. 2 (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507,
511 (5th Cir.1980)); see also Smith v. U.S. Postal Serv. Inspector Gen ., 2007 WL 537712, at *2 n.
3 (E.D.Ark. Feb. 16, 2007). When a court's subject matter jurisdiction is challenged in a facial
attack, however, the Court “restricts itself to the face of the pleadings, and the non-moving party
receives the same protections as it would defending against a motion brought under Rule 12(b)(6).”
Kinder v. Geithner, 2011 WL 1576721, at *1 (E.D.Mo. April 26, 2011) (quoting Osborn, 918 F.2d
at 729 n. 6)).
Discussion
Subject Matter Jurisdiction
“Federal jurisdiction is limited to the power authorized by Article III of the Constitution and
the statutes enacted by Congress pursuant thereto.” Kinder, 2011 WL 1576721, at *3 (citing
Zanders v. Swanson, 573 F.3d 591, 593 (8th Cir.2009)). “The limitations imposed by Article III are
usually referred to as the ‘case or controversy’ requirement.” Zanders, 573 F.3d at 593 (quoting
Schanou v. Lancaster County Sch. Dist. No. 160, 62 F.3d 1040, 1042 (8th Cir.1995)). A case or
controversy requires a claim that is ripe and a plaintiff who has standing. The requirements of
standing and ripeness often overlap; however, they require “distinct inquiries: ‘Whereas ripeness is
concerned with when an action may be brought, standing focuses on who may bring a ripe action.’
” Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007) (quoting Pic-A-State Pa.,
Inc. v. Reno, 76 F.3d 1294, 1298 n.1 (3d Cir. 1996)).

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The Court notes that a number of courts have already addressed the jurisdictional arguments
Defendants raise here. See Persico v. Sebelius, No. 1:12-cv-00123-SJM, 2013 WL 228200 (W.D.
Pa. Jan. 22, 2013); Colorado Christian University v. Sebelius, No. 11-cv-3350-CMA-BNB, 2013
WL 93188; Catholic Diocese of Peoria v. Sebelius, No. 1:12-cv-01276-JES-BGC, 2013 WL 74240
(C.D. Ill. Jan. 4, 2013); University of Notre Dame v. Sebelius, No. 3:12-cv-0523-RLM, 2012 WL
6756332 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi v. Sebelius, 2012 WL 6831407;
Wheaton College v. Sebelius, Nos. 12-5273, 12-5291, ---F.3d---, 2012 WL 6652505 (D.C. Cir. Dec.
18, 2012) (Order holding consolidated cases Wheaton Coll. v. Sebelius, No. 12-1169ESH, --- F.
Supp. 2d ----, 2012 WL 3637162 (D.D.C. Aug. 24, 2012) and Belmont Abbey College v. Sebelius,
No. 11-1989JEB, --- F. Supp. 2d ---, 2012 WL 2914417 (D.D.C. July 18, 2012) in abeyance
because “the cases are not fit for review at this time”); The Roman Catholic Archdiocese of New
York v. Sebelius, 1:12-cv-2542-BMC, 2012 WL 6042864 (E.D. N.Y. Dec. 5, 2012); Zubik v.
Sebelius, No. 2:12-cv-00676, ---F.Supp.2d---, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012);
Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21,
2012); Legatus v. Sebelius, No. 12-12061, --- F. Supp. 2d ---, 2012 WL 5359630 (E.D. Mich. Oct.
31, 2012); Nebraska v. U.S. Dep’t of Health & Human Servs., 877 F.Supp. 2d 777 (D. Neb. 2012).
With the exception of the court in the Roman Catholic Archdiocese of New York case, 2012 WL
6042864, at *23, the district courts decided they lacked jurisdiction over the nonprofit religious

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organizations before them based on standing and/or ripeness grounds.6 While none of these rulings
are binding on this Court, the Court finds them persuasive.
Because ripeness “provides a slightly more narrow ground for dismissal than standing,” the
Court addresses Defendants’ ripeness challenge first. Colorado Christian University, 2013 WL
93188, at *3 (quoting Zubik, 2012 WL 5932977, at *7 n.12).
Ripeness
The ripeness doctrine is taken from both Article III jurisdictional limits and policy
considerations of effective court administration. U.S. v. Rideout, 478 Fed.Appx. 339 (8th Cir. 2012)
(unpublished). The doctrine’s basic rationale is to “prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements.” Kinder, 2011 WL
1576721, at *8. See also National Park Hospitality Association v. Department of Interior, 538 U.S.
803, 807 (2003). A claim is not ripe if the alleged injury “rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.” 281 Care Committee v. Arneson, 638
F.3d 621, 631 (8th Cir. 2011) (quoting KCCP Trust v. City of N. Kan. City, 432 F.3d 897, 899 (8th
Cir. 2005)). In assessing ripeness, courts consider the fitness of the issues for judicial decision and
the hardship to the parties of withholding a decision. Kinder, 2011 WL 1576721, at *8; KCCP
Trust, 432 F.3d at 899. Considerations of hardship that might result from delaying review “rarely

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The district court in Archdiocese of New York found the plaintiffs’ claims fit for judicial
review based on its conclusion that the coverage mandate, having been formally promulgated in
the Federal Register, is not merely a “non-final proposed policy,” but rather a “final rule.” 2012
WL 6042864, at *16. The position taken by the New York court appears to be the minority view,
however, and numerous other federal courts have interpreted the prospect of the mandate’s
enforcement as a “mere contingency” in light of the Defendants’ stated plan for further
rulemaking as it relates to non-exempt religious organizations. Persico, 2013 WL 228200, at *13
(and cases cited therein).
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overcome the finality and fitness problems inherent in attempts to review tentative positions.”
Nebraska, 877 F.Supp.2d at 801 (quoting American Petroleum Institute v. EPA, 683 F.3d 382, 389
(D.C.Cir. 2012).
Defendants argue Plaintiffs’ challenge is not ripe because the preventive services coverage
regulations are in the process of being amended, and therefore not final for purposes of ripeness.
(Doc. No. 17, pp. 15, 17) This Court agrees. Because the regulations are in the process of being
amended, in their current form they represent a tentative as opposed to final agency position. See,
Persico, 2013 WL 228200, at *14 (“We, like the majority of other courts cited above, view the
Defendants’ promise to engage in further rulemaking as a good faith binding commitment which
effectively renders the Mandate a ‘non-final’ agency action, at least insofar as it relates to religious
organizations like the Plaintiffs.”); Colorado Christian University, 2013 WL 93188, at *5; Catholic
Diocese of Biloxi, 2012 WL 6831407, at *7; Catholic Diocese of Nashville, 2012 WL 5879796, at
*5 (“Because the preventive services regulations are in the process of being amended, they are by
definition a tentative agency position in which the agency expressly reserves the possibility that its
opinion might change and, therefore, are not fit for judicial decision at this time.”); University of
Notre Dame, 2012 WL 6756332, at *3 (“Notre Dame is correct that regulation itself claims to be
final, but events following the regulation’s adoption make clear that it isn’t final. The defendants
have announced their intention to refashion the rule in an effort to address concerns such as those
Notre Dame has raised and, by virtue of the safe harbor provision, have exempted Notre Dame from
the rule for the time believed to be required for the re-fashioning.”); Catholic Diocese of Peoria,
2013 WL 74240, at *5 (“[A]s the Government is in the process of amending the preventive service
regulations, those regulations are not fit for judicial review at this time. To do so would undermine

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the interests of judicial economy requiring the Court to review the Rule before it is amended and
before it is to be enforced”).
Moreover, the forthcoming amendments are intended to address the exact issue Plaintiffs
raise here by establishing alternative means of providing contraceptive coverage without
cost-sharing while accommodating religious organizations’ religious objections to covering
contraceptive services. (Id.) Defendants also point out that Plaintiffs will have opportunities to
participate in the rulemaking process and provide comments and/or ideas about the proposed
accommodations. (Id.) Thus, there is a significant chance that the amendments will alleviate the
need for judicial review. Id. (citing KCCP Trust, 432 F.3d at 899 (“A claim is not ripe for
adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed
may not occur at all.”) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). In the
meantime, Plaintiffs are protected from enforcement by the safe harbor.
Defendants further argue that Plaintiffs’ allegations of harm to their planning for upcoming
health plan years, budgeting process and employee recruitment and retention efforts do not
constitute a hardship. (Id., p. 18) Faced with substantially similar allegations, the district courts in
Persico, Colorado Christian University, Belmont Abbey, Wheaton College, and Nebraska
concluded that present planning for future contingencies did not establish hardship from delayed
review. See, Persico, 2013 WL 228200, at *15 (“Mere economic uncertainty affecting the
plaintiff’s planning is not sufficient to support pre-mature review.”); Colorado Christian University,
2013 WL 93188, at *8 (“Plaintiffs’ planning results from its ongoing speculation that Defendants
will fail to amend the interim final rule in a satisfactory manner. However, such speculation,
regardless of the costs it entails, is insufficient to constitute a hardship that would outweigh the

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Court's determination on the fitness of the issues presented, especially because Defendants' stated
intent is to amend the interim final rule so as to accommodate the concerns CCU raises here.”);
Belmont Abbey College, 2012 WL 2914417, at *14 (“Costs stemming from Plaintiff’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 Plaintiff fears
may not occur.” ); Wheaton College, 2012 WL 3637162, at *8 ( “The 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.); Nebraska, 877 F.Supp.2d 777, 802 (D.Neb. 2012)
(“The plaintiffs argue that delaying judicial review would harm them because they must either
‘make immediate and significant changes to their health care coverage arrangements in
contravention of their religious and moral beliefs’ or ‘forgo health insurance altogether and face a
steep civil penalty in doing so.’ In fact, however, this forced choice is neither imminent nor
inevitable in light of the temporary enforcement safe harbor and the ANPRM.”)
Because the preventive services coverage regulations are currently undergoing a process of
amendment to accommodate Plaintiffs’ religious objections, and because Plaintiffs are protected
from enforcement by the safe harbor, the Court concludes that Plaintiffs’ claims are not ripe for
judicial review.
Standing
To have standing, a plaintiff must demonstrate that it has “suffered an injury in fact - 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, 560-61
(1992) (quotations omitted). Allegations of possible future injury do not satisfy the requirements of

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Article III; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.”
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotations omitted). Moreover, “[i]t is a longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings,
but rather must affirmatively appear in the record. And it is the burden of the party who seeks the
exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to
invoke judicial resolution of the dispute. Thus [Plaintiffs] in this case must allege facts essential to
show jurisdiction. If they fail to make the necessary allegations, they have no standing.” Kinder,
2011 WL 1576721, at *3-4 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
Defendants argue Plaintiffs lack standing because they have not alleged any imminent
injury. (Doc. No. 17, p. 10) In fact, Plaintiffs concede they do not face an impending government
enforcement action. (Compl., ¶ 89) (“Plaintiffs have until the start of the next plan year following
August 1, 2013, to come into compliance with this law.”). Defendants maintain that the absence of
any imminent harm to Plaintiffs is further demonstrated by the ANPRM, whereby Defendants state
their intention to finalize the amendments to the regulations to accommodate Plaintiffs’ religious
objections before the safe harbor expires on August 1, 2013. (Doc. No. 17, pp. 9-13)
Plaintiffs respond that the coverage mandate and its narrow definition of religious employer
presents it with a “Hobson’s choice” of either violating their religious beliefs or risking exposure to
various penalties. (Doc. No. 26, p. 8) They contend these religious and economic issues are
sufficiently concrete to satisfy Article III. (Id.) Plaintiffs further respond that the “present impact”
of the mandate also establishes an injury in fact, in that they must now plan how they will respond
to the mandate in terms of analyzing, vetting and implementing changes to their health plans and
budgeting for any fines for disregarding the mandate in their 2013-14 budgets.

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Having rejected a similar ripeness argument, the Court will reject Plaintiffs’ standing
argument as well. See Catholic Diocese of Nashville, 2012 WL 5879796, at *5. Plaintiffs’
allegations of injury are based on speculation that the regulations will apply to Plaintiffs in their
current form come August 2013. (Doc. No. 28, p.3) Yet Defendants have stated they will issue a
new rule specifically to accommodate Plaintiffs’ religious objections. Because Defendants are
presumed to act in good faith, see, Colorado Christian University, 2013 WL 93188, at *5, the Court
construes Defendants’ representations as a binding commitment. Diocese of Peoria, 2013 WL
74240, at *5. “Because an amendment to the final rules that may vitiate the threatened injury is not
only promised but underway, the injuries alleged by Plaintiff are not ‘certainly impending.’ ”
Belmont Abbey, 2012 WL 2914417, at *10. See also Catholic Diocese of Nashville, 2012 WL
5879796, at *5; Wheaton College, 2012 WL 3637162, at *8.
Furthermore, while Defendants are in the process of amending the preventive service
regulations, the regulations are not being enforced against Plaintiffs. Other courts deciding this
identical issue have found that organizations protected under the safe harbor do not have standing
because their injury is speculative. See Zubik, 2012 WL 5932977, at *11 (court determined
plaintiffs lacked standing because the safe harbor “render[s] the threatened harm from the
preventive care regulations too remote to constitute ‘imminent’ injury,” and that “any injury from
enforcement of the [challenged] regulations after the safe harbor expires is purely speculative” in
light of the forthcoming accommodation.); Belmont Abbey, 2012 WL 2914417, at *9 (“The alleged
injury is . . . too speculative to confer standing given the government's clear intention to amend the
regulations before the safe harbor lapses in order to accommodate organizations with religious
objections to contraception.”); Notre Dame, 2012 WL 6756332, at *3 (As a result of the safe

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harbor, Notre Dame faces no penalty or restriction based on the existing regulatory requirement.);
and Legatus 2012 WL 5359630, at *5 (court held a non-profit organization lacked standing to assert
its claims because it qualified for the safe harbor). Given the existing safe harbor, there is no basis
for the Court to consider the merits of Plaintiffs’ complaint at this time.
Conclusion
This Court joins other district courts and the Court of Appeals for the District of Columbia
in concluding that it lacks subject matter jurisdiction over the case currently pending. The
challenged regulation is not sufficiently final for review to be ripe because Defendants have
announced the regulation will be modified. Plaintiffs and other similarly situated organizations will
have opportunities to participate in the rulemaking process and provide input about the proposed
modifications. In addition, Defendants have provided Plaintiffs with a safe harbor that protects
them from the regulation as it exists today. Plaintiffs also lack standing to challenge the present
regulatory requirement because they are not subject to that requirement, and, based on the new
proposed rulemaking that would amend the regulation, will never be subject to the present
regulation. University of Notre Dame, 2012 WL 6756332, at *4. Defendants’ motion will,
therefore, be granted.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [16] is GRANTED. A
separate Order of Dismissal accompanies this Memorandum and Order.

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Dated this 29th day of January, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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