Amicus Curiae Brief — Little Sisters of the Poor Saints Peter and Paul Home, Petitioner v. Pennsylvania, et al.
Supreme Court briefApr 8, 2020
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Nos. 19-431, 19-454
IN THE
LITTLE SISTERS OF THE POOR
SAINTS PETER AND PAUL HOME, Petitioner,
V.
THE COMMONWEALTH OF PENNSYLVANIA AND
THE STATE OF NEW JERSEY, ET AL., Respondents.
DONALD J. TRUMP, PRESIDENT OF
THE UNITED STATES, ET AL., Petitioners,
v.
COMMONWEALTH OF PENNSYLVANIA, ET AL.,
Respondents.
On Writs of Certiorari to the United States
Court of Appeals for the Third Circuit
BRIEF FOR ADMINISTRATIVE LAW SCHOLARS
AS AMICI CURIAE IN SUPPORT OF
RESPONDENTS
April 8, 2020
Elliott Schulder
Counsel of Record
Anna Kraus
Laura Dolbow
Alexander N. Ely
Alexander L. Schultz
COVINGTON & BURLING LLP
850 Tenth Street, N.W.
Washington, DC 20001
(202) 662-6000
eschulder@cov.com
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
INTEREST OF THE AMICI CURIAE ...................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT .................................................... 3
ARGUMENT .............................................................. 6
I.
II.
The 2017 Rules Were Procedurally
Invalid. ............................................................. 6
A.
The agencies did not have good
cause to forego notice and
comment. ............................................... 8
B.
The agencies did not have
statutory authorization to issue
the 2017 Rules without notice
and comment. ...................................... 12
The Procedural Errors Infecting the
2017 Rules Render the Essentially
Identical 2018 Rules Similarly Invalid. ........ 15
A.
An agency that deviates from the
APA’s prescribed procedures by
frontloading rulemaking and
tacking on comment as an
afterthought has not given the
public a meaningful “opportunity
to participate in the rule
making.” .............................................. 15
ii
B.
An agency that violates section
553 must establish it maintained
an “open mind” when considering
post-promulgation comments or
have its rule vacated, irrespective
of whether the agency swiftly repromulgates the same rule. ................ 20
C.
The agencies did not provide a
meaningful opportunity to
comment on the 2018 Rules................ 27
CONCLUSION ......................................................... 32
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Advocates for Highway & Auto Safety v.
Fed. Highway Admin.,
28 F.3d 1288 (D.C. Cir. 1994) ............ 19, 22, 24, 25
Air Transp. Ass’n of Am. v. Dep’t of
Transp.,
900 F.2d 369 (D.C. Cir. 1990) ............ 16, 19, 24, 25
Am. Bus. Ass’n v. United States,
627 F.2d 525 (D.C. Cir. 1980) ................................ 7
Asiana Airlines v. FAA,
134 F.3d 393 (D.C. Cir. 1998) .............................. 13
Ass’n of Data Processing Serv. Orgs.,
Inc. v. Bd. of Governors,
745 F. 2d 677 (D.C. Cir. 1984) ............................... 8
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) .................................... 15, 22
Bell Aerospace Co. Div. of Textron Inc. v.
NLRB,
475 F.2d 485 (2d Cir. 1973), rev’d in
part on other grounds, 416 U.S. 267
(1974) .................................................................... 11
Burks v. United States,
633 F.3d 347 (5th Cir. 2011) ................................ 16
California v. HHS,
281 F. Supp. 3d 806 (N.D. Cal. 2017) .................... 4
iv
Castillo-Villagra v. INS,
972 F.2d 1017 (9th Cir. 1992) .............................. 13
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ................................................ 7
Citizens to Pres. Overton Park, Inc. v.
Volpe,
401 U.S. 402 (1977) ................................................ 7
City of Waco v. EPA,
620 F.2d 84 (5th Cir. 1980) .................................. 20
Dia Nav. Co. v. Pomeroy,
34 F.3d 1255 (3d Cir. 1994) ................................... 6
Envtl. Defense Fund v. EPA,
716 F.2d 915 (D.C. Cir. 1983) .............................. 11
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) ................................................ 9
Fed. Express Corp. v. Mineta,
373 F.3d 112 (D.C. Cir. 2004) .............................. 21
Green Island Power Auth. v. FERC,
577 F.3d 148 (2d Cir. 2009) ................................. 26
Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives,
920 F.3d 1 (D.C. Cir. 2019) .................................. 21
Home Box Office, Inc. v. FCC,
567 F.2d 9 (D.C. Cir. 1977) .................................. 18
v
Irish 4 Reprod. Health v. Dep’t of Health
& Human Servs.,
2020 WL 248009 (N.D. Ind. Jan. 16,
2020) ............................................................... 30, 31
Levesque v. Block,
723 F.2d 175 (1st Cir. 1983) .............. 20, 21, 23, 24
Marcello v. Bonds,
349 U.S. 302 (1955) .......................................... 8, 13
McGarva v. United States,
406 U.S. 953 (1972) ........................................ 18, 26
McLouth Steel Prod. Corp. v. Thomas,
838 F.2d 1317 (D.C. Cir. 1988) ...................... 23, 26
Mid Continent Nail Corp. v. United
States,
846 F.3d 1364 (Fed. Cir. 2017) .................. 8, 10, 26
Mission Grp. Kan., Inc. v. Riley,
146 F.3d 775 (10th Cir. 1998) .............................. 16
Mobay Chem. Corp. v. Gorsuch,
682 F.2d 419 (3d. Cir. 1982) .................................. 9
N. Carolina Growers’ Ass’n, Inc. v.
United Farm Workers,
702 F.3d 755 (4th Cir. 2012) ................................ 16
N.J. Dep’t of Envtl. Prot. v. EPA,
626 F.2d 1038 (D.C. Cir. 1980) ............ 8, 18, 19, 22
NRDC v. EPA,
683 F.2d 752 (3d Cir. 1982) ........................... 19, 28
vi
NRDC v. NHTSA,
894 F.3d 95 (2d Cir. 2018) ................................... 16
Nw. Tissue Ctr. v. Shalala,
1 F.3d 522 (7th Cir. 1993) .................................... 16
Paulsen v. Daniels,
413 F.3d 999 (9th Cir. 2005) ................................ 26
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015) ................................................ 15
Prometheus Radio Project v. FCC,
652 F.3d 431 (3d Cir. 2011) ....................... 6, 16, 30
Rural Cellular Ass’n v. FCC,
588 F.3d 1095 (D.C. Cir. 2009) ...................... 16, 22
Safe Air For Everyone v. EPA,
488 F.3d 1088 (9th Cir. 2007) .............................. 16
Sharon Steel Corp. v. EPA,
597 F.2d 377 (3d Cir. 1979) ..................... 16, 18, 20
Shinseki v. Sanders,
556 U.S. 396 (2009) ........................................ 23, 26
Sugar Cane Growers Co-op. of Fla. v.
Veneman,
289 F.3d 89 (D.C. Cir. 2002) .......................... 24, 26
U.S. Steel Corp. v. EPA,
595 F.2d 207 (5th Cir. 1979) ................................ 19
United States v. Brewer,
766 F.3d 884 (8th Cir. 2014) .......................... 22, 30
vii
United States v. Dean,
604 F.3d 1275 (11th Cir. 2010) ............................ 10
United States v. Gould,
568 F.3d 459 (4th Cir. 2009) ................................ 10
United States v. Johnson,
632 F.3d 912 (5th Cir. 2011) ................................ 10
United States v. Reynolds,
710 F.3d 498 (3d Cir. 2013) ......................... passim
United States v. Valverde,
628 F.3d 1159 (9th Cir. 2010) .............................. 10
Wong Yang Sung v. McGrath,
339 U.S. 33 (1950) ................................................ 12
STATUTES
5 U.S.C. 553 ....................................................... passim
5 U.S.C. 559 ....................................................... 5, 8, 12
5 U.S.C. 706 ............................................................... 26
26 U.S.C. 9815(a)(1) .................................................. 12
26 U.S.C. 9833 ........................................................... 13
29 U.S.C. 1191c ......................................................... 13
42 U.S.C. 300gg-13(a).................................................. 3
42 U.S.C. 300gg-92 .................................................... 13
viii
Coronavirus Aid, Relief, and Economic
Security Act of 2020 ............................................. 14
Employee Retirement Income Security
Act of 1974 (ERISA), 29 U.S.C. 1001
et seq. .................................................................... 12
Health Insurance Portability and
Accountability Act of 1996 (HIPAA) ................... 13
Patient Protection and Affordable Care
Act, 42 U.S.C. 18001 et seq. ................................... 3
Public Health Service Act, 42 U.S.C.
201 et seq. ............................................................. 12
OTHER AUTHORITIES
82 Fed. Reg. 47,792 (Oct. 13, 2017) ............................ 3
82 Fed. Reg. 47,838 (Oct. 13, 2017) ............................ 3
83 Fed. Reg. 57,592 (Nov. 15, 2018) ........................... 4
Kristin E. Hickman & Mark Thomson
Open Minds and Harmless Errors:
Judicial Review of Postpromulgation
Notice and Comment, 101 Cornell L.
Rev. 261 .......................................................... 23, 24
1
INTEREST OF THE AMICI CURIAE 1
Amici are professors of administrative law and
related public law subjects at institutions across the
United States. Amici have extensive experience
studying and teaching the Administrative Procedure
Act and doctrines of administrative law, including
the doctrines implicated by this case. They share a
scholarly interest in the proper application of
procedural and substantive limits on federal agency
action. With this brief, they seek to bring to the
Court’s attention settled principles of administrative
law that are central to the resolution of this appeal.
Amici submit this brief solely on their own behalf
and not as representatives of their universities.
Amici are listed below, with institutional affiliations
provided for purposes of identification only.
Nicole Huberfeld
Professor of Health Law, Ethics & Human
Rights, Department of Health Law, Policy &
Management
Boston University School of Public Health
Professor of Law
Boston University School of Law
1 Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other
than amici or their counsel made any monetary contributions
intended to fund the preparation or submission of this brief.
The parties filed blanket consents to the filing of amicus briefs.
2
Jerry L. Mashaw
Sterling Professor of Law Emeritus and
Professorial Lecturer
Yale Law School
Alan B. Morrison
Lerner Family Associate Dean for Public
Interest & Public Service Law,
George Washington University Law School
Joshua I. Schwartz
E.K. Gubin Professor of Law
George Washington University Law School
Peter M. Shane
Jacob E. Davis and Jacob E. Davis II Chair in
Law
The Ohio State University, Moritz College of
Law
Jay Wexler
Professor of Law
Boston University School of Law
3
INTRODUCTION AND SUMMARY OF
ARGUMENT
The Patient Protection and Affordable Care Act
(ACA), 42 U.S.C. 18001 et seq., requires certain
health plans and health-insurance issuers that offer
group or individual health coverage to provide
coverage for preventive services, including women’s
preventive care. See 42 U.S.C. 300gg-13(a). Various
religious entities and private parties have objected to
this statutory requirement on the ground that it
contravenes their sincerely-held religious beliefs,
leading to extensive litigation and several rounds of
administrative rulemaking.
In October 2017, without undertaking notice-andcomment, the Health Resources and Services
Administration (HRSA), a component of the
Department of Health and Human Services (HHS),
issued two purported “Interim Final Rules”: the
Religious IFR and the Moral IFR (the 2017 Rules).
These rules expanded existing religious exemptions
to the ACA’s preventative services mandate beyond
churches and their auxiliaries to additional not-forprofit, educational, and for-profit entities that have
either sincere religious or moral objections to
supporting preventative healthcare services. See
Religious Exemptions and Accommodations for
Coverage of Certain Preventive Services Under the
Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13,
2017); Moral Exemptions and Accommodations for
Coverage of Certain Preventive Services Under the
Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 13,
2017).
4
Various legal challenges ensued, and the 2017
Rules were enjoined by the district court below, see
Pet.App. 101a–03a, and separately by the District
Court for the Northern District of California, see
California v. HHS, 281 F. Supp. 3d 806 (N.D. Cal.
2017).
Rather than withdraw the 2017 Rules,
however, the agencies replaced these rules with
virtually identical “Final Rules” in 2018 following a
period of notice-and-comment. See 83 Fed. Reg.
57,536; 83 Fed. Reg. 57,592 (Nov. 15, 2018) (the 2018
Rules).
In this case, neither the 2017 Rules nor the 2018
Rules were promulgated in a manner consistent with
the Administrative Procedure Act (APA). The APA’s
notice-and-comment
rulemaking
requirements
operate as the presumptive minimum for an
administrative agency tasked by Congress with
administering particular regulatory programs. The
APA’s notice-and-comment requirement facilitates
participatory
government
and
rational
decisionmaking.
While
notice-and-comment
rulemaking is subject to a “good cause” exception, 5
U.S.C. 553(b)(B), the circumstances here do not
qualify. Good cause cannot be shown based merely
on the agencies’ desire to resolve regulatory
uncertainty caused by litigation in lower federal
courts, nor did the agencies point to the type of
imminent harm needed to satisfy the good cause
standard.
A policy disagreement with a prior
administration, perfectly natural in administrative
law, is likewise insufficient to warrant skipping
notice and comment.
The other statutory provisions cited by the
Government do not support the agencies’ claim to
5
authority to dispense with accepted notice-andcomment procedures in promulgating the 2017
Rules. A subsequent statute can displace the APA’s
rulemaking requirements only “to the extent that it
does so expressly,” 5 U.S.C. 559, and here the
agencies point only to generic grants of discretionary
authority—not to statutory provisions that expressly
displace the APA.
Because the agencies did not have good cause or
statutory authorization to deviate from the APA’s
standard notice, then comment, then rule procedure,
the 2017 Rules were procedurally invalid. And the
2018 Rules are similarly invalid under 5
U.S.C. 553(c), because the agencies did not provide a
meaningful opportunity for the public “to participate
in the rule making.” Rather than seeking public
comment on whether the agencies should expand
religious exemptions and accommodations in the first
place, the agencies sought public comment on
whether
the
expanded
exemptions
and
accommodations should be continued.
And the
agencies, in simply
re-packaging and repromulgating an essentially identical rule after
accepting post-promulgation comments to the 2017
Rules, did not keep an open mind when considering
those comments. Because the post-promulgation
comment period fell far short of the “participat[ion]”
envisioned by the APA, the 2018 Rules were
promulgated in violation of section 553(c) and were
properly vacated by the Third Circuit below.
6
ARGUMENT
I.
The 2017
Invalid.
Rules
Were
Procedurally
The government maintains that the 2017 Rules
“were procedurally valid because they were expressly
authorized by statute and supported by good cause.”
Brief for Petitioners Donald J. Trump et al. at 13, No.
19-454 (March 2, 2020) (hereinafter “Gov’t Br”).
Neither assertion is correct.
The APA requires federal agencies to publish a
“[g]eneral notice of proposed rule making” in the
Federal Register and, after such notice, to “give
interested persons an opportunity to participate in
the rule making” through submission of comments,
views, or arguments. 5 U.S.C. 553(b), (c). Section
553 reflects Congress’s commitment to “public
participation and fairness to affected parties.” Dia
Nav. Co. v. Pomeroy, 34 F.3d 1255, 1265 (3d Cir.
1994) (quoting Batterton v. Marshall, 648 F.2d 694,
705 (D.C. Cir. 1980)).
The APA’s notice-and-comment procedure plays a
vital role both in providing for participatory
government
and
in
ensuring
rational
decisionmaking.
The
notice-and-comment
requirements “ensure fairness to affected parties” by
giving them “an opportunity to develop evidence in
the record to support their objections to the rule,”
and further improve governmental decisionmaking
by “ensur[ing] that agency regulations are tested via
exposure to diverse public comment” and by
“enhanc[ing] the quality of judicial review.”
Prometheus Radio Project v. FCC, 652 F.3d 431, 449
7
(3d Cir. 2011) (quoting Int’l Union, United Mine
Workers of Am. v. Mine Safety & Health Admin., 407
F.3d 1250, 1259 (D.C. Cir. 2005)). By adopting
notice-and-comment requirements in the APA,
Congress deliberately struck a compromise between
expediency on one hand and participation, thorough
consideration, and the rule of law on the other. See
Am. Bus. Ass’n v. United States, 627 F.2d 525, 528
(D.C. Cir. 1980) (explaining that the notice-andcomment procedure “was one of Congress’s most
effective and enduring solutions to the central
dilemma it encountered in writing the APA[:]
reconciling the agencies’ need to perform effectively
with the necessity that ‘the law must provide that
the governors shall be governed and the regulators
shall be regulated’” (quoting S. Doc. No. 248, 79th
Cong., 2d Sess. 244 (1946))).
Central to this compromise are due process
considerations for entities whose conduct may be
circumscribed by particular regulations under
consideration by the agency; for that reason, the APA
requires that “an agency shall afford interested
persons general notice of proposed rulemaking and
an opportunity to comment before a substantive rule
is promulgated.” Chrysler Corp. v. Brown, 441 U.S.
281 (1979); see also Citizens to Pres. Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416 (1977) (noting that a
“court must consider whether the [agency’s] decision
was based on a consideration of the relevant
factors”).
The
notice-and-comment
procedures
are
mandatory, subject to only a few limited exceptions
for statements of general policy; procedural,
organizational, and interpretive rules; or when “the
8
agency for good cause finds * * * that notice and
public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.” 5
U.S.C. 553(b)(B). However, “judicial review of a rule
promulgated under an exception to the APA’s noticeand-comment requirement must be guided by
Congress’s expectation that such exceptions will be
narrowly construed.” N.J. Dep’t of Envtl. Prot. v.
EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980); see also
Mid Continent Nail Corp. v. United States, 846 F.3d
1364, 1380 & n.12 (Fed. Cir. 2017) (“[E]xceptions to
notice-and-comment rulemaking under the APA are
narrowly
construed
and
only
reluctantly
countenanced.” (internal quotation marks omitted)
(citing cases from twelve circuit courts of appeals)).
Under the APA, an agency may also issue
substantive rules without prior notice and comment
if Congress has “expressly” authorized it to do so. 5
U.S.C. 559. Though Congress need not use magic
words to modify the APA’s requirements,
“[e]xemptions from the terms of the [APA] are not
lightly to be presumed.” Marcello v. Bonds, 349 U.S.
302, 310 (1955).
“[T]he import of the § 559
instruction is that Congress’s intent to make a
substantive change be clear.”
Ass’n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors, 745
F. 2d 677, 686 (D.C. Cir. 1984) (Scalia, J.).
A.
The agencies did not have good
cause
to
forego
notice
and
comment.
Petitioners invoke the “good cause” exception to
notice and comment under 5 U.S.C. 553(b), arguing
that “the uncertainty created by conflicting lower-
9
court decisions and ongoing litigation—as well as the
need to protect employers with sincere religious and
moral objections from potentially devastating
penalties—made a lengthy notice-and-comment
period ‘impracticable’ and ‘contrary to the public
interest.’” Gov’t Br. 42 (citing 82 Fed. Reg. at 47,813,
47,815).
These two proffered justifications—
efficiency, and a belief that the previous
administration’s balancing of the competing interests
of patients in need of medical treatment and
religious objectors was misaligned—plainly do not
constitute “good cause” for jettisoning the APA’s
default procedural requirements. Cf. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009)
(“An agency may not * * * depart from a prior policy
sub silentio or simply disregard rules that are still on
the books.”)
That the current administration disagrees with
its predecessor over certain matters of policy is not a
matter of serious debate, nor is it a matter of debate
that agency rulemaking may be subject to legal
challenge and may result in competing views in the
lower courts as the litigation runs its course. As the
Third Circuit has noted, if “good cause” could be
invoked any time these conditions were present and
any time an agency sought to eliminate legal
uncertainty about the scope of particular rules, it
“would have the effect of writing the notice and
comment requirements out of the statute.” United
States v. Reynolds, 710 F.3d 498, 510 (3d Cir. 2013).
In determining whether an agency has properly
invoked the APA’s good cause exception, the courts of
appeals are largely in accord that “the exception is to
be narrowly construed.” Mobay Chem. Corp. v.
10
Gorsuch, 682 F.2d 419, 426 (3d. Cir. 1982); see also
Mid Continent Nail Corp. v. United States, 846 F.3d
1364, 1380 & n.12 (Fed. Cir. 2017) (“E]xceptions to
notice-and-comment rulemaking under the APA are
narrowly
construed
and
only
reluctantly
countenanced.”). While legal uncertainty “does count
to some extent,” it “alone may not * * * establish[]
the good cause exception.” United States v. Dean,
604 F.3d 1275, 1280 (11th Cir. 2010). Instead, the
agency must demonstrate that promulgating a rule
without notice and comment is necessary to avoid
“harm caused by delay [that] is unique in a way that
warrants dispensing with notice and comment.”
Reynolds, 710 F.3d at 514.
Invocation of the good cause exception is
generally appropriate where imminent harm or a
genuine emergency might result from the agency’s
failure to act. See United States v. Gould, 568 F.3d
459, 470 (4th Cir. 2009) (concluding that agency had
good cause where delay “could reasonably be found to
put the public safety at greater risk,” in addition to
“need for legal certainty”); United States v. Valverde,
628 F.3d 1159, 1161 (9th Cir. 2010) (explaining that
agencies must demonstrate that dispensing with
notice and comment is necessary to avoid a “real
harm,” not a merely speculative one); cf. United
States v. Johnson, 632 F.3d 912, 929 (5th Cir. 2011)
(“[D]esire to provide immediate guidance, without
more, does not suffice for good cause.” (quoting
United States v. Cain, 583 F.3d 408, 421 (6th Cir.
2009))).
Here, Petitioners argue that good cause was
present because “[t]he agencies * * * sought to
protect the liberty of employers threatened with
11
devastating civil penalties for following their
religious and moral precepts.
Those interests
provide good cause.” Gov’t Br. 42. This assertion
amounts to nothing more than a belief that a
previous administration reached an incorrect
conclusion on a matter of policy, a belief that could
conceivably apply to every rule in the Federal
Register after a change in administration;
accordingly, such a policy disagreement alone cannot
be a valid justification for departing from the plain
text of the APA. See Envtl. Defense Fund v. EPA,
716 F.2d 915, 917, 920–21 (D.C. Cir. 1983) (finding it
“not at all reasonable for [the agency] to rely on the
good cause exception” simply because of “an alleged
pressing need to avoid industry compliance with
regulations that were to be eliminated.”). Especially
when the agency has “long been committed to a
position, it should be particularly sure that it has all
available information before adopting another, in a
setting where nothing stands in the way of a rulemaking proceeding except the [agency’s] congenital
disinclination to follow” the APA’s rulemaking
requirements. Bell Aerospace Co. Div. of Textron Inc.
v. NLRB, 475 F.2d 485, 497 (2d Cir. 1973) (Friendly,
J.), rev’d in part on other grounds, 416 U.S. 267
(1974).
The APA already provides a vehicle for enacting
regulatory changes when the agency believes them
warranted—and one that balances the need for
efficiency with the need for careful, rational
decisionmaking. The procedure is simple: give the
public notice, allow a meaningful opportunity to
comment, and then promulgate a rule. The
compromises that led to the enactment of the APA
12
demand compliance with those procedures, as noted
by Justice Jackson:
The [APA] * * * represents a long period
of study and strife; it settles longcontinued and hard-fought contentions,
and enacts a formula upon which
opposing social and political forces have
come to rest * * * * [I]t would be a
disservice to our form of government
and to the administrative process itself
if the courts should fail, so far as the
terms of the Act warrant, to give effect
to its remedial purposes where the evils
it was aimed at appear.
Wong Yang Sung v. McGrath, 339 U.S. 33, 40–41
(1950) (Jackson, J.).
B.
The agencies did not have statutory
authorization to issue the 2017
Rules without notice and comment.
Petitioners also argue that subsequent statutes
enacted by Congress provide them with “express[]”
authority to supersede the APA’s notice and
comment requirements. 5 U.S.C. 559. As noted by
the district court below, “in order to authorize an
agency to bypass notice and comment, a subsequent
statute must be clear that it abrogates the APA.”
Pet.App. 71a.
Specifically, petitioners cite identical provisions of
the Public Health Service Act (PHSA), 42 U.S.C. 201
et seq., the Employee Retirement Income Security
Act of 1974 (ERISA), 29 U.S.C. 1001 et seq., and the
Internal Revenue Code, see 26 U.S.C. 9815(a)(1),
13
which authorize the agencies to “promulgate such
regulations as may be necessary or appropriate to
carry out the [specified statutes],” and also to
“promulgate any interim final rules as the Secretary
determines are appropriate.” 42 U.S.C. 300gg-92; 29
U.S.C. 1191c; 26 U.S.C. 9833. These three provisions
were enacted as part of the Health Insurance
Portability and Accountability Act of 1996 (HIPAA).
See Pub. L. No. 104-191, §§ 101, 102, 401, 110 Stat.
1936, 1951, 1976, 2032 (1996).
To argue that a general grant of authority to an
agency to “promulgate such regulations as may be
necessary” or to “promulgate any interim final rules
as the Secretary determines are appropriate”
qualifies as an affirmative grant of authority to
dispense with APA notice-and-comment rulemaking
strains credulity. The APA itself “provides that no
subsequent statute shall be deemed to modify it
‘except to the extent that it does so expressly.’”
Castillo-Villagra v. INS, 972 F.2d 1017, 1025 (9th
Cir. 1992) (quoting 5 U.S.C. 559); see also Marcello v.
Bonds, 349 U.S. 302, 310 (1955) (“Exemptions from
the terms of the Administrative Procedure Act are
not lightly to be presumed”).
The statutory language invoked by Petitioners
contains no express grant of authority for the
agencies to depart at will from the APA’s established
rulemaking procedures. Nor can Petitioners show
that in these three statutes, “Congress has
established procedures so clearly different from those
required by the APA that it must have intended to
displace the norm.” Asiana Airlines v. FAA, 134 F.3d
393, 397 (D.C. Cir. 1998).
Were Petitioners’
argument correct here, agencies could bypass notice
14
and comment rulemaking altogether—a drastic
result that does not find purchase in the text of the
statutes they cite.
When Congress wishes to dispense with the
requirement that a particular agency comply with
the strictures of the APA, it knows how to say so
expressly. To take one very recent example, the
Coronavirus Aid, Relief, and Economic Security Act
of 2020 contains a provision, section 505G(b), that
grants HHS (one of the agencies whose actions are at
issue in this case, no less) the authority to “issue an
administrative order determining whether there are
conditions under which a specific drug, a class of
drugs, or a combination of drugs, is determined to be
* * * generally recognized as safe and effective”
under other provisions of the statute. Id.
The Act further provides, in a subsection titled
“INAPPLICABILITY OF NOTICE AND COMMENT
RULEMAKING AND OTHER REQUIREMENTS,”
that “[t]he requirements of [section 505G](b) shall
apply with respect to orders issued under this section
instead of the requirements of subchapter II of
chapter 5 of title 5, United 2 States Code,” id.
subsection (p)—that is, it expressly displaces the
Administrative Procedure Act. The statutes cited by
the agencies here do not.
15
II.
The Procedural Errors Infecting the 2017
Rules Render the Essentially Identical
2018 Rules Similarly Invalid.
A.
An agency that deviates from the
APA’s prescribed procedures by
frontloading
rulemaking
and
tacking
on
comment
as
an
afterthought has not given the
public a meaningful “opportunity
to participate in the rule making.”
The APA “prescribes a three-step procedure for
so-called ‘notice-and-comment rulemaking.’” Perez v.
Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). First,
an agency must issue a “[g]eneral notice of proposed
rule making.” 5 U.S.C. 553(b). Second, it must “give
interested persons an opportunity to participate in
the rule making through submission of written data,
views, or arguments.” Id. § 553(c). Finally, “[a]fter
notice” and “[a]fter consideration of the relevant
matter presented” in the received comments, the
agency may promulgate a rule.
Id. (emphases
added).
Undertaking
these
procedures—in
this
sequence—is no mere formality.
“Notice and
comment gives affected parties fair warning of
potential changes in the law and an opportunity to
be heard on those changes—and it affords the agency
a chance to avoid errors and make a more informed
decision.” Azar v. Allina Health Servs., 139 S. Ct.
1804, 1816 (2019). For precisely those reasons of
avoiding error and ensuring rational decisionmaking,
“the opportunity to participate in the rule making,” 5
16
U.S.C. 553(c), “must be a meaningful opportunity,”
Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1101
And an
(D.C. Cir. 2009) (emphasis added). 2
opportunity for comment is not “meaningful” unless
the agency “remain[s] sufficiently open-minded”
during the comment process. Rural Cellular, 588
F.3d at 1101; see also, e.g., Pet.App. 30a (a
“meaningful opportunity” means “interested parties
[can] share their views, and * * * have the agency
consider them with an open mind.” (internal
quotations and citations omitted)).
To ensure an open-minded agency and preserve
the meaningful opportunity for comment, the federal
courts “strictly enforce” the APA’s imperative “that
notice and an opportunity for comment * * * precede
rule-making.” Air Transp. Ass’n of Am. v. Dep’t of
Transp., 900 F.2d 369, 379 (D.C. Cir. 1990) (quoting
N.J. Dep’t of Envtl. Prot., 626 F.2d at 1050), 3 vacated
as moot 498 U.S. 1077 (1991). 4
Accord N. Carolina Growers’ Ass’n, Inc. v. United Farm
Workers, 702 F.3d 755, 763 (4th Cir. 2012); Prometheus Radio,
652 F.3d at 450; Safe Air For Everyone v. EPA, 488 F.3d 1088,
1098 (9th Cir. 2007); Mission Grp. Kan., Inc. v. Riley, 146 F.3d
775, 781 (10th Cir. 1998); Nw. Tissue Ctr. v. Shalala, 1 F.3d
522, 531 (7th Cir. 1993).
2
3 See, e.g., NRDC v. NHTSA, 894 F.3d 95, 115 (2d Cir. 2018)
(“An agency may not promulgate a rule * * * and then claim
that post-promulgation notice and comment procedures cure
the failure to follow, in the first instance, the procedures
required by the APA.”); Burks v. United States, 633 F.3d 347,
360 n.9 (5th Cir. 2011) (“That the government allowed for notice
and comment after the final Regulations were enacted is not an
acceptable substitute for pre-promulgation notice and
comment.”); Sharon Steel Corp. v. EPA, 597 F.2d 377, 381 (3d
17
But here, rather than follow the APA’s simple
prescription, the agencies decided to invent a
workaround: promulgate invalid “interim rules,”
then allow comment, then promulgate an essentially
identical “final” rule.
In that scenario, the
government maintains, who cares that the agencies
initially flouted the law? The “final” rule was still
“preceded” by comment and thus, on the
government’s view, technically satisfied the APA—
and any prior contumaciousness can be ignored. See
Gov’t Br. 33.
The government is incorrect. If the 2018 Rules
were not preceded by a meaningful opportunity for
the public to comment, then these Rules are
procedurally invalid under the APA. For many
reasons, an opportunity to comment that is provided
after essentially identical “interim rules” have
already been promulgated will often not be
meaningful. In this scenario, a “final” rule will,
outside of the circumstance discussed infra Part II.B,
remain invalid because the agencies have neglected
entirely the public’s right to “participate in the rule
making.” 5 U.S.C. 553(c) (emphasis added).
“Participating” in a rulemaking does not mean
submitting comments to an agency that has made up
its mind and has no interest in what the public has
Cir. 1979) (“We hold that the period for comments after
promulgation cannot substitute for the prior notice and
comment required by the APA.”).
4 The challengers in Air Transportation dropped their argument
after this Court granted certiorari.
18
to say. 5 “It is procedure that marks the difference
between rule by law and rule by fiat.” McGarva v.
United States, 406 U.S. 953, 954 (1972) (quoting
Wisconsin v. Constantineau, 400 U.S. 433, 436
(1971)). And the agencies’ initial-rulemaking-by-fiat
mechanism runs against the “psychological and
bureaucratic realit[y]” that once “regulations are a
fait accompli,” the few individuals that will still
“bother to submit their views” will confront
bureaucrats uninterested in “seriously consider[ing]
their suggestions.” N.J. Dep’t of Envtl. Prot., 626
F.2d at 1048–50 (quoting U.S. Steel Corp. v. EPA,
595 F.2d 207, 214–15 (5th Cir. 1979)); see also
Sharon Steel Corp. v. EPA, 597 F.2d 377, 380–81 (3d
Cir. 1979) (“After the [interim] final rule is issued,
the [commenter] must come hat-in-hand and run the
risk that the decisionmaker is likely to resist
change.”).
The panel below recognized and responded to that
reality, observing that the 2017 Rules “impaired the
rulemaking process by altering the Agencies’ starting
point in considering the [2018] Final Rules,” as “the
Agencies changed the question presented concerning
the Final Rules from whether they should create the
exemptions to whether they should depart from
them.” Pet.App. 31a.
5 Similarly, an agency cannot satisfy the APA by accepting
comments and shoving them, unread, into a filing cabinet. See,
e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 35–36 (D.C. Cir.
1977) (“[T]he opportunity to comment is meaningless unless the
agency responds to significant points raised by the public.”).
19
The logic that “post hoc comment was not
contemplated by the APA and is generally not
consonant with it,” N.J. Dep’t of Envtl. Prot., 626
F.2d at 1050, should apply irrespective of whether an
invalid prior rule is swiftly repackaged and repromulgated after a comment period that functions
as an afterthought. The meaningful opportunity for
comment “require[s] that * * * parties be able to
comment on [a] rule while it is still in [a] formative
or ‘proposed’ stage.” Advocates for Highway & Auto
Safety v. Fed. Highway Admin., 28 F.3d 1288, 1291
(D.C. Cir. 1994) (quoting Nat’l Tour Brokers Ass’n v.
United States, 591 F.2d 896, 902 (D.C. Cir. 1978)).
Petitioners’ interim-then-final rule workaround
“ignore[s] the possibility that the policy announced
[in the interim rule] might have solidified to the
point where any comments offered in response to the
late[] invitation would fall on deaf ears.” Id. at 1291;
see also Air Transp., 900 F.2d at 379–80 (“People
naturally tend to be more close-minded and
defensive once they have made a ‘final’
determination.”).
The federal Circuit Courts have rejected
analogous agency attempts to implement such
kangaroo procedures—and this Court should do the
same here. “An agency that wished to dispense with
pre-promulgation notice and comment could simply
do so, invite post-promulgation comment, and
republish the regulation before a reviewing court
could act.” U.S. Steel Corp. v. EPA, 595 F.2d 207,
211–14 (5th Cir. 1979). Federal agencies may not
“circumvent * * * the APA” with such ease. NRDC v.
EPA, 683 F.2d 752, 768 (3d Cir. 1982); see also
Reynolds, 710 F.3d at 523 (“[A]gencies [cannot] avoid
20
notice and comment by simply issuing an interim
rule and subsequently adopting it as the final rule.
We cannot countenance a justification which has the
potential for such mischief.” (internal citations
omitted)); City of Waco v. EPA, 620 F.2d 84, 86 (5th
Cir. 1980) (“[A]cceptance of the EPA’s position would
allow any agency to dispense with pre-promulgation
notice and comment whenever it so desired.”);
Sharon Steel, 597 F.2d at 381 (“If a period for
comments after issuance of a rule could cure a
violation of the APA’s requirements, an agency could
negate at will the Congressional decision that notice
and an opportunity for comment must precede
promulgation.”).
B.
An agency that violates section 553
must establish it maintained an
“open mind” when considering
post-promulgation comments or
have its rule vacated, irrespective
of whether the agency swiftly repromulgates the same rule.
Normally, a rule promulgated in violation of
section 553 must be vacated—and an agency may not
short-circuit that process by swiftly repackaging and
re-promulgating the same invalid rule. See supra
Part II.A. But some federal courts have recognized a
limited exception if an agency can demonstrate that
it maintained an “open mind” when considering postpromulgation comments.
For example, in Levesque v. Block, 723 F.2d 175
(1st Cir. 1983), the First Circuit deemed invalid a
prior regulation promulgated without notice and
comment, but decided that a similar regulation
21
promulgated after notice and comment remained “a
valid rule.” Id. at 187. The First Circuit took note
that the “general rule * * * frowns upon postpromulgation comment periods.” Id. But when “the
agency has been open-minded, the presumption
against a late comment period can be overcome and a
rule upheld.” Id. at 188. In Levesque, the agency
was able to demonstrate an open mind—and so save
its final rules—in part because it had “made a
number of changes in the [final] rules and gave
reasonable responses when rules were not changed.”
Id.
Other Circuits—most notably the D.C. Circuit
and the Third Circuit 6—have seen fit to adopt a
similar “open-mindedness” inquiry when evaluating
a post-rulemaking comment period. See, e.g., Guedes
v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 920 F.3d 1, 13 (D.C. Cir. 2019) (“[W]e
have repeatedly held that the agency prevails on the
merits as long as it can demonstrate that it has kept
an ‘open mind’ throughout the subsequent comment
period.” (quotation omitted)); Fed. Express Corp. v.
Mineta, 373 F.3d 112, 120 (D.C. Cir. 2004)
(upholding final rule notwithstanding intermediate
notice and comment violation as the “agency has
made a compelling showing that it provided a
meaningful opportunity to comment before the [final
rule] became effective” (internal citations and
quotation marks omitted)); Reynolds, 710 F.3d at 519
Pet.App. 30a (“‘The opportunity for comment must be a
meaningful opportunity,’ to have interested parties share their
views, and to have the agency consider them with an ‘open
mind.’” (quoting Prometheus Radio, 652 F.3d at 450)).
6
22
(“The Government * * * [must] show[] that the
[agency] ‘maintained a flexible and open-minded
attitude’” rather than “a single-minded commitment
to the substantive result reached” (alteration
omitted) (quoting Prometheus Radio, 652 F.3d at
449)); see also United States v. Brewer, 766 F.3d 884,
892 (8th Cir. 2014) (noting that a that a “flexible and
open-minded attitude towards [an agency’s] own
rules * * * is generally required for the notice and
comment period” (quoting same)).
The open-mindedness approach advanced by
these Circuits makes good sense. In stark contrast
to an agency bent on re-promulgating its initial
invalid rule, an open-minded agency can still
“seriously consider” submitted comments, N.J. Dep’t
of Envtl Prot., 626 F.2d at 1049 (quoting U.S. Steel
Corp., 595 F.2d at 214–15), and thereby benefit from
“avoid[ing] errors and mak[ing] a more informed
decision,” Allina Health Servs., 139 S. Ct. at 1816.
Put otherwise, an open-minded agency can give the
public the “opportunity to participate in the rule
making,” 5 U.S.C. 553(c), i.e., to submit their views
to an agency that affords them a “meaningful
opportunity” to comment, Rural Cellular Ass’n, 588
F.3d at 1101.
Evaluating an agency’s open-mindedness during
a post-promulgation comment period is a casespecific inquiry.
It is “the agency’s burden to
persuade the court that it has accorded the
comments a full and fair hearing.” Advocates for
23
Highway & Auto Safety, 28 F.3d at 1292. 7 To evince
an open mind, an agency might “present evidence of
a level of public participation and a degree of agency
receptivity that demonstrates that a real public
reconsideration of the issued rule has taken place.”
Levesque, 723 F.2d at 188 (internal quotation marks
omitted). Affidavits from relevant officials may be
submitted and considered, and an examination of
why comment was skipped in the first place may be
undertaken.
See Pet.App. 30a (analyzing “the
Agencies’ justifications for avoiding notice and
comment” when promulgating the 2017 Rules). Of
course, an agency’s subsequent “[c]onsideration of
comments as a matter of grace is not enough.”
McLouth Steel Prods. Corp. v. Thomas, 838 F.2d
1317, 1323 (D.C. Cir. 1988). A court may “examine
whether the ‘language of the agency’s published
7 The “imposition of * * * a burden on the challenger is
normally inappropriate where the agency has completely failed
to comply with § 553.” McLouth Steel Prod. Corp. v. Thomas,
838 F.2d 1317, 1324 (D.C. Cir. 1988); see also Kristin E.
Hickman & Mark Thomson, Open Minds and Harmless Errors:
Judicial Review of Postpromulgation Notice and Comment, 101
Cornell L. Rev. 261, 312–13 (2016) (“[F]airness militates in
favor of placing the burden of proof on the agency because the
consequences of forgoing prepromulgation notice and comment
are often potentially severe.”). Moreover, the question of openmindedness concerns evidence and considerations within the
agency’s control. See Hickman & Thomson, supra, at 314
(“[P]lacing the burden of proof on a party challenging a rule
* * * asks the challenging party to do the impossible.”); cf.
Shinseki v. Sanders, 556 U.S. 396, 399 (2009) (recognizing that
a doctrinal framework “imposes an unreasonable evidentiary
burden” when it forces a party to establish its opponent’s
mental state).
24
replies suggest that the agency had afforded the
comments particularly searching consideration.’”
Advocates for Highway & Auto Safety, 28 F.3d at
1292 (alteration omitted) (quoting Air Transp., 900
F.2d at 380). Finally, “changes and revision [to the
final rule] are indicative of an open mind”—although
“an agency’s failure to make any does not [inevitably]
mean its mind is closed.” Id.; see also Air Transp.,
900 F.2d at 380 (“The FAA has not come close to
overcoming the presumption of close-mindedness in
this case [in part because i]t made no changes in the
* * * Rules in response to public comments.”);
Levesque, 723 F.2d at 188–89 (concluding that
agency demonstrated an open mind in part because
it “made a number of changes in the [final] rules and
gave reasonable responses when rules were not
changed”).
In undertaking the open-mindedness inquiry, due
consideration should be given to the concern that if
the “government could skip [notice-and-comment]
procedures” without adverse consequences in the
majority of cases, that would “virtually repeal section
553’s requirements.” Sugar Cane Growers Co-op. of
Fla. v. Veneman, 289 F.3d 89, 96 (D.C. Cir. 2002); see
also Kristin E. Hickman & Mark Thomson, Open
Minds and Harmless Errors: Judicial Review of
Postpromulgation Notice and Comment, 101 Cornell
L. Rev. 261, 314 (2016) (“[A]n easy ‘out’ from
prepromulgation notice and comment would
dramatically reduce any incentive for agencies to
comply with § 553, and the requirements in that
section would become afterthoughts.”). Accordingly,
when an agency already violated section 553(c) in
promulgating its rule without proper comment, the
25
“presumption,” in accordance with bureaucratic and
psychological reality, must be that the agency has
“closed [its] mind” to “subsequent comments” in a
later rulemaking that produces the same result—and
any doubt should be resolved in favor of demanding
compliance with the basic requirements in section
553. Advocates for Highway & Auto Safety, 28 F.3d
at 1292 (quoting Air Transp., 900 F.3d at 379–80));
see also Air Transp., 900 F.2d at 379 (“[W]e
recognize that an agency is not likely to be receptive
to suggested changes once the agency ‘put[s] its
credibility on the line in the form of “final” rules.’”
(quoting Nat’l Tour Brokers, 591 F.2d at 902)). An
agency can “overcome [this] presumption ‘only upon
a compelling showing that ‘the agency’s mind
remain[ed] open enough at the later stage.’” Air
Transp., 900 F.2d at 379 (quoting McLouth 838 F.2d
at 1323).
Thus framed, the open-mindedness inquiry
strikes an important balance. It protects the public’s
meaningful opportunity to comment, see 5
U.S.C. 553(c), while ensuring that an agency is not
foreclosed from “ever purg[ing] the * * * ‘taint’ from a
procedurally defective but substantively reasonable
interim rule,” Gov’t Br. 36. If the agency can
demonstrate that it maintained an open mind, the
taint may well be purged.
Moreover,
contrary
to
the
government’s
contention, the open-mindedness inquiry does not
impose an additional requirement beyond the
requirements of the APA. See Gov’t Br. 35. The
APA requires agencies to afford the public the
“opportunity to participate in the rule making,” 5
U.S.C. 553(c), and the open-mindedness inquiry
26
appropriately seeks to determine whether an agency
has in fact allowed such “participation.”
The open mindedness inquiry also would not, as
the government suggests, foreclose a court from
taking “due account of the rule of prejudicial error.”
5 U.S.C. 706; see Gov’t Br. 36. Depending on the
circumstances, it “might be obvious from the record
in the particular case that the error made no
difference.” Shinseki v. Sanders, 556 U.S. 396, 407
(2009). For example, the record may evince that no
member of the public wished to avail him or herself
of the opportunity to participate in the rulemaking.
Alternatively, circumstances may indicate that “the
agency’s substantive approach was ‘the only
reasonable one,’” Sugar Cane Growers, 289 F.3d at
96 (quoting Sheppard v. Sullivan, 906 F.2d 756, 761–
62 (D.C. Cir. 1990))), such that the court “would
reverse * * * if the agency came out the other way,”
Reynolds, 710 F.3d at 518 (alteration omitted)
(quoting same). On the other hand, section 706 will
not salvage an agency’s otherwise invalid rule when
a court “cannot say with certainty whether [the]
comments would have had some effect if they had
been considered when the issue was open.”
McLouth, 838 F.2d at 1324. 8 In that circumstance,
8 Accord Mid Continent Nail Corp. v. United States, 846 F.3d
1364, 1384 (Fed. Cir. 2017); Reynolds, 710 F.3d at 518; Green
Island Power Auth. v. FERC, 577 F.3d 148, 165 (2d Cir. 2009);
see also Paulsen v. Daniels, 413 F.3d 999, 1006 (9th Cir. 2005)
(“We have held that the failure to provide notice and comment
is harmless only where the agency’s mistake ‘clearly had no
bearing on the procedure used or the substance of decision
reached.’” (quoting Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1487 (9th Cir. 1992))); cf. McGarva, 406 U.S. at 955
27
the appropriate course, consonant with the APA, is
vacatur and remand—with a directive that the
agency give the issue a fresh look with an open mind.
See id. (“Remand will of course give petitioner one
more procedural bite at the apple, but it is the first
bite of the quality to which it was entitled from the
start.”).
C.
The agencies did not provide a
meaningful
opportunity
to
comment on the 2018 Rules.
The agencies here have not shown that the public
comment period held after they already promulgated
the 2018 Rules in violation of 5 U.S.C. 553(c)
provided a meaningful opportunity to comment on
the expanded exemptions and accommodations.
Because the agencies failed to show that they
maintained an open mind in considering and
responding to comments, they failed to afford the
public a meaningful opportunity to participate in the
rulemaking process. Thus, the essentially identical
2018 Rules were properly vacated by the Third
Circuit.
By providing an opportunity for public comment
after the 2017 Rules became effective, the agencies
fundamentally altered the starting point for
considering public comments. Rather than seeking
public comment on whether the agencies should
expand religious exemptions and accommodations in
(recognizing that in some circumstances the “nature of [a]
procedural error renders impossible the application of a
‘harmless error’ test”).
28
the first place, the agencies sought public comment
on whether the expanded exemptions and
accommodations should be continued. See NRDC,
683 F.2d at 768.
This change in the agencies’ starting point for the
comment period presumptively undermined the
public’s meaningful opportunity to comment. The
agencies were “not likely to be receptive to suggested
changes” after they put their “credibility on the line
in the form of ‘final’ rules.” Air Transportation, 900
F.2d at 379–80 (quoting Nat’l Tour Brokers, 591 F.3d
at 902); see also supra Part II.A.–B. Instead, the
agencies were “likely to resist change” after they
published the 2017 Rules, which forcefully stated the
agencies’ position—in binding form—that expanded
exemptions and accommodations were being
implemented. See NRDC, 683 F.2d at 768 (quoting
Sharon Steel, 597 F.2d at 381). The presence of the
procedurally invalid 2017 Rules as the agencies’ new
baseline prejudiced the public’s opportunity to have
comments considered by an impartial decisionmaker
about whether the expanded exemptions and
accommodations to the Mandate should be
implemented at all.
The agencies have not carried their burden to
show that the presumption of close-mindedness is illfounded here. Indeed, the language of the 2017
Rules themselves evinces that the agencies did not
approach the post-promulgation comment period
with an open mind. The agencies stated that they
had “decided” it was necessary and appropriate to
provide the expanded exemptions because they had
“concluded” that requiring objecting entities to
choose between the Mandate, the accommodation, or
29
penalties imposed a substantial burden on religious
exercise under RFRA and that the government did
not have a compelling interest in applying that
federal statutory provision. 82 Fed. Reg. at 47,800;
see also id. at 47,807 (“[W]e have also concluded that
the Government does not have a compelling interest
in requiring individuals to be covered by policies that
include contraceptive coverage when the individuals
have sincerely held religious objections to that
coverage.” (emphasis added)), id. at 47,809 (“The
Departments further conclude that it would be
inadequate to merely attempt to amend the
accommodation process instead of expand the
exemption.” (emphasis added)), id. at 47,849 (“[T]he
Departments
have
determined
that
the
Government’s interest in applying contraceptive
coverage requirements to the plans of certain entities
and individuals does not outweigh the sincerely held
moral objections of those individuals.” (emphasis
added)). Whether the regulatory scheme imposed a
substantial burden under RFRA was precisely one of
the questions for public comment during the postpromulgation period. Yet the agencies evidently had
already “concluded that * * * requiring certain
objecting entities or individuals to choose between
the Mandate, the accommodation, or penalties for
noncompliance has violated RFRA.” Id. at 47,814
(emphasis added).
The agencies also repeatedly stated that they
were promulgating the 2017 Rules to “bring years of
litigation concerning the Mandate to a close.” Id. at
47,806; see also id. at 47,799, 47,800, 47,848. A
desire to foreclose claims in litigation is incompatible
with the agencies’ statutory duty to seriously
30
consider input from the public on issues as important
as whether requiring certain objecting entities or
individuals to choose between the Mandate, the
accommodation, or penalties for noncompliance
violates RFRA.
See Brewer, 766 F.3d at 892;
Prometheus Radio, 652 F.3d at 449, 453. Rather
than seriously considering input from the public on
whether the regulatory scheme imposed a
substantial burden on religious exercise, the agencies
sought to immediately pick a side in litigation and
bring any contrary argument “to a close.” 82 Fed.
Reg. at 47,806. The agencies’ explicit desire to
foreclose litigation itself evinces that they did not
have a flexible and open-minded attitude at the time
that they were obligated to meaningfully consider
comments.
The agencies’ behavior during the postpromulgation comment period similarly shows that
the agencies did not have an open mind during the
comment period. Indeed, at the very moment the
agencies were supposedly “considering” public
comments, they were actively defending the validity
of their 2017 Rules in litigation. See Pet.App. 10a
(noting that the agencies promulgated the 2018 rules
while an appeal of a preliminary injunction against
the 2017 Rules was pending). Moreover, even before
the comment period closed, the agencies were taking
steps to re-implement the 2017 Rules in repackaged
form. During the comment period, for example, the
agencies were preparing revised forms to be used for
the optional accommodation and seeking public
comments on these forms. See Irish 4 Reprod.
Health v. Dep’t of Health & Human Servs., 2020 WL
248009, at *13 (N.D. Ind. Jan. 16, 2020). Such
31
actions are in no way indicative of an agency with
the open-minded and flexible attitude required by 5
U.S.C. 553(c).
The agencies’ closed-mindedness is reinforced by
the fact that the agencies did not make any
meaningful changes between the 2017 and 2018
Rules. The only alterations were, by the agencies’
own admission, merely “technical changes,” 83 Fed.
Reg. at 57,537, or changes made “to clarify the
intended scope” of the 2017 Rules, id. at 57,593.
Such changes do not reflect meaningful, substantive
changes to the rules made as part of a rational,
deliberative response to public input. The absence of
meaningful changes, in combination with the
agencies’ definitive language in the 2017 Rules and
public behavior during the comment period, serves
to confirm that the post-promulgation opportunity
for comment was, under the circumstances of this
case, not meaningful.
Because the agencies did not provide the public
with a meaningful opportunity to comment on the
substance of the exemptions and accommodations,
their promulgation of the 2018 Rules violated 5
U.S.C. 553(c).
32
CONCLUSION
For the foregoing reasons, the judgment of the
Third Circuit should be affirmed.
Respectfully submitted,
April 8, 2020
Elliott Schulder
Counsel of Record
Anna Kraus
Laura Dolbow ∗
Alexander N. Ely
Alexander L. Schultz
COVINGTON & BURLING LLP
850 Tenth Street, N.W.
Washington, DC 20001
(202) 662-6000
eschulder@cov.com
Counsel for Amicus Curiae
Member of the Bar of Tennessee, District of Columbia bar
membership pending; supervised by principals of the Firm.
∗
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