Nevada Opening Brief
Nevada Opening Brief
Nevada Opening Brief
Plaintiffs – Appellees,
v.
STATE OF NEVADA,
Movant – Appellant.
The undersigned counsel of record certifies that the following listed private
Fifth Circuit Rule 28.2.1 have an interest in the outcome of this case. These
representations are made in order that the judges of this court may evaluate
interest in the outcome of this case, to the extent they seek to uphold the district
court’s order and judgment, which allows them not to provide seamless preventive
care required by the Affordable Care Act to their employees. Similarly, employees
of the nationwide class religious employers have a financial interest in the outcome
of this case, to the extent they would lose their right to seamless preventive care
insurance pursuant to the Affordable Care Act and the medical care associated with
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addressing Nevada’s proposed intervention and the merits of this case challenging
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TABLE OF CONTENTS
Page
ARGUMENT ........................................................................................................... 15
II. Nevada Has Standing to Pursue this Appeal in Order to Remedy the
Risk of Harm to It from the District Court’s Erroneous Judgment .......... 18
III. Nevada Has the Right to Intervene, and the District Court’s Order to
the Contrary was Legal Error .................................................................. 22
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IV. The District Court’s Nationwide Class Judgment Must be Reversed and
Vacated .......................................................................................................... 35
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CONCLUSION ........................................................................................................ 48
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TABLE OF AUTHORITIES
Page
CASES:
Ashwander v. TVA,
297 U.S. 288 (1936) .............................................................................................46
Blumfield v. Dodd,
749 F.3d 339 (5th Cir. 2014) ................................................................... 23, 29, 34
Bowen v. Roy,
476 U.S. 693 (1986) ...............................................................................................7
Cutter v. Wilkinson,
544 U.S. 709 (2005) .............................................................................................44
vii
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Eternal Word Television Network v. Sec’y of U.S. Dep’t Health & Human Servs.,
818 F.3d 1122 (11th Cir. 2016) ..............................................................................6
Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell,
794 F.3d 1151 (10th Cir. 2015) ..............................................................................6
viii
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Massachusetts v. E.P.A.,
549 U.S. 497 (2007) ...................................................................................... 19, 27
Pennsylvania v. Trump,
351 F. Supp. 3d 791 (E.D. Pa. 2019)....................................................................10
Pennsylvania v. Trump,
930 F.3d 543 (3d Cir. 2019) .................................................................................10
Townley v. Miller,
722 F.3d 1128 (9th Cir. 2013) ..............................................................................46
Warth v. Seldin,
422 U.S. 490 (1975) .............................................................................................46
Zubik v. Burwell,
136 S. Ct. 1557 (2016) ................................................................................. passim
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45 C.F.R. § 147.131(d)-(e).................................................................................. 4, 36
xi
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FRAP 28(a)(4)............................................................................................................1
xii
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JURISDICTIONAL STATEMENT
jurisdictional statement:
against the district court’s July 29, 2019, order denying intervention
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STATEMENT OF ISSUES
2. The district court should have granted Nevada’s motion to intervene on the
injunction.
favor of Plaintiffs. The district court certified plaintiffs’ nationwide class and
that certain group health insurance plans provide coverage for women’s preventive
The ACA provides that certain group health insurance plans cover
preventive care and screenings without imposing costs on the employee and his/her
13(a)(54).
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the ACA, sought to redress the “fundamental inequity” that women were
systematically charged more for preventive services than men. 155 Cong. Rec.
S12027 (Dec. 1, 2009) (statement of Sen. Gillibrand). At the time, “more than half
outcomes for women. See, e.g., id. at S12052 (statement of Sen. Franken); id. at.
rejected a competing amendment that would have permitted broad moral and
religious exemptions to the ACA’s coverage requirements – the same moral and
Cong. Rec. S539 (Feb. 9, 2012); 159 Cong. Rec. S2268 (Mar. 22, 2013).
(IOM) to study the issue, and make evidence-based recommendations. The IOM
assembled a panel of independent experts who surveyed the relevant literature and
peer-reviewed medical research, and ultimately issued a final report. See IOM,
Clinical Prevention Services for Women: Closing the Gaps (2011) (IOM Report),
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methods. The IOM considers these services essential so that “women can better
avoid unwanted pregnancies and space their pregnancies to promote optimal birth
recommended that “preventive care” include not only contraceptive coverage such
education to ensure that women received information on the best method for their
https://www.nap.edu/read/13181/chapter/7#107.
HRSA adopted the IOM Report’s recommendations in its guidelines, and the
and Human Services (HHS) made clear that these coverage requirements were not
1
HRSA reaffirmed their guidelines based on recommendations by the
American College of Obstetricians and Gynecologists in 2016 and these remain the
standard. See https://www.hrsa.gov/womens-guidelines/index.html.
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entitled under the ACA, while also providing employers with a mechanism to opt
Significant litigation has been pursued within this Circuit and before the
United States Supreme Court pertaining to the balance between providing equal
access to preventive care and respecting sincerely held religious beliefs. These
initial lawsuits culminated in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __,
134 S. Ct. 2751 (2014), which held that, at minimum, closely held, for-profit
2781-82. The Supreme Court also issued emergency relief to non-profit employers
that sought to avoid delivering the prescribed certification form. See Little Sisters
of the Poor v. Sebelius, 134 S. Ct. 1022 (2014); Wheaton College v. Burwell, 134
implementing the ACA to allow closely held, for-profit corporations to use the
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to choose whether to notify the HHS Secretary directly, or to notify their health
East Texas Baptist University v. Burwell, 793 F.3d 449 (5th Cir. 2015), this Circuit
2
Seven other Circuits (out of eight) that considered this issue before Zubik
reached same conclusion this Circuit did – that the accommodation process did not
impose a substantial burden on religious exercise under RFRA. 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), vacated, ––– U.S. ––––, 136 S. Ct. 2450; 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, ––– U.S. ––––, 136 S. Ct.
2450 (2016); Grace Schs. v. Burwell, 801 F.3d 788 (7th Cir. 2015), vacated, –––
U.S. ––––, 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 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, ––– U.S., 2016 WL 2842448,
at *1 (May 16, 2016).
After Zubik, the Third Circuit reiterated its prior conclusion 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). The Ninth Circuit most recently held “that the accommodation
process likely does not substantially burden the exercise of religion.” California v.
U.S. Dep’t of Health & Human Servs., 941 F.3d 410, 429-30 (9th Cir. 2019).
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held that the ACA’s contraception requirements did not violate RFRA because
religious objectors had “not shown and [were] not likely to show that the
Id. at 452. In its analysis, this Circuit noted that plaintiffs must show that the
RFRA violation. Id. at 456. In that case, this Circuit considered the extent to which
law, whether the challenged law pressures the objector to modify his religious
exercise. Bowen v. Roy, 476 U.S. 693 (1986) (pertaining to the issuance of a Social
Security number); Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.
This Circuit concluded that “the acts [religious objectors] are required to
the acts that violate their faith are those of third parties.” East Texas Baptist
University, 793 F.3d at 459. First, this Circuit rejected the argument that
“will authorize or trigger payments for contraceptives” because the “ACA already
3
These two Supreme Court cases remain binding precedent.
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requires contraceptive coverage.” Id. Second, this Circuit rejected the argument
that held that the accommodation uses the insurance plans as vehicles for payments
for contraceptives, recognizing that this is just what the regulations prohibit. Id.
Third, this Circuit rejected the argument that offering a group health plan pressures
objectors to express their disapproval of it. Id. at 461. Stated differently, this
Circuit held that “RFRA does not entitle [objectors] to block third parties from
engaging in conduct with which they disagree.” East Texas Baptist University, 793
F.3d at 461. “In short, the acts the plaintiffs are required to perform do not involve
under RFRA to challenge the independent conduct of third parties.” Id. at 463.
The United States Supreme Court did not vacate East Texas Baptist
University, on the merits. See Zubik v. Burwell, 136 S. Ct. 1557 (2016). Instead,
the Court, following supplemental briefing from the parties addressing “whether
forward that accommodates petitioners’ religious exercise while at the same time
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ensuring that women covered by petitioners’ health plans receive full and equal
religious objectors while still ensuring that affected women receive full and equal
Departments concluded that the “comments demonstrate that a process like the one
individuals. They eventually issued final rules that allow employers and
4
It is unclear whether the Plaintiffs in this case would have found such a
process acceptable, although they note the Departments’ conclusion that “no
feasible approach had been identified at this time that would resolve the concerns
of religious objectors.” ROA.911.
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Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed.
Reg. 57,536 (November 15, 2018). The Departments’ revised rules are subject to
litigation in multiple federal courts and are currently stayed by one nationwide
preliminary injunction. See Pennsylvania v. Trump, 351 F. Supp. 3d 791 (E.D. Pa.
2019), aff’d, Pennsylvania v. Trump, 930 F.3d 543 (3d Cir. 2019). The Final Rules
are also stayed by a preliminary injunction for the 13 States (plus the District of
Columbia) that were parties to the Ninth Circuit lawsuit. See California v. U.S.
Dep’t of Health & Human Servs., 941 F.3d 410, 431 (9th Cir. 2019).
sought a nationwide class action in this case against the ACA’s contraceptive
5, 2019. ROA.276.
To date, the Federal Defendants have not filed an answer or other responsive
pleading in this case, notwithstanding the district court’s prior order to do so. See
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ROA.266. The Federal Defendants have not opposed Plaintiffs’ request for a
temporary restraining order. See ROA.1117. The Federal Defendants “are not
Defendants agreed to convert a motion for preliminary injunction into a motion for
also agreed to brief the newly converted summary judgment on an expedited basis.
ROA.1395.
ACA contraception protections. Rather than consider the intervention motion, the
thereafter, accepting Plaintiffs’ arguments that this case was substantively different
than East Texas Baptist University. ROA.1845-79. Only after awarding Plaintiffs’
final relief did the district court deny Nevada’s motion to intervene – without
hearing. ROA.2061-82.
First, the district court conducted a sua sponte analysis to determine Nevada
lacked standing. ROA.2064-69. After Nevada’s appeal, the court issued a notice
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Second, the district court rejected Nevada’s motion to intervene solely due
to its conclusion that Nevada does not have a protectable interest in this case. This
Third, the district court considered and rejected Nevada’s assertion that the
East Texas Baptist University analysis should govern this RFRA case. ROA.2079-
81.
thirty days of the order granting summary judgment. ROA.1937. Plaintiffs moved
this Court to dismiss the appeal on standing grounds. See Motion (Sept. 6, 2019).
Prior to Nevada’s opposition being due, the Federal Defendants appealed the
judgment. See Notice of Appeal (Sept. 27, 2019). Subsequently, the Federal
Defendants sought leave to stay the appeal pending the Court’s determination of
standing. See Motion (Oct. 1, 2019). In a joint motion with Plaintiffs, the Federal
Defendants also sought leave to stay this appeal pending the Court’s determination
of intervention. See Motion (Oct. 11, 2019). As set forth in the joint motion, the
Federal Defendants did “not intend to proceed with their appeal if Nevada is not
permitted to intervene and proceed with its merits appeal.” See Motion (Oct. 11,
2019) at 5. Following that request being denied by this Court, the Federal
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Defendants voluntarily dismissed their appeal. See Motion for Voluntary Dismissal
(Dec. 6, 2019).
In this Affordable Care Act contraception case, the original parties have
continuously sought to avoid adverse rulings before other federal courts on the
same substantive policy issue presented here. Disheartened that “a federal judge in
issued by the Federal Defendants], Plaintiffs filed this class action case to “seek an
injunction against [the] enforcement [of the Affordable Care Act’s contraception
injunction issued against their preferred “final rules,” the Federal Defendants
responsive pleading. Rather than seek a stay or appeal following class certification,
this Circuit’s recent analysis of the same legal question. Given this lack of
Nevada seeks intervention to protect its interests and the interests of women
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Nevadan women will be harmed by the permanent injunction. For Nevada, this
risk of harm takes the form of financial cost, increased health care costs, increased
unplanned pregnancies, and increased abortions. Ignoring these facts, the district
Nevada has standing to appeal the district court’s order denying intervention
this case. On the merits, the district court erred when making distinctions from this
Circuit’s prior analysis of the same legal issue, which is consistent with almost
This Court should reverse the district court’s judgment, and Nevada should
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ARGUMENT
Nevada’s abortion rate among women aged 15 to 19 and a 10% decrease amount
the Federal Government’s proposed Final Rules, between 600 to 1,200 Nevadan
Planning and Review, Executive Order 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).
5
Plaintiffs do not dispute this specific number, which alone demonstrates
Nevada’s interest in this case. This estimate resulted from implementation of these
provisions, per Nevada’s declarant. Reducing abortion is a direct, substantial,
legally protectable interest of Nevada. At this stage of the proceedings, this court
and the district court are obligated to defer to Nevada’s factual assertions.
6
Even if this was a mere factual allegation (rather than a fact from a
declaration issued by Nevada under penalty of perjury), this Court would still be
obligated to take this factual allegation as true for purposes of considering
intervention. Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015).
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exemptions. See Fed. Reg. at 47,821-23. The Departments accounted for various
number of employers using the accommodation. See 82 Fed. Reg. 47815-21. The
Departments based their upper bound estimate of 120,000 women from the
estimating “that no more than approximately one third of the persons covered by
47,823.
effect[]” attributable to the Interim Final Rules of between about $18.5 and $63.8
million annually nationwide. Id. at 47,823-24. This amount does not include a
Subsequently, for the final rules, based on the same methodology, the
Departments calculate that between 70,515 and 126,400 women will lose
16
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Reg. 57578, 57580; 83 Fed. Reg. 57627-28. The increase was largely attributable
to the fact that the Departments failed to account for nearly two-thirds of the
Fed. Reg. 47821 (stating that 1,027,000 people “are covered in accommodated
plans”), with 83 Fed. Reg. 57577 (stating that 2,907,000 people “were covered in
plans using the accommodation under the previous regulations”). Nevada simply
multiplied these numbers from the final rule by its percentage of the total United
The Centers for Disease Control (CDC) notes that women with unintended
pregnancies are more likely to delay prenatal care, which is imperative to positive
funded services would strain Nevada’s existing family planning programs and
providers, making it more difficult for them to meet the current need for care. For
instance, in 2014, 194,000 women were in need of publicly funded family planning
in Nevada, with the existing state family planning network only able to meet 10%
of this need. RR 1624;7 see also Frost JJ, Frohwirth L and Zolna MR,
Contraceptive Needs and Services, 2014 Update, New York: Guttmacher Institute,
7
Ms. Kost is the Acting Vice President for Domestic Research at the
Guttmacher Institute, having served in various capacities there for nearly 30 years.
ROA.1599. Her declaration describes harms associated with Plaintiffs’ proposed
permanent injunction, both on a nationwide and Nevada-specific basis.
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2016, https://www.guttmacher.org/sites/default/files/report_pdf/contraceptive-
needs-and-services-2014_1.pdf).
Nevada also implements the ACA in numerous other ways, including the
provision of the state marketplace for obtaining individual health insurance. See,
e.g., NEV. REV. STAT. (NRS) § 695I. Nevada has a public interest in the health of
its citizens, as advanced by the existing provisions. Nevada also has an interest in
ensuring equal treatment of its citizens for preventive health care, regardless of
II. Nevada Has Standing to Pursue this Appeal in Order to Remedy the
Risk of Harm to It from the District Court’s Erroneous Judgment.
occur. Rather, Nevada must show only a substantial risk of injury to satisfy the
imminence component of Article III. See, e.g., Susan B. Anthony List v. Driehaus,
573 U.S. 149, 158 (2014); Clapper v. Amnesty Int’l, USA, 568 U.S. 398, 414 n. 5
(2013) (stating that plaintiffs are not required “to demonstrate that it is literally
certain that the harms they identify will come about”). Because Nevada faces a
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substantial risk of injury as a result of the district court’s judgment, it has standing
to appeal.8
interests. This Court thus owes Nevada “special solicitude in [the] standing
520 (2007).
Nevada is not required to identify a “particular woman” who has lost or will
lose coverage as a result of the district court’s judgment. The effects detailed
above, which demonstrate that Nevada women will be negatively impacted by the
judgment and that as a result Nevada faces a substantial risk of economic injury are
sufficient to establish standing. SBA List, 573 U.S. at 158. Requiring Nevada to
identify a “particular woman” who has lost or will lose coverage because of the
rules would be equivalent to insisting that Nevada show that injury is certain to
occur. Because Article III does not demand such a showing to establish standing,
Most recently, in Texas v. United States, Case No. 19-10011, at 32 n.30 (5th
Cir. Dec. 18, 2019), this Circuit rejected arguments that standing requires proof
pertaining to at least one specific person. Id. This Court did so, recognizing that if
8
The district court determined that Nevada did not need to establish standing
in that court. RE.136-137.
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it did otherwise, it “would create a split with our sister circuits.” Id. The avoided
split was with the First, Third, and Ninth Circuits’ standing analysis relative to the
specific woman.” Id. In short, this Circuit avoided a split with sister circuits on this
issue. This Court should follow its recent opinion on this issue and reject the
Both the Supreme Court’s and this Court’s precedent recognizes standing
Nevada has asserted in this case. See Monsanto Co. v. Geertson Seed Farms, 561
U.S. 139, 153-55 & n. 3 (2010) (finding the conventional alfalfa farmers had
standing even though they did not identify a particular alfalfa plant that had been
engineered gene); see Texas v. United States, 809 F.3d 134, 155-56, 162 (5th Cir.
2015), aff’d, 136 S. Ct. 2271 (2016) (per curiam) (finding, in a case challenging
DAPA, that Texas had standing even where it did not identify particular
noncitizens who had applied, or would likely apply, for driver’s licenses “because
driving is a practical necessity in most of the state,” and there was thus a sufficient
information provided by the administrative record for the final rules, it is highly
likely that Nevada employers, such as Hobby Lobby Stores, Inc., will use the
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Hobby Lobby).
The risk of harm to Nevada is not speculative. There is a substantial risk that
contraception that is not covered by their employers’ plans. See ROA.603 (plaintiff
who lose coverage will be eligible for state-funded public insurance programs.
Nevada submitted declarations demonstrating that such programs paid 60% of all
expenses for unintended pregnancies that ended in birth, costing Nevada $37
million in 2010, prior to the ACA. ROA.1597-98, 1625. At the pre-trial stage of
this case, the declarations strongly support that Nevada faces a substantial risk of
fiscal injury from the district court’s judgment. Plaintiffs provided no evidence to
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contest those declarations, and the evidence in them must therefore “be taken to be
Nevada must be able to challenge the district court’s judgment based upon
standard to establish standing would mean that a state like Nevada would only be
able to challenge the judgment after Nevada women have suffered unacceptable
harm. Nevada’s request for a remedy cannot wait. This is particularly true here,
whether it causes Nevada any financial injury. See Alfred L. Snapp & Son, Inc. v.
Puerto Rico, 458 U.S. 592, 607 (1982) (finding that Puerto Rico has a “quasi-
In short, this Court has standing to consider all issues raised by Nevada in
this appeal.
III. Nevada Has the Right to Intervene, and the District Court’s Order to
the Contrary was Legal Error.
Nevada is entitled to intervene as a matter of right if: (1) its motion is timely;
(2) it has an interest “relating to the property or transaction which is the subject of
the action;” (3) the outcome of the action may, “as a practical matter, impair or
impede his ability to protect that interest;” and (4) the existing parties cannot
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749 F.3d 339, 341 (5th Cir. 2014). “[D]oubts [are] resolved in favor of the
proposed intervenor.” In re Lease Oil Antitrust Litig., 570 F.3d 244, 248 (5th Cir.
2009). In fact, this Circuit has allowed parties to intervene even where they never
filed a motion to do so. See Farina v. Mission Inv. Trust, 615 F.2d 1068, 1074 (5th
Cir. 1980). For the purposes of Nevada’s motion for intervention, this Court must
accept Nevada’s factual allegations as true. Texas v. United States, 805 F.3d 653,
practical rather than a technical yardstick,” and the inquiry is a “flexible one”
focused on the “particular facts and circumstances” of each case. Edwards v. City
of Houston, 78 F.3d 983, 999 (5th Cir. 1996) (en banc). “Federal courts should
allow intervention where no one would be hurt and the greater justice could be
obtained.” Texas v. United States, 805 F.3d at 657; Sierra Club v. Espy, 18 F.3d
Here, the district court held that Nevada met its burden as to the timeliness,
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Nevada satisfies Rule 24’s requirement that intervenors must have a “direct,
805 F.3d at 657. Property or pecuniary interests are the “most elementary type[s]
of right[s]” protected by Rule 24(a) and “are almost always adequate.” Id. at 658.
Rule 24(a) safeguards less tangible interests as well, however, such as a right
to vote. See, e.g., League of United Latin American Citizens, District 19 v. City of
Boerne, 659 F.3d 421, 434 (5th Cir. 2011). For instance, this Court has recognized
that intervention as of right does not require proof of a property right in the context
original). “In other words, an interest is sufficient if it is of the type that the law
deems worthy of protection, even if the intervener does not have an enforceable
legal entitlement or would not have standing to pursue her own claim.” Id.
As set forth above, Nevada has achieved concrete public health gains in reducing
unintended pregnancies and abortions from these provisions. The ACA intended to
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provide Nevada these public health benefits, along with potential fiscal benefits.
Under these circumstances, Nevada has a legally protectable interest in this case.
economic interest not directly related [to] this litigation”—is simply incorrect.
interest, which courts are obligated to treat as true for purposes of adjudicating this
the federal government’s proposed final rules, that between 600 to 1,200 Nevada
ROA.1598. This is straightforward math. The CDC notes that women with
unintended pregnancies are more likely to delay prenatal care, which is imperative
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strain Nevada’s existing family planning programs and providers, making it more
Nevada’s determination that its citizens face a substantial risk of harm is not
speculative. The determination is based squarely on the facts detailed above. This
Court should thus reject the district court’s contention that Nevada’s interest is not
“direct” because “Nevada argues that the class-wide injunction Plaintiffs seek will
have ripple effects.” ROA.2072. In making this finding, the district court
inappropriately substitutes a test for certainty instead of risk at the pleading stage
of this case. See Department of Commerce v. New York, 139 S. Ct. 2551, 2565-66
(2019). The Supreme Court has explained the concept of risk, recognizing that
impending, or there is a substantial risk that the harm will occur.” Id. at 2565
(citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (SBA List)).
The Court rejected causation arguments that asserted speculation about the
decisions of independent actors. Id. The Court held that traceability was satisfied
“on the predictable effect of Government action on the decisions of third parties.”
Id. at 2566.
Nevada has pled, based on the calculations made by the federal government,
that 600-1,200 Nevada women would be affected, such that they would be at risk
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outcome of these proceedings because it does not estimate the amount of additional
This Court has recognized that “a party within the zone of interests protected
by a statute may possess a type of substantive right not to have the statute
violated.” New Orleans Pub. Serv., Inc. v. United Gas Pipeline Co. (NOPSI), 732
F2d. 452, 465 (5th Cir. 1984) (en banc). This Court did not further “determine the
general application” in NOPSI because that dispute did “not involve such a public
recognized that states have a quasi-sovereign interest in the physical and economic
well-being of their residents. See, e.g., Alfred L. Snapp & Son v. Puerto Rico, 458
U.S. 592, 607-608 (1982); Massachusetts v. E.P.A., 549 U.S. 497, 519-20 (2007).
Nevada has demonstrated the extensive harm to itself and its residents that would
9
NOPSI rejected intervention because it determined that there was adequate
representation of the City of New Orleans’ interest by NOPSI in the breach of
contract dispute with a fuel supplier. Id. at 472-73. Here, Plaintiffs cannot and do
not argue that the Federal Defendants have represented Nevada’s interests in this
case.
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flow from Plaintiffs’ unopposed prosecution of this lawsuit. “States are not normal
U.S. at 518.
interests. See Texas v. United States, 809 F.3d at 150–62 (5th Cir. 2015). Among
other factors considered in this case, this Court held that certain actions can affect
change their laws.”10 Id. at 153. This Court rejected the argument that states had
the ability to avoid injury by changing applicable law. “States have a sovereign
interest in the power to create and enforce a legal code,” and the possibility that a
plaintiff could avoid injury by incurring other costs does not negate standing. Id.
at 156-57.
Here, Nevada has demonstrated the extensive harm to itself and its residents
that would flow from Plaintiffs’ unopposed prosecution of this lawsuit. Nevada has
asserted its public health and financial interests in maintaining the existing balance
under federal law for providing Nevadans equal access to preventive care without
regard to their sex. Existing Nevada statute highlights Nevada’s support for this
existing balance, as they also balance access to preventive care with the religious
liberty interests of insurers who are “affiliated with a religious organization.” See
10
The Court limited its recognition of “quasi-sovereign” interests to the facts
asserted in the case. Id. at 154-55.
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Nevada’s efforts to preserve the existing balance is consistent with these Nevada
statutes.
impede” Nevada’s ability to protect its interests detailed above. Wal-Mart, 834
F.3d at 565. With complete disregard for Nevada’s interests, Plaintiffs seek to
Nevada should not be forced to “wait on the sidelines” while a court decides
issues “contrary to their interests.” Brumfield, 749 F.3d at 344–45. Rather, the
that a court may consider them before making potentially adverse decisions.” Id. at
345 (emphasis added). Indeed, the mere “stare decisis effects of the district court’s
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This Court considers four factors when evaluating the timeliness of a motion
to intervene:
(1) The length of time the applicants knew or should have known of
Stallworth v. Monsanto Co., 558 F.2d 257, 264–66 (5th Cir. 1977). Each factor
this case.
ignored.” Sierra Club, 18 F.3d at 1205. The clock beings to run when the
applicants knew or reasonably should have known of their interests, or from the
time they became aware that their interests would no longer be protected by the
existing parties to the lawsuit. Edwards, 78 F.3d at 1000; Sierra Club, 18 F.3d at
1206.
Here, the district court, at the behest of the parties, including the Federal
converted a potential motion for preliminary injunction into a motion for summary
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judgment and permanent injunction. ROA.1406. It took the parties the week of
April 15th to complete the briefing. ROA.1409-35. Only then did the Federal
Defendants file a “Response” in which they stated they “do not oppose an order by
this Court entering partial summary judgment on the legal question whether any
employers or individuals who in fact fall within the certified classes have stated a
Nevada has acted diligently and did not unduly delay its efforts to intervene
in this case. Nevada could not have known the district court was considering
[having been concluded] during those next nine days.” ROA.2070. It was simply
Nevada only learned of the Federal Defendants’ position in this case after the week
of April 19th, and it then prepared the motion to intervene and proposed opposition
Nevada is prejudiced by not being able to defend the existing preventive health
care provisions premised on this Court’s prior analysis. Nevada’s motion satisfies
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Rule 24(a)(2)’s timeliness requirement. This Court should uphold the district
Federal Defendants:
merits, even though this Court previously analyzed the same issue
11
Nevada recognizes that the United States Supreme Court vacated this
Circuit’s decision in Zubik and remanded to allow the parties in those cases to
explore whether further modifications to the existing accommodation procedure
could resolve the asserted objections while still ensuring affected women receive
full and equal health coverage, including contraceptive coverage. Based in part on
comments that the process described in Zubik would not resolve the concerns of
religious objectors, the Departments concluded that there was no feasible approach
“identified at this time.” See U.S. Dep’t of Labor, Emp. Benefits Sec. Admin.,
FAQs About Affordable Care Act Implementation Part 36, (Jan. 9, 2017). The
Departments further noted that they “continue to believe the existing
accommodation regulations are consistent with RFRA” based on the prior holdings
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judgment and, even if they did so, whether Nevada should first be
intervention order.
its interests resulting from a nationwide injunction. These circumstances more than
by the Federal Defendants applied to this case and that Nevada was not adequately
identified “particular ways in which its interests diverge” from the Federal
Defendants, it is entitled to intervene. Texas v. United States, 805 F.3d at 663. This
Court has repeatedly held that intervention is required under these circumstance—
where the proposed intervenor seeks intervention as a defendant, has rebutted the
identifying its divergent interests and legal arguments from the existing defendants.
by eight other Circuits (including this one) that the requirement does not
substantially burden their exercise of religion. Id. Nevada submits (and would
argue, upon intervention) that the prior analysis undertaken by this Circuit should
govern this Court’s analysis of that legal question.
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See Brumfield, 749 F.3d at 346; Texas v. United States, 805 F.3d at 663; Entergy
Gulf States La., LLC v. E.P.A., 817 F.3d 198, 203 (5th Cir. 2016); Wal-Mart, 834
F.3d at 569. Because Nevada has met those requirements, this Court should grant it
24(b), which permits the Court to use its discretion to grant intervention where the
application is timely, there is a common question of law or fact, and there will be
Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987); In re Enron Corp. Sec.
Derivative & “ERISA” Litig., 229 F.R.D. 126, 131 (S.D. Tex. 2005). Rule 24(b)(2)
Court has also instructed that “[f]ederal courts should allow intervention where no
one would be hurt and the greater justice could be obtained.” Texas v. United
Nevada, without a final determination of the merits, has asserted a defense that
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involving the same preventive health care provisions, there is no doubt that this is a
valid defense. See East Texas Baptist Univ., 793 F.3d 449. This is consistent with
the district court’s subsequent “notice,” in which it determined that it erred when
determining Nevada lacked standing because Nevada seeks defense of the ACA.
named Plaintiffs and the ability of any other class member to seek similar relief,
Nevada’s intervention would not cause undue delay or prejudice to the original
parties.
A. Standard of Review
This Court views all evidence in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
material fact and the moving party is entitled to judgment as a matter of law.
Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir. 2006).
This Court has already determined that “RFRA does not entitle [objectors] to
block third parties from engaging in conduct with which they disagree.” East Texas
Baptist University, 793 F.3d at 461. It has also previously analyzed the acts
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contraception mandate. Id. This Circuit held that “the acts [objectors] are required
conduct of third parties,” [this Circuit joined other circuits] in concluding that the
plaintiffs have not shown a substantial burden on their religious exercise.” Id.
Without any opportunity for discovery, the district court erred in its efforts to
distinguish this case from what this Circuit already considered in East Texas
Baptist University.
First, the district court erred in agreeing that contraception coverage would
This assertion ignores the plain language of the accommodation, which excludes
contraceptive coverage from the group coverage, segregates all premium revenue,
and provides separate notice regarding the separate contraceptive coverage. See 45
Zubik, “[i]n all cases, the regulations mandate strict separation between the
and other coverage provided on behalf of the employer.” Zubik, Response Brief
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demonstrating that their own health plans “sponsor” the entirely separate
contraceptive coverage, because none exists. That result is impermissible under the
The federal government’s Zubik brief directly refutes the claims made by
Plaintiffs and the district court: “Nor does the government, in fact, provide
Zubik, Resp. Br., 2016 WL 537623, at *38. The federal government did state that if
ERISA.” Id. at *38. That simply means that the separate contraceptive coverage
between the TPA and the employee—for purposes of ERISA only—is part of the
same ERISA plan as the coverage provided by the employer. Id. That does not
change the fact that even for those self-insured plans, the “rules governing
contraceptive coverage are established by the government, not the employer, and
the employer does not fund, control, or have any other involvement in that separate
the TPA and the employee does not affect the terms of the group health coverage
that the employer and the insurer have contractually agreed upon— coverage that
excludes contraceptives. See, e.g., Priests for Life v. Department of Health and
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Human Servs., 772 F.3d 229, 225 (D.C. Cir. 2014) (stating that the fact that the
government names the TPA as the plan administrator of the separate contraceptive
coverage, for purposes of ERISA only, “does not . . . amend or alter Plaintiffs’ own
plan instruments . . .”). This Court’s prior analysis was not based on a mistaken
factual premise. The district court’s conclusion to the contrary was error.
Second, this Court has already specifically acknowledged that the ACA
itself “already requires contraceptive coverage” and that nothing “suggests that
refused to apply for the accommodation.” East Texas Baptist University, 793 F.3d
at 459. Plaintiffs previously argued that the submission of the form for
This Court recognized, however, that “the plaintiffs cannot authorize or trigger
what others are already required by law to do.” ROA.583. Plaintiffs are not entitled
See Brief of the Baptist Joint Committee for Religious Liberty as Amicus Curiae in
without further evidence, do not make it impossible to follow this Circuit’s prior,
persuasive analysis. It is not, in fact, “impossible for a court to accept East Texas
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Baptist University’s holding that the certification form does nothing to ‘facilitate’
misleading. Their arguments on this point are based solely on their own stated
opinion that “a process like the one described in the Court’s supplemental briefing
order [in Zubik] would not be acceptable to those with religious objections to the
statement.
“insurers will not lose money by paying for contraceptives, because the savings on
pregnancy care at least are expected to equal the costs of contraceptives.” East
Texas Baptist University, 793 F.3d at 460. Providing preventive health care results
in reduced health care costs, constituting long-term savings for insurers that are
passed along to all insureds. Without record evidence showing an actual subsidy,
contraception provisions. East Texas Baptist Univ., 793 F.3d 449. Simply put, the
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The district court’s order presumed “- without finding -” that there was a
significantly more costly than for a male employee.” Id. at 2785-86 (Kennedy, J.,
existing methods were the “least restrictive means” available for implementing the
RA.1661, 1664-65. The sole dispute now is the federal government’s potential
This Court should similarly assume the compelling governmental interest or,
This Court must next consider whether the government has pursued that
interest through the least-restrictive means “available.” Bob Jones Univ. v. United
States, 461 U.S. 574, 604 (1983). RFRA does not provide for any imaginable new
Congress could enact a new law establishing separate insurance. The Supreme
Court has rejected exemption from minimum-wage laws simply because Congress
could pass a law ensuring additional monies are paid to make up the difference.
See Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 303-06
(1985).
contraception. See East Texas Baptist University, 793 F.3d 449. Plaintiffs’ position
impossible to reconcile with United States v. Lee, 455 U.S. 252, 259-61 (1982).
the exemption would have resulted in the denial of benefits to employees. Id.
Under Plaintiffs’ argument, the government itself should have stepped in to pay
rather than employer withholding. Each step was theoretically within Congress’
power, and each would have been less burdensome on the employer than requiring
participation in the Social Security system. The Supreme Court rejected that logic
under the Free Exercise Clause, and this Court should recognize the district court’s
The ACA’s accommodation provision amply satisfies this standard for the
least restrictive means available. “The heart of the Affordable Care Act was a
our country, rather than to substitute a new ‘single payer’ government program to
pay for health care, like the systems in place in the United Kingdom and Canada.”
University of Notre Dame v. Burwell, 786 F.3d 606, 625 (7th Cir. 2015) (Hamilton,
J., concurring); see 78 Fed. Reg. at 39,888. The accommodation works within that
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alternative approaches, but concluded that those alternatives “were not feasible
information process confirmed that there was no such process that would resolve
framework to provide coverage.” Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J.,
concurring). The Supreme Court explained that accepting the RFRA challenge in
Hobby Lobby “need not result in any detrimental effect on any third party” because
extended to closely held for-profit companies. Id. at 2781 n.37. The Supreme
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Court has thus repeatedly emphasized that the effect of its decision on female
employees and beneficiaries “would be precisely zero.” Id. at 2760; see id. at 2759,
that Hobby Lobby identified, while conceding that it would require Congress to
took such action, women who rely on objecting employers for their health
required, and that RFRA grants them a right to prevent the affected women from
obtaining separate coverage from third parties, Plaintiffs disregard the Supreme
Court’s admonition that courts applying RFRA “must take adequate account of the
Lobby, 134 S. Ct. at 2781 n.37 (quoting Cutter v. Wilkinson, 544 U.S. 709, 720
(2005)). The free exercise of religion protected by RFRA cannot “unduly restrict
other persons, such as employees, in protecting their own interests, interests the
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because “unnamed class members have not yet established that they in fact have a
submitted that they are required to have “an opportunity … to contest such a
showing,” (ROA.1414), and that the “proposed injunction puts [them] at risk of
Defendants argued that “Plaintiffs are improperly proposing that this Court enter
final judgment,” effectively putting “the cart before the horse.” ROA.1417.
pertaining to the validity of the ACA contraception provisions, but agree on the
In the event this Court denies Nevada’s intervention, it should recognize the
lack of Article III “case or controversy” between the original parties to this case
and vacate the nationwide class judgment. The district court judgment occurred
570 U.S. 744, 759-62 (2013), where the federal government refused to defend the
This case exemplifies the Supreme Court’s concern with facing a “friendly,
non-adversary, proceeding …[in which] ‘a party beaten in the legislature [seeks to]
Id. at 759-60 (quoting Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J.,
decisions reached in actions brought by parties who may not have adequate
722 F.3d 1128, 1135 (9th Cir. 2013) (quoting Wright et al., FED. PRACTICE AND
PROCEDURE § 3531.1 (3d ed. 2008)). This allows courts to avoid deciding “abstract
may be more competent to address the questions and even though judicial
adversity on this issue in this case. As a result, “nonparties” will suffer from poorly
considered decisions in this case, including the lack of factual distinctions with this
Court’s prior analysis of the identical legal issue. Even before this Court, the
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for effectively defending the Affordable Care Act. They appealed the judgment
then 3) addressing the merits of the underlying judgment. The Federal Defendants
forced these contortions—all while insisting that they would not actually appeal
should Nevada be defeated during the first two stages of the process. See Joint
Motion (October 11, 2019). In short, the Federal Defendants wanted the
nationwide class judgment despite not being able to succeed through the
interested parties such as Plaintiffs and Nevada to participate and to seek judicial
relief.
has the authority to vacate the nationwide class judgment. It should recognize that
This would allow any other objector to file suit for individual judgment while the
objectors sought class relief, they could provide appropriate notice to any and all
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interested parties, such that the interplay between RFRA and the ACA’s
CONCLUSION
Nevada requests that this Court reverse and vacate the district court’s
judgment and order the district court to permit Nevada to intervene in the action
below.
SUBMITTED BY:
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CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing document with the Clerk of
the Court for the United States Court of Appeals for the Fifth Circuit by using the
appellate CM/ECF System on January 7, 2020. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
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CERTIFICATE OF COMPLIANCE
P. 32(a)(5) and the type-style requirements of FED. R. APP. P. 32(a)(6) because this
50