Posts Tagged ‘ripeness’

A prior episode in RFRA history suggests why it would be imprudent for federal courts to dismiss the pending RFRA claims against the Obama Administration’s contraceptives mandate without the benefit of oral argument. The long and short of this prior episode is that the need to take a clear litigation position on a RFRA matter brought about one of the quickest reversals of an Administration’s legal position in the last few decades. It happened when the presidency was held by a former constitutional law professor–in the Clinton Administration.

The case was Christians v. Crystal Evangelical Church. The Clinton Administration needed to address how the RFRA, then a relatively new statute of uncertain constitutionality (it was signed early in the Clinton presidency), interacted with a provision of the bankruptcy code authorizing a bankruptcy trustee to claw back transfers made in a period leading up to the declaration of bankruptcy. The issue was posed when a bankruptcy trustee (Christians) successfully clawed back thousands of dollars that had been donated over the course of the prior year to a church (Crystal Evangelical Church). When the decision allowing this clawback was appealed to the Eighth Circuit, the Clinton Administration intervened to take a position on the constitutionality of the RFRA and  the validity of the clawback provision as applied to donations to a church. The Administration filed a brief arguing that the RFRA was constitutional and that the clawback provision was valid as applied, notwithstanding RFRA; donations to the church should be considered just like donations to non-religious charities (which could be clawed back).

The Administration’s position in Crystal Evangelical led to substantial political and legal pushback. Among other things, Senator Orrin Hatch took to the Senate floor and denounced the Administration’s position. Senator Hatch’s position on the RFRA carried great weight, as he was a principal sponsor of the Act (along with Senator Kennedy). Senator Hatch argued that the position in the Clinton Administration’s amicus curiae brief was “contrary to the plain meaning of the act, to the detriment of religious free­dom.” He asserted that, “[d]espite the act’s widespread support and its clearly defined and agreed upon objective, its purpose is being un­dermined by this administration.” Expounding further, Senator Hatch stated:

Perhaps  this is the kind of limited protection President Clinton envisioned when he  committed himself to the protection of one of the most precious of all-Amer­ican liberties—religious freedom—but I can say quite confidently that this is not the type of protection Congress fought so hard and so long to restore. The Department’s position is a slap in  the face to our religious community, and it should not stand. I personally believe that President Clinton must not know what they are doing, or he would put a stop to it. So, in a sense, it is a slap in his face, as well, since he was one of the strongest supporters of what we were trying to do. I hope that he will get involved and direct the Department to back off—especially since there is no fraud here— and allow the Religious Freedom Res­toration Act to have the widespread, broad coverage that we intended here in Congress in the first place.

The Clinton Administration decided to take a closer look at its position. DOJ lawyers sent to the White House to describe the Administration’s position to counsel at the White House found themselves meeting with President Clinton himself. (Seth Waxman recounts this meeting and its significance to his later work as SG in this BYU Law Review article.) Some time later, the responsible DOJ lawyers were told by the White House that the President had decided that the position taken in the brief was wrong and that the brief should be withdrawn. This took place the night before oral argument. The career DOJ lawyer to argue the appeal did not find out until the morning of oral argument.

The posture of the Crystal Evangelical Church case is far different from the contraceptives mandate litigation. But in that current RFRA litigation, like in Crystal Evangelical Church, taking a position in court could prompt a  harder look at the Administration’s position on a legal question. The benefit of bringing the federal government into court for argument is to force anticipation of having to answer questions in open court. And the need to formulate clear answers can stimulate a clarification or even a change of opinion.

Clarification is certainly needed in the contraceptives mandate litigation. In February, the Administration finalized its rule limiting exemption from the contraceptives-without-cost sharing mandate for insurance coverage to a narrow band of religious employers. But the Administration also announced that it would develop an accommodation for non-exempt employers with religious objections. Based on this promised future accommodation (and accompanying one-year safe harbor from government enforcement of the contraceptives mandate against non-exempt employers), the federal government has moved to dismiss several challenges to the mandate.

A federal judge in D.C. last week dismissed Belmont Abbey College’s challenge to the HHS contraceptives mandate on standing and ripeness grounds. On standing, Judge Boasberg held that Belmont Abbey’s injury was speculative because the contraceptives mandate remains a moving target. On ripeness, Judge Boasberg reasoned that the challenged rule was not sufficiently final to render the dispute fit for judicial resolution.

The Becket Fund for Religious Liberty, which is representing Belmont Abbey, filed a motion for reconsideration of that dismissal yesterday. It was not until I read the motion that I realized that Judge Boasberg had dismissed the case without hearing oral argument on the government’s motion to dismiss. I think that was a mistake. Here is the first question that the federal government should be brought into court to answer: Will Belmont Abbey College’s health plans be exempt from the contraceptives mandate, or will they not?

The government’s position has been wonderfully ambiguous on this most critical question. The final regulations adopted in February 2012 continue to divide the world of employers subject to the contraceptives mandate into two categories: exempt and non-exempt. Belmont Abbey College is in the non-exempt category, and it seeks to vindicate statutory and constitutional claims that, if successful, would render it exempt. The government has proposed to “accommodate” non-exempt religious objectors like Belmont Abbey College. Yet these objectors seek what has already been denied them in the final regulations: exemption. In its advanced notice of proposed rulemaking, the federal government has claimed that its proposed accommodation would be effectively like an exemption. But what does that mean, especially when coupled with the final adoption of a regulation that classifies objectors like Belmont Abbey College as “non-exempt”? Yet another question that the government should have to answer in open court.

And there are others. Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption? The answers to these and other questions would be helpful to a court deciding the ripeness of non-exempt employers’ claims.

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Last Friday, the Fourth Circuit dismissed as non-justiciable the appeal of a judgment in a challenge to potential improvements to specific sections of I-81. Judge Wilkinson wrote the opinion for the Court in Shenandoah Valley Network v. Capkawhich was joined in by Judge King and Judge Keenan. The I-81 improvement project will take place in two tiers. This litigation arose at the end of Tier 1, before Tier 2 had run its course. The nub of the dispute was the extent to which decisions made at Tier 1 would foreclose consideration of alternatives at Tier 2. The court concluded that the appellants were mistaken about the extent of foreclosure at Tier 2. The court was satisfied that, once the parties’ positions were clear, there was no actual dispute giving rise to a case or controversy. Accordingly, dismissal was warranted: “Because such [an actual] dispute is lacking here–and because we cannot issue an advisory opinion–we have no authority to adjudicate this suit.” The court also cashed out its justiciability conclusion in standing terms: There was no injury or threat of imminent injury.

One interesting feature of the decision comes in a footnote at the end, in which the court notes that it would not order vacatur of the district court’s judgment: “The gist of the district court’s ruling is that the review process should be allowed to move beyond Tier 1 to Tier 2. Because vacatur is an equitable remedy, U.S. Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513 U.S. 18, 29 (1994), and because the balance of factors reveals no good reason to vacate the district court’s ruling, we decline to do so.” This reasoning, and the court’s careful phrasing of the justiciability problem (i.e., “there remains nothing to dispute” and “no justiciable controversy lingers”) suggests that the justiciability problem was not a pure standing issue, but some combination of mootness (of claims about Tier 1) and ripeness (of claims about Tier 2) .

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Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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