United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss [Docket No. 9] and Plaintiff's Motion to Strike
Defendants' Motion to Dismiss [Docket No. 11].
Jessica Campbell is a female teacher who receives health
insurance through her employer, Colorado Academy. Docket No.
1 at 3, ¶¶ 7-8. She uses hormonal medications for
birth control and for non-contraceptive medical purposes,
including the prevention of ovarian cysts. Id.,
¶¶ 8, 10.
challenges two interim final rules (the “Rules”)
issued by the Departments of the Treasury, Labor, and Health
and Human Services on October 6, 2017: the Religious
Exemptions and Accommodations for Coverage of Certain
Preventive Services Under the Affordable Care Act, 82 Fed.
Reg. 47792, and the Moral Exemptions and Accommodations for
Coverage of Certain Preventive Services Under the Affordable
Care Act, 82 Fed. Reg. 47838. Docket No. 1 at 1-2, ¶ 1.
As relevant here, these Rules allow employers to seek
exemptions based on religious and moral objections from
requirements that the employers cover certain women's
healthcare services, including hormonal birth control.
October 13, 2017, plaintiff filed her complaint, seeking a
declaration that the Rules violate her rights under the
Constitution and were implemented in violation of the
Administrative Procedures Act (“APA”), 5 U.S.C.
§ 551, et seq. Docket No. 1 at 11, ¶ 2-4. She also
seeks an injunction barring enforcement of the Rules.
Id., ¶ 5. On December 18, 2017, defendants
filed their motion to dismiss, arguing that the Court should
dismiss this case because plaintiff lacks Article III
standing. Docket No. 9 at 1. On January 7, 2018, plaintiff
moved to strike defendants' motion on the ground that it
was untimely. Docket No. 11 at 1.
MOTION TO STRIKE
motion to strike is frivolous. It is well established that a
“litigant generally may raise a court's lack of
subject-matter jurisdiction at any time.” Kontrick
v. Ryan, 540 U.S. 443, 455 (2004) (citing Capron v.
Van Noorden, 6 U.S. 126, 127 (1804); Mansfield, C.
& L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884);
Fed. Rule Civ. Proc. 12(h)(3)); see also City of
Albuquerque v. Soto Enterprises, Inc., 864 F.3d 1089,
1093 (10th Cir. 2017) (“[B]ecause parties cannot waive
subject-matter jurisdiction, they can challenge it ‘at
any time prior to final judgment.'” (quoting
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S.
567, 571 (2004))). Thus, defendants' challenge to the
Court's jurisdiction on the basis that plaintiff lacks
standing is not untimely and the Court will deny
bears the burden of establishing standing. Colorado
Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 544
(10th Cir. 2016) (citing Raines v. Byrd, 521 U.S.
811, 818 (1997)). To carry this burden, plaintiff must show
(1) an injury in fact, (2) a sufficient causal connection
between the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable
decision. Id. at 543. In order to show an injury in
fact, plaintiff must show that she has suffered an
“invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (citations and
internal quotation marks omitted); see also Summers v.
Earth Island Inst., 555 U.S. 488, 493 (2009).
argue that plaintiff cannot show an injury in fact because
her allegations do not establish a likelihood of imminent
injury related to the Rules. Docket No. 9 at 8-12. In
particular, defendants argue that the most that can be
inferred from allegations in plaintiff's complaint is a
“speculative implication that her employer might, at an
unknown point in the future, take advantage of the new
exemptions” in the Rules. Id. at 8. Defendants
point out that plaintiff makes no allegations that her
employer actually holds the sort of beliefs that would
support an exemption under the Rules from the duty to cover
contraceptives and that her employer has publicly stated that
it does not anticipate changes to benefits based on the
Rules. Id. at 8-9 (citing Kirk Mitchell, Denver
Teacher Sues Trump Claiming Contraception Rules Violate
Women's Rights, Denver Post (Oct. 13, 2017), Docket
No. 9-2 at 2-4).
response, plaintiff argues that she has suffered
“procedural injury” under the APA. Docket No. 12
at 7, 9. This contention is irrelevant to whether plaintiff
has Article III standing. See Lujan, 504 U.S. at
572. Even if plaintiff can show that a procedural requirement
of the APA was violated, she must show that “disregard
of [the requirement] could impair a separate concrete
interest of [hers]” to establish Article III standing.
plaintiff analogizes her circumstances to two decisions where
the courts found that similar plaintiffs had standing:
Pennsylvania v. Trump, 281 F.Supp.3d 553 (E.D. Pa.
2017), and California v. Health & Human Servs.,
281 F.Supp.3d 806, 822 (N.D. Cal. 2017). Docket No. 12 at 11.
In each of these cases the plaintiffs showed that their
direct pecuniary interests were likely to be affected by the
Rules. Pennsylvania, 281 F.Supp.3d at 567
(“The [Rules] will likely inflict a direct injury upon
the Commonwealth by imposing substantial financial burdens on
State coffers.”); California, 281 F.Supp.3d at
822 (“Rather, [the plaintiffs] have shown that the
[Rules] will impact their fiscs in a manner that corresponds
with the [Rules'] impact on their citizens' access to
contraceptive care.”). By contrast, plaintiff does not
point to any factual allegations in her complaint that would
support an inference that her health insurance coverage for
contraception is likely to change in any way based on the
Rules. See Docket No. 12 at 7. Plaintiff alleges
that she receives health insurance through her employer and
needs contraceptives for medical reasons. She relies on her
health insurance for its coverage of such treatment.
Plaintiff alleges that the Rules “fail to ensure . . .
access to required coverage” and that she is
“extremely vulnerable to substantial health, safety,
economic, and social harms from loss of access to essential
contraceptive care and coverage.” Docket No. 1 at 6-7,
¶ 27. Plaintiff argues that, because of the Rules, she
must “go to bed each night knowing the next day her
employer could withdraw necessary medical coverage.”
Docket No. 12 at 6.
“fears of hypothetical future harm that is not
certainly impending” are insufficient to create Article
III standing. Clapper v. Amnesty Int'l USA, 568
U.S. 398, 416 (2013). There are no factual allegations in the
complaint that support an inference that injury to plaintiff,
economic or otherwise, is “actual and imminent”
as required to constitute an injury in fact under Article III
standing principles. Summers v. Earth Island Inst.,
555 U.S. 488, 493 (2009) (citing Friends of Earth, Inc.
v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167, 180-181 (2000)). As a result, the Court finds that she
does not have ...