Case: 19-10754 Document: 00515499861 Page: 1 Date Filed: 07/22/2020

No. 19-10754

In the United States Court of Appeals for the Fifth Circuit

_____________

Richard W. DeOtte, on behalf of themselves and others

similarly situated; Yvette DeOtte, on behalf of themselves
and others similarly situated; John Kelley, on behalf of
themselves and others similarly situated; Alison Kelley, on
behalf of themselves and others similarly situated; Hotze
Health & Wellness Center, on behalf of themselves and
others similarly situated; Braidwood Management,
Incorporated,
Plaintiffs-Appellees,
v.
State of Nevada,
Appellant.
_____________

On Appeal from the United States District Court

for the Northern District of Texas, Fort Worth Division
Case No. 4:18-cv-00825-O
_____________

APPELLEES’ RENEWED MOTION TO DISMISS NEVADA’S

APPEAL IN PART FOR LACK OF JURISDICTION
_____________

Jonathan F. Mitchell
Mitchell Law PLLC
111 Congress Avenue, Suite 400
Austin, Texas 78701
(512) 686-3940
[email protected]

Counsel for Plaintiffs-Appellees

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CERTIFICATE OF INTERESTED PERSONS

Counsel of record certifies that the following persons and entities as described in
the fourth sentence of 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 possible disqualification or recusal.

Plaintiffs Plaintiffs’ Counsel

• Richard W. DeOtte Jonathan F. Mitchell
• Yvette DeOtte Mitchell Law PLLC
• John Kelley
• Alison Kelley Charles W. Fillmore
• Hotze Health & Wellness Center H. Dustin Fillmore
• Braidwood Management Inc. The Fillmore Law Firm, LLP

Defendants Defendants’ Counsel

• Alex M. Azar II, in his official Daniel M. Reiss
capacity as Secretary of Health and James M. Burnham
Human Services
• Steven T. Mnuchin, in his official United States Department of
capacity as Secretary of the Treasury Justice
• Eugene Scalia, in his official capacity
as Secretary of Labor
• United States of America

Proposed Intervenor Proposed Intervenor’s Counsel

• State of Nevada Heidi Stern
Craig Newby

Office of the Nevada Attorney

General

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiffs-Appellees

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TABLE OF CONTENTS
Certificate of interested persons ............................................................................... i
Table of contents ..................................................................................................... ii
Table of authorities ................................................................................................ iii
Conclusion ............................................................................................................... 3
Certificate of conference ......................................................................................... 4
Certificate of compliance .......................................................................................... 5
Certificate of electronic compliance .........................................................................6
Certificate of service ................................................................................................. 7

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TABLE OF AUTHORITIES
Cases
Babb v. Wilkie, 140 S. Ct. 1168 (2020) ..................................................................... 2
Hollingsworth v. Perry, 570 U.S. 693 (2013).............................................................. 2
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,
No. 19-431 (2020) ................................................................................................. 1
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................. 2
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc) ....................................... 3
Rules
Religious Exemptions and Accommodations for Coverage of Certain
Preventive Services Under the Affordable Care Act, 83 Fed. Reg.
57,536 (November 15, 2018) ................................................................................ 2

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On July 8, 2020, the Supreme Court issued its ruling in Little Sisters of

the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (2020) (at-

tached as Exhibit 1). Little Sisters holds that the Affordable Care Act and the

Religious Freedom Restoration Act authorized the Trump Administration to

issue an agency rule that exempts religious objectors from the Contraceptive

Mandate. See slip op. at 2. And it vacates the nationwide injunction that had

blocked the Trump Administration from enforcing the rule that established

those religious exemptions. See id.

In light of the Supreme Court’s ruling in Little Sisters, the appellees re-

spectfully renew their motion to dismiss Nevada’s appeal in part for lack of

appellate jurisdiction.1 The appellees acknowledge that Nevada has standing

to appeal the order denying its motion to intervene. But Nevada lacks stand-

ing to appeal the final judgment, the class-certification orders, and the order

granting the plaintiffs’ motion for summary judgment and permanent injunc-

tion because it is not suffering any injury on account of those rulings, and

there is no remedy from this Court that is likely to redress the alleged injuries

that Nevada asserts.

Nevada lacks standing to appeal for all the reasons set forth in the appel-

lees’ previous motion to dismiss. See Appellees’ Motion to Dismiss Nevada’s

Appeal in Part for Lack of Jurisdiction (September 6, 2019); Reply Brief in

Support of Motion to Dismiss Nevada’s Appeal in Part for Lack of Jurisdic-

1. Nevada opposes this motion and will file a written response.

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tion (October 4, 2019). But the Supreme Court’s ruling in Little Sisters elim-

inates any possible Article III injury that Nevada might try to assert. The re-

ligious exemptions established in the district court’s classwide injunction

track the protections that appear in the agency rule that the Supreme Court

approved on July 8, 2020, and they do not extend beyond what the Trump

Administration’s rule independently requires. Compare Final Judgment (ECF

No. 98) (attached as Exhibit 2), with Religious Exemptions and Accommodations

for Coverage of Certain Preventive Services Under the Affordable Care Act, 83

Fed. Reg. 57,536, 57589–90 (November 15, 2018) (attached as Exhibit 3). Ne-

vada cannot possibly be suffering “injury” from a classwide injunction that

merely repeats protections for religious objectors that are already enshrined

in the agency rule.

Nevada is equally incapable of showing that any of its alleged injuries is

“likely to be redressed” by a ruling from this Court that vacates the district

court’s final judgment or class-certification orders. See Hollingsworth v. Perry,

570 U.S. 693, 704 (2013) (requiring appellants to satisfy each component of

the Article III standing test, including causation and redressability); Babb v.

Wilkie, 140 S. Ct. 1168, 1177 (2020) (“It is bedrock law that ‘requested relief’

must ‘redress the alleged injury.’” (quoting Steel Co. v. Citizens for Better En-

vironment, 523 U.S. 83, 103 (1998)); Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992) (“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’

that the injury will be ‘redressed by a favorable decision.’” (citation omit-

ted)); see also Okpalobi v. Foster, 244 F.3d 405, 426–27 (5th Cir. 2001) (en

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banc). If this Court were to vacate or modify the district court’s classwide in-

junction, the protections for religious objectors will continue to exist in the

agency rule—and so will any “injury” that Nevada might allege in this litiga-

tion. There is no possible relief that this Court can award that will redress the

injuries that Nevada asserts.

CONCLUSION
The Court should dismiss Nevada’s appeal of the district’s final judg-

ment (ECF No. 98), its class-certification orders (ECF Nos. 33 & 37), and its

order granting the plaintiffs’ motion for summary judgment and permanent

injunction (ECF No. 76), for lack of appellate jurisdiction.

Respectfully submitted.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Mitchell Law PLLC
111 Congress Avenue, Suite 400
Austin, Texas 78701
(512) 686-3940
[email protected]

Dated: July 22, 2020 Counsel for Plaintiffs-Appellees

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CERTIFICATE OF CONFERENCE

I certify that I e-mailed Craig A. Newby, counsel for Nevada, on July 8,

2020, to confer about this motion. Mr. Newby and his office were busy with

other matters, including an emergency filing at the Supreme Court of the

United States, and we mutually agreed to postpone our conference until Mr.

Newby completed his more pressing matters. On July 22, 2020, Mr. Newby

informed me that Nevada opposes this motion and will file a written opposi-

tion.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Dated: July 22, 2020 Counsel for Plaintiffs-Appellees

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CERTIFICATE OF COMPLIANCE
with type-volume limitation, typeface requirements,
and type-style requirements

1. This motion complies with the type-volume limitation of Fed. R. App.

P. 27(d)(2) because it contains 615 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f).

2. This motion complies with the typeface and type-style requirements

of Fed. R. App. P. 27(d)(1)(E), 32(a)(5), and Fed. R. App. P. 32(a)(6)
because it uses Equity Text B 14-point type face throughout, and Eq-
uity Text B is a proportionally spaced typeface that includes serifs.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Dated: July 22, 2020 Counsel for Plaintiffs-Appellees

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CERTIFICATE OF ELECTRONIC COMPLIANCE

Counsel also certifies that on July 22, 2020, this brief was transmitted to
Mr. Lyle W. Cayce, Clerk of the United States Court of Appeals for the Fifth
Circuit, via the court’s CM/ECF document filing system,
https://ecf.ca5.uscourts.gov/.
Counsel further certifies that: (1) required privacy redactions have been
made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of
the paper document, 5th Cir. R. 25.2.1; and (3) the document has been
scanned with the most recent version of VirusTotal and is free of viruses.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiffs-Appellees

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CERTIFICATE OF SERVICE
I certify that on July 22, 2020, this document was electronically filed
with the clerk of the court for the U.S. Court of Appeals for the Fifth Circuit
and served through CM/ECF upon:

Heidi Parry Stern

Solicitor General
Craig A. Newby
Deputy Solicitor General
Office of the Nevada Attorney General
555 East Washington Avenue
Las Vegas, Nevada 89101
(702) 486-3594
[email protected]
[email protected]

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiffs-Appellees