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Case: 14-20112 Document: 00513961352 Page: 1 Date Filed: 04/20/2017

No. 14-20112

IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT

EAST TEXAS BAPTIST UNIVERSITY; HOUSTON BAPTIST


UNIVERSITY,

Plaintiffs Appellees

WESTMINSTER THEOLOGICAL SEMINARY,

Intervenor Plaintiff Appellee

v.

THOMAS EDMUNDS PRICE, in his official capacity as Secretary


of the United States Department of Health and Human Services;
EDWARD HUGLER, in his official capacity as Acting Secretary of
the United States Department of Labor; STEVEN TERNER
MNUCHIN, in his official capacity as Secretary of the United States
Department of Treasury; UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF
TREASURY,

Defendants Appellants
--------------------------------------
Consolidated with 14-10241

UNIVERSITY OF DALLAS,

Plaintiff Appellee

v.

THOMAS EDMUNDS PRICE, in his official capacity as Secretary


of the United States Department of Health and Human Services;
Case: 14-20112 Document: 00513961352 Page: 2 Date Filed: 04/20/2017

EDWARD HUGLER, in his official capacity as Acting Secretary of


the United States Department of Labor; STEVEN TURNER
MNUCHIN, in his official capacity as Secretary of the United States
Department of Treasury; UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF
TREASURY,

Defendants Appellants
----------------------------------------------
consolidated w/ 14-40212

CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES


OF SOUTHEAST TEXAS, INCORPORATED,

Plaintiffs Appellees

v.

THOMAS EDMUNDS PRICE, in his official capacity as Secretary


of the United States Department of Health and Human Services;
EDWARD HUGLER, in his official capacity as Acting Secretary of
the United States Department of Labor; STEVEN TURNER
MNUCHIN, in his official capacity as Secretary of the United States
Department of Treasury; UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF
TREASURY,

Defendants Appellants
------------------------------------------------
consolidated w/ 14-10661

CATHOLIC CHARITIES, DIOCESE OF FORT WORTH,


INCORPORATED,

Plaintiff Appellee
Case: 14-20112 Document: 00513961352 Page: 3 Date Filed: 04/20/2017

v.

THOMAS EDMUNDS PRICE, in his official capacity as Secretary


of the United States Department of Health and Human Services;
EDWARD HUGLER, in his official capacity as Acting Secretary of
the United States Department of Labor; STEVEN TURNER
MNUCHIN, in his official capacity as Secretary of the United States
Department of Treasury; UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF
TREASURY,

Defendants Appellants.
Case: 14-20112 Document: 00513961352 Page: 4 Date Filed: 04/20/2017

APPELLEES STATUS REPORT AND REQUEST TO


RECOMMENCE LITIGATION IN APPEAL NO. 14-20112

It has been more than eleven months since the Supreme Court

vacated and remanded this appeal to this Court. During that

interval, there has been a presidential election, a new President

inaugurated, both a new Attorney General and a new Secretary of

Health and Human Services sworn in, and a new Supreme Court

Justice confirmed by the Senate. There have also been four orders

issued by this Court continuing the stay of this appeal, No. 14-

20112. The governments position in this case has also changed

dramaticallyboth before and after the events described abovein

ways that make any continuation of the governments appeal

untenable. It is now high time for the Department of Justice to

admit defeat and dismiss this appeal. This Court should therefore

allow the current stay to expire as scheduled on April 24.

Once the stay ends, Appellees East Texas Baptist University

(ETBU) and Houston Baptist University (HBU) intend to move

the Court to summarily affirm the district court based on

thoroughgoing changes the government made to its litigation

position after this Court issued its now-vacated ruling in this

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Case: 14-20112 Document: 00513961352 Page: 5 Date Filed: 04/20/2017

appeal. We provide below an overview of these changes in the

governments litigation position.

Multiple Concessions at the Supreme Court. At the Supreme

Court, the Solicitor General drastically changed the governments

position on key arguments and factual assertions that appellants

had made in their filings in this and many other Courts of Appeals.

See generally Mark L. Rienzi, Fool Me Twice: Zubik v. Burwell and

the Perils of Judicial Faith in Government Claims, 2016 Cato S. Ct.

Rev. 123, 132-42, https://object.cato.org/sites/cato.org/files/serials/

files/supreme-court-review/2016/9/2016-supreme-court-review-

chapter-5.pdf.

For example, throughout the litigation in this Court and the

other Courts of Appeals, the government relied heavily on its

assertion that contraceptive coverage provided under the

accommodation would be entirely separate from Appellees

employee plans.1 Relying on that representation, this Court held

1 Opening Br. 2 (It is quite another thing to urge that the


government may not ensure that women have access to separate
coverage through third parties); Opening Br. 6, 11, 15, 16, 20, 25,
32, 41 (separate payments); Opening Br. 13, 16 (separate

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that Appellees religious beliefs were not substantially burdened

because they misunderstand the role of their actions and what

their contracts cover. E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449,

461 (5th Cir. 2015) (the government is requiring the insurers and

third-party administrators to offer itseparately from the plans

despite the plaintiffs opposition.).

But the Department of Justice eventually told the Supreme

Court the exact opposite. Specifically, the Department of Justice

said that the accommodation requires contraceptive coverage to be

part of the same plan as the coverage provided by the employer.

Br. for the Respts at 38, Zubik v. Burwell, 136 S. Ct. 1557 (2016)

(No. 1418) (quotations omitted). This central concession may have

been why the government gave up entirely on its substantial

burden arguments before the Supreme Court. See Tr. of Oral Arg.

at 61, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No. 141418)

materials distributed to employees); Opening Br. 20 (independent


provision of contraceptive coverage); Reply Br. 1 (the government
will independently require third parties to provide coverage);
Reply Br. 6 (the government then arranges for independent
coverage); Reply Br. 7 (separate coverage); Reply Br. 11
(separate payments).

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(Solicitor General would be content if the Court would assume a

substantial burden and rule only on the governments strict

scrutiny affirmative defense).

Next, the government made concessions that fatally undermined

its strict scrutiny affirmative defense. The Department of Justice

admitted to the Supreme Court that it doesnt matter where the

contraceptive coverage comes from and that women who do not

receive contraceptive coverage from their employer can ordinarily

get it from a family members employer, an Exchange, or

another government program. Br. for the Respts at 65, Zubik v.

Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418). This was contrary to

what it said in this Court, where it described options outside of

Appellees plans as obstacles to obtaining contraceptive

coveragethe same obstacles faced by employees whose employers

are exempt from covering contraceptives for entirely secular

reasons. Reply Br. 24.

Finally, when the Supreme Court requested supplemental

briefing on the least restrictive means of achieving the

governments goals, the government acknowledged that the

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accommodation could be modified to avoid forcing religious

organizations to carry the coverage themselves, thus conceding its

least restrictive means argument. That resulted in the unanimous

order the Supreme Court issued that vacated and remanded this

Courts decision. Suppl. Br. for the Respts at 14-15, Zubik v.

Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418).

In short, the Department of Justice argued this appeal and the

parallel appeals one way in the Courts of Appeals and in another,

contradictory way in the Supreme Court.

Public positions that contradict litigation positions. The

changes in litigation position outlined above all occurred during the

Obama Administration and would by themselves be sufficient

reason to summarily affirm the district courts entry of final

judgment in this case. Of course, as of January 20, 2017, there is

also a new presidential administration and new public positions

related to this disputepositions that radically contradict the

Department of Justices prior litigation position.

For example, on January 20, 2017, President Trump issued

Executive Order No. 13765, which orders Defendant HHS to grant

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waivers and exemptions from requirements under the Affordable

Care Act (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
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.

Exec. Order 13765 of January 20, 2017, 82 Fed. Reg. 8351 (Jan. 24,

2017). 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, 2017more than two months agoDr.

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

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States Supreme Court that the Mandate violates RFRA. Dr. Prices

amicus brief in support of Appellees 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.

When an organization faces substantial penalties for


refusing to engage in conduct it sincerely believes is wrong,
its religious exercise is necessarily substantially
burdened.

Br. of Amici Curiae 207 Members of Congress 9-10, 27, 29, Zubik v.

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

35, 15-105, 15-119, 15-191). Given that Defendant Price has now

publicly taken this position, there is simply no way that he can

plausibly claim to this Court that the district court erred in

reaching the same conclusion.

Third, it is clear that Defendant Prices view of the contraceptive

mandate is shared by the President. President Trump has referred

to the contraceptive mandate as an onerous mandate and its

impact on religious organizations such as Appellees and the Little

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Sisters of the Poor as a hostility to religious liberty you will never

see in a Trump Administration. Letter from Donald J. Trump to

Catholic Leadership Conference, Oct. 5, 2016, available at

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

conference_letter.pdf. Furthermore, the President declared I will

make absolutely certain religious orders like [t]he Little Sisters of

the Poor are not bullied by the federal government because of their

religious beliefs. Id. Taken together, these positions are a

repudiation of the Department of Justices legal positions, which

have yet to catch up to the publicly-stated positions of its clients

leadership.

* * *

This litigation has gone on long enough. After five losses in a row

at the Supreme Court regarding the ill-starred contraceptive

mandate, it is time for the Department of Justice to move on, and

to allow the Court, the Universities, and other religious ministries

to move on as well.2 Doing so would require only that the

2 The government has asked the Supreme Court five times to


approve its mandate and allow it to fine religious objectors who

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Department dismiss the appeal voluntarily pursuant to Fed. R.

App. P. 42(b).

For these reasons, Appellees ETBU and HBU request that the

stay end as scheduled on April 24. Appellees also respectfully

suggest that the Court ask the Department of Justice to report to

the Court about whether the Departments clients still intend to

prosecute this appeal.

Respectfully submitted,

/s/ Eric Rassbach


Eric Rassbach
Diana Verm
The Becket Fund for
Religious Liberty
1200 New Hampshire Ave. NW,
Suite 700
Washington, DC 20036
(202) 955-0095
erassbach@becketlaw.org

refuse to comply; each time, the Justices have refused to do so and


have protected the religious objectors from fines. See Zubik v.
Burwell, 136 S. Ct. 1557 (2016); Zubik v. Burwell, 135 S. Ct. 2924
(2015); Wheaton College v. Burwell, 134 S. Ct. 2806 (2014); Burwell
v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Little Sisters of
the Poor Home for the Aged, Denver, Colorado v. Sebelius, 134 S. Ct.
1022 (2014).

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CERTIFICATE OF SERVICE

I certify that on April 20, 2017, I caused the foregoing to be

served electronically via the Courts electronic filing system on all

attorneys of record who have consented in writing to accept

electronic notice as service. All other case participants will be

served via the Courts electronic filing system as well.

/s/ Eric C. Rassbach


Eric C. Rassbach
Attorney for Plaintiffs-Appellees
East Texas Baptist University
and Houston Baptist University

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CERTIFICATE OF COMPLIANCE

1. This motion complies with the typeface requirements of Fed.


R. App. P. 32(a)(5) and the type-style requirements of Fed. R.
App. P. 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Office Word
2016 in Century Schoolbook 14-point font.

2. Pursuant to this Courts guidelines on the use of the CM/ECF


system, I hereby certify that:

a. all required privacy redactions have been made;

b. the hard copies submitted to the Clerks Office are exact


copies of the ECF filing; and

c. the ECF submission was scanned for viruses with the


most recent version of Kaseya Antivirus and, according
to the program, is free of viruses.

/s/ Eric C. Rassbach


Eric C. Rassbach
Attorney for Plaintiffs-Appellees
East Texas Baptist University
and Houston Baptist University

Dated: April 20, 2017

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