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Case: 14-20112 Document: 00513964561 Page: 1 Date Filed: 04/24/2017

IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT
__________________________________

EAST TEXAS BAPTIST UNIVERSITY, et al.,


Plaintiffs-Appellees,

WESTMINSTER THEOLOGICAL SEMINARY,


Intervenor Plaintiff-Appellee,

v. No. 14-20112

THOMAS E. PRICE, et al.,


Defendants-Appellants.
______________________________________
UNIVERSITY OF DALLAS,
Plaintiff-Appellee,

v. No. 14-10241

THOMAS E. PRICE, et al.,


Defendants-Appellants.
__________________________________
CATHOLIC DIOCESE OF BEAUMONT, et al.,
Plaintiffs-Appellees,

v. No. 14-40212

THOMAS E. PRICE, et al.,


Defendants-Appellants.
__________________________________
CATHOLIC CHARITIES, DIOCESE
OF FORT WORTH, INC.,
Plaintiff-Appellee,

v. No. 14-10661

THOMAS E. PRICE, et al.,


Defendants-Appellants.
__________________________________
Case: 14-20112 Document: 00513964561 Page: 2 Date Filed: 04/24/2017

STATUS REPORT

The Departments respectfully submit this status report. For the reasons

discussed below, the abeyance in these cases should be continued with the next status

reports due in 60 days, on Friday, June 23, 2017.

In their status report filed on Thursday, April 20, the plaintiffs represented by

the Becket Fund argued that the abeyance should be ended. The Becket Fund made a

similar request on behalf of other plaintiffs in the Tenth Circuit, which the Tenth

Circuit denied. (Copies of the motion and order are attached.) The request to lift the

abeyance in these cases should be denied as well.

When the Supreme Court remanded these and other cases, it indicated that

the parties on remand should be afforded an opportunity to arrive at an approach

going forward that accommodates petitioners religious exercise while at the same

time ensuring that women covered by petitioners health plans receive full and equal

health coverage, including contraceptive coverage. Zubik v. Burwell, 136 S. Ct. 1557,

1560 (2016) (internal quotation marks and citation omitted). The Supreme Court

expressly anticipate[d] that the Courts of Appeals will allow the parties sufficient

time to resolve any outstanding issues between them. Id.

Plaintiffs emphasize that eleven months have elapsed since that remand order

but, as they acknowledge, the new Administration has been in place for only a few

months. The regulations at issue here are jointly administered by three

Departmentsthe Department of Health & Human Services, the Department of


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Case: 14-20112 Document: 00513964561 Page: 3 Date Filed: 04/24/2017

Labor, and the Department of the Treasuryand are the subject of numerous other

lawsuits being handled by the Department of Justice. The nominee to be Secretary of

Labor has not yet been confirmed, and numerous subcabinet positions at the

Departments have not yet been filled. The issues presented by the Supreme Courts

remand order are complex; for example, the original accommodation took more than

a year to develop with input from interested parties. See 77 Fed. Reg. 8725, 8728

(Feb. 15, 2012) (announcing the Departments intent to develop an accommodation

for non-profit organizations with religious objections to providing contraceptive

coverage); 77 Fed. Reg. 16,501 (Mar. 21, 2012) (advance notice of proposed

rulemaking); 78 Fed. Reg. 8456 (Feb. 6, 2013) (notice of proposed regulations); 78

Fed. Reg. 39,870 (July 2, 2013) (final rule).

Nor does the continued abeyance of these case prejudice plaintiffs. They have

the benefit of the interim relief that the Supreme Court provided in its remand order,

which in relevant part stated that the Government may not impose taxes or penalties

on [plaintiffs] for failure to provide the relevant notice. Zubik, 136 S. Ct. at 1561.

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Case: 14-20112 Document: 00513964561 Page: 4 Date Filed: 04/24/2017

Respectfully submitted,

MARK B. STERN
/s/Alisa B. Klein
ALISA B. KLEIN
PATRICK G. NEMEROFF
JOSHUA M. SALZMAN
202-514-1597
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., NW, Rm. 7235
Washington, DC 20530

APRIL 2017

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Case: 14-20112 Document: 00513964561 Page: 5 Date Filed: 04/24/2017

CERTIFICATE OF SERVICE

I hereby certify that on April 24, 2017, I electronically filed the foregoing with

the Clerk of the Court by using the appellate CM/ECF system. I further certify that

the participants in the case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.

s/ Alisa B. Klein
ALISA B. KLEIN
Case: 14-20112 Document: 00513964561 Page: 6 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 1

No. 13-1540

In the United States Court of Appeals for the Tenth Circuit

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a
Colorado non-profit corporation, LITTLE SISTERS OF THE POOR,
BALTIMORE, INC., a Maryland non-profit corporation, by themselves and
on behalf of all others similarly situated, CHRISTIAN BROTHERS
SERVICES, an Illinois non-profit corporation, and CHRISTIAN BROTHERS
EMPLOYEE BENEFIT TRUST,
Appellants,
v.
THOMAS PRICE, Secretary of the United States Department of Health
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, EDWARD HUGLER, Acting Secretary of the United
States Department of Labor, UNITED STATES DEPARTMENT OF LABOR,
STEVEN MNUCHIN, Secretary of the United States Department of the
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Appellees.

On Appeal from the United States District Court


for the District of Colorado, Hon. William J. Martinez
Civ. No. 1:13-cv-02611-WJM-BNB

PLAINTIFFS-APPELLANTS STATUS REPORT


Case: 14-20112 Document: 00513964561 Page: 7 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 2

Plaintiffs-Appellants (collectively the Little Sisters) provide the

following status report:

Recent changes in the governments position suggest that this matter

should be resolved soon. Accordingly, the Little Sisters respectfully

suggest that the parties report back to the Court on their progress in 15

days.

Among other things, it is now clear that Defendants agree with the

Little Sistersand with Judges Gorsuch, Hartz, Holmes, Kelly, and

Tymkovichthat the Mandate imposes a substantial burden on the

Little Sisters religious exercise. See Little Sisters of the Poor Home for

the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (Hartz,

J., dissenting from denial of rehearing en banc).

First, on January 20, 2017, President Trump issued Executive Order

No. 13765, which orders Defendant HHS to grant waivers and

exemptions from requirements under the ACA to the maximum extent

permitted by law. In particular, the Executive Order states:

Sec. 2. To the maximum extent permitted by law, the


Secretary of Health and Human Services (Secretary) and the
heads of all other executive departments and agencies
(agencies) with authorities and responsibilities under the Act
shall exercise all authority and discretion available to them
to waive, defer, grant exemptions from, or delay the
Case: 14-20112 Document: 00513964561 Page: 8 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 3

implementation of any provision or requirement of the Act


that would impose a fiscal burden on any State or a cost, fee,
tax, penalty, or regulatory burden on individuals, families,
healthcare providers, health insurers, patients, recipients of
healthcare services, purchasers of health insurance, or
makers of medical devices, products, or medications.

E.O. 13765 of January 20, 2017, 82 Fed. Reg. 8351. This exemption-

friendly approach runs directly counter to the anti-accommodation

position taken by the government when it last appeared before this

Court.

Second, on February 10, 2017, Dr. Thomas Price was confirmed as

Secretary of Health and Human Services. See

https://www.congress.gov/nomination/115th-congress/33. Dr. Price has

already taken the position at the United States Supreme Court that the

Mandate violates RFRA. Dr. Prices amicus brief in support of the Little

Sisters explained:

The Governments defense of its so-called accommodation for


religious non-profitsan accommodation that requires petitioners
to take an action they believe to be morally wrongcannot satisfy
the strict demands of RFRA.

The petitioners sincerely believe they would be morally complicit


if they take the actions HHS requires. As long as that belief is
sincereand the Government admits that it isthe Government
may not second guess it.
Case: 14-20112 Document: 00513964561 Page: 9 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 4

When an organization faces substantial penalties for refusing to


engage in conduct it sincerely believes is wrong, its religious
exercise is necessarily substantially burdened.
Brief of Amici Curiae 207 Members of Congress 9-10, 29, Zubik v.

Burwell, 136 S. Ct. 1557 (2016) (Nos. 14-1418, 14-1453, 14-505, 15-35, 15-

105, 15-119, 15-191).

Third, it is clear that Defendant Prices view of the Mandate is shared

by the President. President Trump has referred to the Rule as an

onerous mandate and its impact on the Little Sisters as a hostility to

religious liberty you will never see in a Trump Administration. Letter

from Donald J. Trump to Catholic Leadership Conference, October 5,

2016, available at

http://www.catholicnewsagency.com/pdf/DJT_catholic_leadership_confer

ence_letter.pdf. Furthermore, the President declared I will make

absolutely certain religious orders like the Little Sisters of the Poor are

not bullied by the federal government because of their religious beliefs.

Id.

For these reasons, the Little Sisters expect that this dispute should be

resolved soon and respectfully request that the parties file a joint status

report as to their progress in 15 days.


Case: 14-20112 Document: 00513964561 Page: 10 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 5

Respectfully submitted,

/s/ Mark Rienzi


Mark L. Rienzi
Daniel Blomberg
The Becket Fund for Religious Liberty
1200 New Hampshire Ave N.W.
Suite 700
Washington, DC 20036
(202) 349-7208
mrienzi@becketfund.org

Carl C. Scherz
Seth Roberts
Locke Lord LLP
2200 Ross Avenue
Suite 2200
Dallas, Texas 75201
(214) 740-8583
cscherz@lockelord.com

Kevin C. Walsh
Univ. of Richmond Law School
28 Westhampton Way
Richmond, VA
(804) 287-6018
kwalsh@richmond.edu

Attorneys for Plaintiffs-Appellants

MARCH 2017
Case: 14-20112 Document: 00513964561 Page: 11 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 6

Certification of Compliance
I certify that (1) all required privacy redactions have been made; (2)
any required paper copies are exact versions of the document filed
electronically; and (3) that the electronic submission was scanned for
viruses and found to be virus-free.

/s/ Mark L. Rienzi


Mark L. Rienzi
Case: 14-20112 Document: 00513964561 Page: 12 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780227 Date Filed: 03/15/2017 Page: 7

Certificate of Service
I hereby certify that on March 15, 2017, I electronically filed the
foregoing with the Clerk of Court by using the appellate CM/ECF system.
I further certify that the participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.

/s/ Mark L. Rienzi


Mark L. Rienzi
Case: 14-20112 Document: 00513964561 Page: 13 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780683 Date Filed: 03/16/2017 Page: 1


FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 16, 2017


_________________________________
Elisabeth A. Shumaker
Clerk of Court
LITTLE SISTERS OF THE POOR HOME
FOR THE AGED, DENVER,
COLORADO, a Colorado non-profit
corporation; LITTLE SISTERS OF THE
POOR, BALTIMORE, INC., a Maryland
non-profit corporation, by themselves and
on behalf of all others similarly situated;
CHRISTIAN BROTHERS SERVICES, a
New Mexico non-profit corporation;
CHRISTIAN BROTHERS EMPLOYEE
BENEFIT TRUST,

Plaintiffs - Appellants,

v. No. 13-1540

THOMAS PRICE, Secretary of the United


States Department of Health and Human
Services; UNITED STATES
DEPARTMENT OF HEALTH &
HUMAN SERVICES; EDWARD
HUGLER, Acting Secretary of the United
States Department of Labor; UNITED
STATES DEPARTMENT OF LABOR;
STEVEN MNUCHIN, Secretary of the
United States Department of the Treasury;
UNITED STATES DEPARTMENT OF
THE TREASURY,

Defendants - Appellees.

------------------------------

ASSOCIATION OF GOSPEL RESCUE


MISSIONS; ASSOCIATION OF
CHRISTIAN SCHOOLS
INTERNATIONAL; PRISON
FELLOWSHIP MINISTRIES;
Case: 14-20112 Document: 00513964561 Page: 14 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780683 Date Filed: 03/16/2017 Page: 2

NATIONAL ASSOCIATION OF
EVANGELICALS; ETHICS &
RELIGIOUS LIBERTY COMMISSION
OF THE SOUTHERN BAPTIST
CONVENTION; THE LUTHERAN
CHURCH- MISSOURI SYNOD;
AMERICAN BIBLE SOCIETY;
INSTITUTIONAL RELIGIOUS
FREEDOM ALLIANCE AND
CHRISTIAN LEGAL SOCIETY;
LIBERTY, LIFE, AND LAW
FOUNDATION; UNITED STATES
CONFERENCE OF CATHOLIC
BISHOPS; LIBERTY UNIVERSITY;
LIBERTY COUNSEL; 67 CATHOLIC
THEOLOGIANS AND ETHICISTS;
CONCERNED WOMEN FOR
AMERICA; AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE; AMERICAN CIVIL LIBERTIES
UNION; AMERICAN CIVIL LIBERTIES
UNION OF COLORADO; NATIONAL
HEALTH LAW PROGRAM;
AMERICAN PUBLIC HEALTH
ASSOCIATION; NATIONAL FAMILY
PLANNING & REPRODUCTIVE
HEALTH ASSOCIATION; NATIONAL
WOMEN'S HEALTH NETWORK;
NATIONAL LATINA INSTITUTE FOR
REPRODUCTIVE HEALTH;
NATIONAL ASIAN PACIFIC
AMERICAN WOMEN'S FORUM;
ASIAN AMERICANS ADVANCING
JUSTICE; AAJC; ASIAN AMERICANS
ADVANCING JUSTICE-LOS ANGELES;
ASIAN & PACIFIC ISLANDER
AMERICAN HEALTH FORUM; BLACK
WOMEN'S HEALTH IMPERATIVE;
FORWARD TOGETHER; IPAS;
SEXUALITY INFORMATION AND
EDUCATIONAL COUNCIL OF THE
U.S. (SIECUS); HIV LAW PROJECT;
CHRISTIE'S PLACE; NATIONAL
Case: 14-20112 Document: 00513964561 Page: 15 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780683 Date Filed: 03/16/2017 Page: 3

WOMEN AND AIDS COLLECTIVE;


CALIFORNIA WOMEN'S LAW
CENTER, NATIONAL WOMEN'S LAW
CENTER; AMERICAN ASSOCIATION
OF UNIVERSITY WOMEN; AMERICAN
FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
(AFSCME); BLACK WOMEN'S
HEALTH IMPERATIVE; FEMINIST
MAJORITY FOUNDATION; IBIS
REPRODUCTIVE HEALTH; MERGER
WATCH; NARAL PRO-CHOICE
AMERICA; NATIONAL
ORGANIZATION FOR WOMEN (NOW)
FOUNDATION; NATIONAL
PARTNERSHIP FOR WOMEN AND
FAMILIES; PLANNED PARENTHOOD
ASSOCIATION OF UTAH; PLANNED
PARENTHOOD OF THE HEARTLAND;
PLANNED PARENTHOOD OF KANSAS
AND MID-MISSOURI; PLANNED
PARENTHOOD OF THE ROCKY
MOUNTAINS, INC.; RAISING
WOMEN'S VOICES FOR THE HEALTH
CARE WE NEED; SERVICE
EMPLOYEES INTERNATIONAL
UNION (SEIU), .

Amici Curiae.
_________________________________

ORDER *
_________________________________

This matter is before the court on the appellees Status Report and the Plaintiffs-

Appellants Status Report. The appellees suggest that future status reports should be

scheduled out 60 days, while the appellants ask only for 15 more days.

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the court has
substituted Thomas Price, Edward Hugler, and Steven Mnuchin as the current public
office holders in place of the public officials named in previous captions.
Case: 14-20112 Document: 00513964561 Page: 16 Date Filed: 04/24/2017

Appellate Case: 13-1540 Document: 01019780683 Date Filed: 03/16/2017 Page: 4

Upon consideration, and at the direction of the court, the parties shall file

simultaneous status reports on May 15, 2017. If circumstances warrant advice to the court

earlier than May 15, the parties may file status reports sooner describing what events

have occurred and suggesting how those events should impact future proceedings in this

appeal.

Entered for the Court


ELISABETH A. SHUMAKER, Clerk

by: Lara Smith


Counsel to the Clerk