Petition for Writ of Certiorari — John J. Dierlam, Petitioner v. Joseph R. Biden, Jr., President of the United States, et al.

Supreme Court briefJul 27, 2024

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Appendix

Appendix A - Clarifying Memorandum, John J. Dierlam v.

Barack Hussein Obama, Southern District of TX,

Civil Action No. 4U6-CV-00307

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Appendix B - Order On Motion to Dismiss, John J. Dierlam

v. Barack Hussein Obama, Southern District of TX,

Civil Action No. 4:16CV-003Q7

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Appendix C - Order On Motion for Summary Judgment,

John J. Dierlam v. Joseph R. Biden JR., et. al.,

Southern District of TX, Civil Action No. 4U6-CV00307

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Appendix D - Opinion on Appeal, United States Court of

Appeals for the Fifth Circuit, No. 23-20401

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Appendix E - Denial of En Banc, United States Court of

Appeals for the Fifth Circuit, No. 23-20401

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Appendix F - Statutes.............................................

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5 U.S.C. § 706........................................

26 U.S.C. § 1402(g).................................

26 U.S.C. § 5000A...................................

28 U.S.C. § 1254.....................................

28 U.S.C. § 1331.....................................

28 U.S.C. § 1340.....................................

28 U.S.C. § 1343.....................................

28 U.S.C. § 1346.....................................

28 U.S.C. § 1361.....................................

28 U.S.C. § 1367.....................................

28 U.S.C. § 1391(e)......... ........................

28 U.S.C. § 2201.....................................

28 U.S.C. § 2202.....................................

28 U.S.C. § 2465.....................................

28 U.S.C. § 2674.....................................

42 U.S.C. § 2000bb-l............... ...............

42 U.S.C. 18022(a).................................

42 U.S.C. 18091(1).................................

45 CFR§ 147.130(a)(1).............................

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45 CFR§ 147.132 ..................................

45 CFR § 92.4...........................................

45 CFR § 92.101.......................................

45 CFR § 92.206.......................................

45 CFR § 92.207.................. :...................

Appendix G - Constitutional Provisions..........

Art. I, §9, cl. 4 of the US Constitution....

Art. I, §2, cl. 3 of the US Constitution....

1st Amendment to the US Constitution...

4th Amendment to the US Constitution..

5th Amendment to the US Constitution..

9th Amendment to the US Constitution..

10th Amendment to the US Constitution

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Appendix A; Case 4:i6-cv-00307 Document 121 Filed on

02/08/22 in TXSD Page 1 of 9

United States District Court

Southern District of Texas

ENTERED

February 09, 2022

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JOHN J DIERLAM,

Plaintiff,

VS.

BARACK HUSSEIN

OBAMA, et al.,

Defendants.

CIVIL ACTION NO.

4:i6-CV-00307

CLARIFYING MEMORANDUM

Before the Court is plaintiff John Dierlam’s Motion

for Clarification and Leave to Submit a Third Amended

Complaint (Doc. 111). At a hearing on January 28, 2022, the

Court GRANTED Mr. Dierlam’s Motion. The Court now

offers this clarification of its rulings and reasoning

concerning mootness and standing.

I. FACTUAL BACKGROUND

On February 4, 2016, Plaintiff John Dierlam filed his

initial complaint, challenging the Affordable Care Act

(ACA) and requesting prospective and retrospective relief

for myriad alleged violations of the United States

Constitution and the Religious Freedom Restoration Act.

See, generally

ECF No. 1. However, as Mr.

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Dierlam’s case was progressing, the ACA was evolving.

The Tax Cut and Jobs Act (TC JA) went into effect a

year after Mr. Dierlam filed his lawsuit, reducing the

shared-responsibility payment (imposed on individuals who

failed to purchase health insurance) to $0, but maintaining

the individual mandate language. See Pub. L. No. 115-97, §

11081, 131 Stat. 2054, 2092 (Dec. 22, 2017).

Case 4:i6-cv-00307 Document 121 Filed on 02/08/22 in

TXSD Page 2 of 9

As well, in 2017, the Department of Health and

Human Services and the Departments of Labor and the

Treasury promulgated two Interim Final Rules (IFR) meant

to protect religious objectors to the ACA’s contraceptive

mandate. “The first IFR significantly broadened the

definition of an exempt religious employer.” Little Sisters of

the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S.

Ct. 2367, 2377 (2020). And “[t]he second IFR created a

similar ‘moral

exemption’ for employers.” Id. at 2378. Part of the second

IFR also included an “individual exemption,” allowing “a

willing plan sponsor” or “willing health insurance issuer” to

offer a separate policy to individuals with objections to

some or aft contraceptive services. 82 Fed. Reg. at 47,812.

The individual exemption is purely voluntary on the

insurer’s part, and therefore “cannot be used to force a plan

(or its sponsor) or an issuer to provide coverage omitting

contraception.” Id. However, the two IFRs were enjoined

until July 2020, when the Supreme Court’s decision in

Little Sisters of the Poor dissolved the nationwide

injunction previously affirmed by the Third

Circuit. 140 S. Ct. at 2373 (holding that the ACA authorized

HHS to exempt or accommodate employers’ religious or

moral objections to providing no-cost contraceptive

coverage).

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And while all of this was happening, Mr. Dierlam

was litigating his case. In November of 2017, Magistrate

Judge Palermo found that the HHS exemption mooted all of

Mr. Dierlam’s claims for prospective relief, even though the

exemption was still enjoined. R. &. R. 9, ECF 67. However,

the Government apparently disagreed with her holding, as

it (l) orally withdrew its HHS-exemption-based mootness

argument during this Court’s hearing on Judge Palermo’s

report, and (2) did not include HHS exemption mootness

arguments in its briefing to the Fifth Circuit. Tr. 3:7-11,

ECF 80.

As for the TCJA, it went unaddressed by Judge

Palermo because it became law after she issued her report.

However, this Court ruled from the bench that the TCJA

mooted all of Mr.

Case 4G6-cv00307 Document 121 Filed on 02/08/22 in

TXSD Page 3 of 9

Dierlam’s claims for prospective relief, again conflicting

with the Government’s more limited understanding of the

TCJA as mooting only those of Mr. Dierlam’s prospective

claims based on the individual mandate’s shared

responsibility payments. Tr. 38-13-16, ECF 80. Mr. Dierlam

consistently held that neither the TCJA nor the HHS

exemption mooted any of his claims.

The Fifth Circuit—noting the piecemeal mootness

analyses resulting from the way the ACA changed in real

time during the course of this litigation—remanded the

matter, ordering this Court to conduct a comprehensive

mootness analysis in the first instance. Dierlam v. Trump,

977 F.3d 471, 478 (5th Cir. 2020), cert, denied sub nom.

Dierlam v. Biden, 141 S. Ct. 1392 (2021). Specifically, the

Fifth Circuit first wanted clarity on what effect this Court

thinks the TCJA as on

the mootness of Mr. Dierlam’s claims. See id. (noting that

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“the district court only said: 1 think, prospectively, it seems

to be that most recent legislation does take care of the

problem.’”) Second, the Fifth Circuit wanted an HHS*

mootness analysis that was not premised upon the

supposed insufficiency of Mr. Dierlam’s attempts to search

for alternative health-insurance plans. Id.

After allowing Mr. Dierlam to amend his complaint,

this Court held a hearing on the Government’s second

motion to dismiss, granting the motion after hearing oral

argument on the mootness issue. ^eeMin. entry

12.15.2021. Now, having granted Mr. Dierlam’s motion for

leave to file a third amended complaint, this Court

elaborates upon its mootness and standing analyses per Mr.

Dierlam’s request.

Case 4:i6-cv-00307 Document 121 Filed on 02/08/22 in

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H. DISCUSSION

A. Mootness

i. Legal Standard

The Court adopts in full the Fifth Circuit’s

articulation of the mootness doctrine39: The doctrine of

mootness arises from Article III of the Constitution, which

provides federal courts with jurisdiction over a matter only

if there is a five “case” or “controversy.” DaimJerChrysler

Corp. v. Cuno, 547 U.S. 332, 352 (2006). “Accordingly, to

invoke the jurisdiction of a federal court, a litigant must

have suffered, or be threatened with, an actual injury

traceable to the defendant and likely to be redressed by a

favorable judicial.decision.” Cha£n v. Cha£n, 568 U.S. 165,

171-72 (2013) (cleaned up). This case-or-controversy

requirement persists “through all stages of federal judicial

proceedings.” Id. at 172, 133 S.Ct. 1017.

If an intervening event renders the court unable to

39 Dierlam v. Trump, 977 F.3d 471, 476-77 (5th Cir. 2020).

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grant the litigant “any effectual relief whatever,” the case is

moot. Calderon v. Moore, 518 U.S. 149, 150 (1996). But even

when the “primary relief sought is no longer available,”

“being able to imagine an alternative form of relief is all

that's required to keep a case alive.” Univ. ofNotre Dame v.

Sebelius, 743 F.3d 547, 553 (7th Cir. 2014), judgment

vacated subnom. Univ. ofNotre Dame v. Burwell, 575 U.S.

901 (2015). So “[a]s long as the parties have a concrete

interest, however small, in the outcome of the litigation, the

case is not moot.” Knox v. Serv. Emps. Inti Union, Local

1000, 567 U.S. 298, 307-08 (2012).

Further, a case is not necessarily moot because it is

uncertain whether the court's relief will have any practical

impact on the plaintiff. “Courts often adjudicate disputes

where the practical impact of any decision is not assured.”

Chafin, 568 U.S. at 175. For example, “the fact that a

Case 4:i6-cv-00307 Document 121 Filed on 02/08/22 in

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defendant is insolvent does not moot a claim for damages.”

Id. at 175-76. And “[clourts also decide cases against

foreign nations, whose choices to respect final rulings are

not guaranteed.” Id. at 176.

When conducting a mootness analysis, a court must

not “confuse! ] mootness with the merits.” Id. at 174. This

means that a court analyzing mootness in the early stages

of litigation need only ask whether the plaintiffs requested

relief is “so implausible that it may be disregarded on the

question of jurisdiction.” Id. at 177. “[I]t is thus for lower

courts at later stages of the litigation to decide whether [the

plaintiff] is in fact entitled to the relief he seeks.” Id.

ii. Analysis

The Court’s legal research confirmed virtually all of

the government’s arguments regarding the mootness of Mr.

Dierlam’s prospective claims. As the Fifth Circuit explained

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in remanding this case for a mootness analysis, in 2017, the

HHS “created new exemptions to the contraceptive

mandate” for religious objectors like Mr. Dierlam, and the

TC JA was enacted, reducing the shared-responsibility

payment to $0 beginning in tax year 2019. Dierlam, 977

F.3d at 473-74. And after the Supreme Court’s ruling in

July 2020, the HHS exemptions were no longer enjoined.

By law, the definition of exempt religious employers

has been broadened, including any employer who “objects ...

based on its sincerely held religious beliefs,” “to its

establishing, maintaining, providing, offering, or arranging

[for] coverage or payments for some or all contraceptive

services.” Little Sisters of the Poor, 140 S. Ct. at 2377

(2020) (citing 82 Fed. Reg. 47812 (2017)). This definition

includes nonprofits, for-profits, publicly traded entities and

non-publicly traded entities, and it exempts them from the

contraceptive coverage accommodations of the ACA. Id. at

2377-78. As a result, it is not the case, as Mr. Dierlam

alleges, that “[a] medical

Case 4:l6cv-00307 Document 121 Filed on 02/08/22 in

TXSD Page 6 of 9

insurer is compelled to ... provide contraceptive coverage” to

Mr. Dierlam or that Mr. Dierlam is “required to purchase

medical insurance from [a] medical insurer[] [that] provides

contraceptive coverage.” Pl.’s Comp. If 14, ECF 94.

And with the shared responsibility payment “zeroed

out” by the TC JA, there is no enforcement mechanism to

compel Mr. Dierlam to purchase health care coverage at all.

California v. Texas, 141 S. Ct. 2104, 2114 (2021).

Accordingly, the very action Mr. Dierlam demands—an

exemption from having to participate in a health plan that

covers contraceptive services that are inconsistent with his

religious beliefs, see Pl.’s Comp,

43-45, ECF 94—has

been issued, and any prospective injury Mr. Dierlam could

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allege based on the absence of such relief has thus been

vitiated. See Dierlam, 977 F.3d at 473-74. Accordingly, Mr.

Dierlam’s requested relief has effectively been granted, and

his claims for declaratory and injunctive relief are thus

moot.

Mr. Dierlam first argues, citing a Fox News article

from December 2020 and his personal predictions on the

“normal inclination of Democrats”, that his claims are not

moot because Congress will simply reinstate the sharedresponsibility payment. Pl.’s Resp. 10-11, ECF 105. Such

unsupported speculation is not sufficient to establish the

certainty necessary to invoke the rare exception to the

general rule that statutory changes discontinuing a

challenged practice moot plaintiff’s prospective claims—

even more so when such speculation remains

unsubstantiated two years into the Biden administration.

See Fantasy Ranch Inc. v. City ofArlington, Tex., 459 F.3d

546, 564 (5th Cir. 2006) (recognizing that “statutory

changes that discontinue a challenged practice are usually

enough to render a case moot, even if the legislature

possesses the power to reenact the statute after the lawsuit

is dismissed.’”); see also Cammermeyer v. Perry, 97 F.3d

1235, 1238 (9th Cir. 1996) (commenting that “[t]he

exceptions to this general fine of holdings are rare and

typically involve situations where it is virtually certain that

the repealed law will be reenacted.”)

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Second, Mr. Dierlam argues that, even though the

TCJA reduced the shared-responsibility payment to $0, the

language of the payment provision still remains and thus

the reduction of the payment made “no substantive

change.” Pl.’s Resp. 11, ECF 105. However, the Supreme

Court in California v. Texas held directly to the contrary

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when it found that the TCJA “effectively nullified the

penalty by setting its amount at $0” such that the

minimum essential coverage provision “has no means of

enforcement.” 141 S. Ct. at 2112, 2114. Mr. Dierlam tries to

argue that he is injured by the mere existence of the

mandatory language, but his “problem lies in the fact that

the statutory provision, while it tells [him] to obtain that

coverage, has no means of enforcement. With the

penalty zeroed out, the IRS can no longer seek a penalty

from those who fail to comply.” Id. Because of this, “there is

no possible Government action that is causally connected to

the plaintiffs’ injury—the costs of purchasing health

insurance. Or to put the matter conversely, that injury is

not ‘fairly traceable’ to any ‘allegedly unlawful conduct’ of

which the plaintiffs complain.” Id. (citing Allen v. Wright,

468 U.S. 737, 751 (1984).

Third, Mr. Dierlam argues that despite the Religious

Exemption Rule, he is still injured because the previous

requirement that all health plans include contraceptive

coverage “so skewed the market” that “few if any insurers”

will offer a policy without contraceptive coverage, and

“[e]ven if a health insurance policy can be identified there is

no assurance the insurer will remain in business or the

policy can be maintained for other reasons.” Pl.’s Resp. 12,

ECF 105. However, Mr. Dierlam cannot show causation

where his putative injury “results from the independent

action of some third party not before the court.” Simon v. E.

Ky. Welfare Rights Org., 426 U.S. 26, 41- 42 (1976). Here,

where insurers are expressly permitted by law to give

plaintiff a religious exemption, their decisions about

whether to do so have very little to do with defendants.

Similarly, Mr. Dierlam cannot establish redressability since

he cannot show that “it is likely, as opposed to

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merely speculative, that [his] injury will be redressed by a

favorable decision.” Inclusive Cmtys. Project, 946 F.3d 649,

655 (5th Cir. 2019).

For these reasons, the Court found that the TJCA

and the HHS’ exemptions moot all of Mr. Dierlam’s

prospective claims.

B. Standing

The party invoking federal jurisdiction bears the

burden of establishing the three elements of standing by

first sufficiently alleging “an injury in fact—an invasion of a

legally protected interest which is (a) concrete and

particularized . .. and (b) actual and imminent, not

conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992). Second, a plaintiff must allege “a

causal connection between the injury and the conduct

complained of—the injury has to be fairly ... trace[able] to

the challenged action of the defendant, and not... th[e]

result [of] the independent action of some third party not

before the court.” Id. (citations omitted). And third, “it must

be likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.” Id. (citations

omitted).

The Court’s analysis regarding standing tracks

closely with its mootness analysis above because, as the

Supreme Court has observed, “[mlootness has been

described as the doctrine of standing set in a time frame:

The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue

throughout its existence (mootness).’” Arizonans for Official

English v. Arizona, 520 U.S. 43, 68 & n.22 (1997) (quoting

US. Parole Comm’n v. Geraghty, 445 U.S. 388, 387 (1980)).

Therefore, this Court finds that Mr. Dierlam lacks standing

for his prospective claims for the same reasons that this

Court finds such claims moot.

Next is Mr. Dierlam’s retrospective claim that the

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Government’s failure to notify him of his non enrollment (in

violation of § 1502(c) of the ACA) “caused . . . harm” and

prevented him

Case 4:i6-cv-00307 Document 121 Filed on 02/08/22 in

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from having standing to file suit for retrospective claims

sooner. Pl.’s Compl. at ^ 11, ECF 94. However, Mr. Dierlam

“c[an] not [] . . . allege a bare procedural violation, divorced

from any concrete harm, and satisfy the injury-in-fact

requirement of Article III.” Spokeo, Inc. v. Robins, 578 U.S.

330, 341 (2016), as revised (May 24, 2016). Here, where the

purpose of § 1502(c) is to ensure that individuals who have

not received minimum essential coverage are aware of

coverage

options, where any government notification would have

simply directed Mr. Dierlam to HealthCare.gov, and where

Mr. Dierlam admits that he was already aware of

HealthCare.gov yet chose not to check it, no injury-in-fact

exists. See § 1502(c); see also Pl.’s Compl. at f 10, ECF 94.

As such, Mr. Dierlam lacks standing to bring a claim based

on the government’s § 1502(c) failure to notify.

III. CONCLUSION

For the reasons detailed above, this Court found that

Mr. Dierlam’s prospective claims are moot as he lacks

standing to bring them, and that his retrospective § 1502(c)

claim is invalid for lack of standing. Mr. Dierlam should

take care to ensure his third amended complaint does not

suffer from the same mootness and standing insufficiencies.

SIGNED at Houston, Texas on this the 8th day of February,

2022.

s/ KEITH P. ELLISON

UNITED STATES DISTRICT JUDGE

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Appendix B; Case 4:i6-cv*00307 Document 136 Filed on

12/12/22 in TXSD Page 1 of 1

United States District Court

Southern District of Texas

ENTERED

December 12, 2022

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JOHN J DIERLAM,

Plaintiff,

VS.

CIVIL ACTION NO.

4:i6-CV-00307

BARACK HUSSEIN OBAMA, §

et al.,

Defendants.

ORDER

Pending before the Court is Defendants’ Partial Motion to

Dismiss (Doc. 126). After considering the Motions, the

Parties’ briefs, oral arguments, and all applicable law, the

Court determines that the Motion to Dismiss should be

GRANTED as to Claims 1, 2 and 4-21 of Plaintiff’s Third

Amended Complaint in their entirety and Claim 3 to the

extent it seeks prospective relief.

IT IS SO ORDERED.

SIGNED at Houston, Texas on the 12th of December,

2022.

/s KEITH P. ELLISON

UNITED STATES DISTRICT JUDGE

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Appendix C: Case 4:i6-cv-00307 Document 148 Filed on

08/11/23 in TXSD Page 1 of 2

United States District Court

Southern District of Texas

ENTERED

August 11, 2023

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JOHN J DIERLAM,

Plaintiff,

VS.

Joseph R. Biden JR., et. al„

Defendants.

CIVIL ACTION NO.

4:16-CV-003Q7

ORDER

Pending before the Court is Plaintiff’s Motion for

Summary Judgment. ECF No. 143. Plaintiff is seeking

summary judgment on the retrospective portion of Claim 3

and several forms of prospective relief. Defendant does not

oppose Plaintiff’s request for a refund in the amount of

$5626.22 for the retrospective portion of Claim 3. ECF No.

144 at 2. Defendant opposes Plaintiff’s request for

prospective relief. Id. at 4.

After considering the Motions, the Parties’ briefs,

oral arguments, and all applicable law, the Court

determines that Plaintiff’s Motion for Summary Judgment

is GRANTED as to the retrospective portion of Claim 3 and

DENIED as to the extent that it seeks any other relief. The

Court finds that Defendant is entitled to retrospective refief

in the amount of $5,626.22 for his past payments of the

shared responsibility payment. The Court has already

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dismissed the prospective portion of Claim 3 and dismissed

all other claims in their entirety. ECF No. 136. Therefore,

there is no basis for the Court to award prospective relief.

IT IS SO ORDERED.

SIGNED at Houston, Texas, on this the 11th of

August, 2023.

Case 4:i6-cv-00307 Document 148 Filed on 08/11/23 in

TXSD Page 2 of 2

/s KEITH P. ELLISON

UNITED STATES DISTRICT JUDGE

Appendix D: Case: 23-20401 Document: 34-1 Page: i Date

Filed: 02/29/2024

United States Court of Appeals

Fifth Circuit

FILED

February 29, 2024

Lyle W. Cayce

Clerk

United States Court of Appeals

for the Fifth Circuit

No. 23-20401

Summary Calendar

John J. Dierlam,

Plaintiff—Appellant,

versus

Joseph R. Biden, in his official capacity as President of the

United States; United States Department of Health and

Human Services; Xavier Becerra, Secretary, U.S.

Department of Health and Human Services; United States

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Department of Treasury; Janet Yellen, Secretary, U.S.

Department of Treasury! United States Department of

Labor! Julie A. Su, Acting Secretary,

U.S. Department of Labor,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:i6-CV-307

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam: *

*This opinion is not designated for publication. See 5th Cir.

R. 47.5.

Case: 23-20401 Document: 34-1 Page: 2 Date Filed:

02/29/2024

No. 23-20401

Pro se Plaintiff John Dierlam brought claims

challenging the Affordable Care Act (ACA) alleging a

myriad of violations of the United States Constitution and

The Religious Freedom Restoration Act (RFRA). Dierlam

sought both retrospective and prospective relief.

This pro se case was previously before this court in

2020. See Dierlam v. Trump, 977 F.3d 471 (5th Cir. 2020).

There, we remanded the case so the district court could

conduct a full mootness analysis and so Plaintiff could seek

a refund of the shared-responsibility payments he made

under the ACA from 2014-2017 (a fee imposed on

individuals who failed to purchase health insurance)

(retrospective relief). Id. at 475, 478. As to prospective

relief, this court concluded that changes in the law raised

questions of standing and mootness which the district court

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was to address on remand. Id. at 473-74.

On remand, the district court granted Defendants’

Partial Motion to Dismiss finding that Plaintiff’s claims

were moot and/or lacked standing because the Tax Cut and

Jobs Act reduced the shared-responsibility payments to $0;

the Department of Health and Human Services (HHS)

created exemptions to the contraceptive-coverage

requirement, which included an individual exemption for

individuals like Plaintiff; and Plaintiff could not state an

injury under § 1502(c) of the ACA. After permitting Plaintiff

to file a Third Amended Complaint, Defendants filed

another Partial Motion to Dismiss which the district court

granted. Plaintiff appealed.

This court has considered this appeal on the basis of

the briefs and pertinent portions of the record. Having done

so, the judgment is affirmed for the reasons stated in the

district court’s detailed clarifying memorandum on the

dismissal of Plaintiff’s Second Amended Complaint. Those

reasons also apply to Plaintiff’s Third Amended Complaint.

The district court did not err in granting Defendants’

Partial Motion to Dismiss. We AFFIRM.

Appendix E: Case: 23-20401 Document: 40-2 Page: i Date

Filed: 05/07/2024

United States Court of Appeals

for the Fifth Circuit

No. 23-20401

John J. Dierlam

Plaintiff—Appellant,

versus

Joseph R. Biden, in his official capacity as President of the

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United States; United States Department of Health and

Human Services; Xavier Becerra, Secretary, U.S.

Department of Health and Human Services; United States

Department of Treasury; Janet Yellen, Secretary, U.S.

Department of Treasury; United States Department of

Labor; Julie A. Su, Acting Secretary,

U.S. Department of Labor,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:i6-CV-307

ON PETITION FOR REHEARING EN BANC

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th Cir. R. 35 I.O.P.), the

petition for panel rehearing is

Case^ 23-20401 Document: 40-2 Page: 2 Date Filed:

05/07/2024

No. 23-20401

DENIED. Because no member of the panel or judge in

regular active service requested that the court be polled on

rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R. 35),

the petition for rehearing en banc is DENIED.

Appendix F - Statutes

5 U.S. Code § 706 - Scope of review

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To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and

conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity;

limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to

sections 556 and 557 of this title or otherwise reviewed on

the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are

subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial

error.

26 U.S.C. § 1402(g) Members of certain religious faiths

(l) Exemption Any individual may file an application (in

such form and manner, and with such official, as may be

prescribed by regulations under this chapter) for an

exemption from the tax imposed by this chapter if he is a

member of a recognized religious sect or division thereof

and is an adherent of established tenets or teachings of

such sect or division by reason of which he is

conscientiously opposed to acceptance of the benefits of any

private or public insurance which makes payments in the

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event of death, disability, old-age, or retirement or makes

payments toward the cost of, or provides services for,

medical care (including the benefits of any insurance

system established by the Social Security Act). Such

exemption may be granted only if the application contains

or is accompanied by—

(A) such evidence of such individual’s membership in, and

adherence to the tenets or teachings of, the sect or division

thereof as the Secretary may require for purposes of

determining such individual’s compliance with the

preceding sentence, and

(B) his waiver of all benefits and other payments under

titles II and XVIII of the Social Security Act on the basis of

his wages and self-employment income as well as all such

benefits and other payments to him on the basis of the

wages and self-employment income of any other person,

and only if the Commissioner of Social Security finds that—

or teachings referred to in the preceding sentence,

(D) it is the practice, and has been for a period of time

which he deems to be substantial, for members of such sect

or division thereof to make provision for their dependent

members which in his judgment is reasonable in view of

their general level of living, and

(E) such sect or division thereof has been in existence at all

times since December 31, 1950.

An exemption may not be granted to any individual if any

benefit or other payment referred to in subparagraph (B)

became payable (or, but for section 203 or 222(b) of the

Social Security Act, would have become payable) at or

before the time of the filing of such waiver.

(2) Period for which exemption effective An exemption

granted to any individual pursuant to this subsection shall

apply with respect to all taxable years beginning after

December 31, 1950, except that such exemption shall not

apply for any taxable year—

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(A) beginning (i) before the taxable year in which such

individual first met the requirements of the first sentence

of paragraph (l), or (ii) before the time as of which the

Commissioner of Social Security finds that the sect or

division thereof of which such individual is a member met

the requirements of subparagraphs (C) and (D), or

(B) ending (i) after the time such individual ceases to meet

the requirements of the first sentence of paragraph (l), or

(ii) after the time as of which the Commissioner of Social

Security finds that the sect or division thereof of which he

is a member ceases to meet the requirements of

subparagraph (C) or (D).

(3) Subsection to apply to certain church employees

This subsection shall apply with respect to services which

are described in subparagraph (B) of section 3121(b)(8) (and

are not described in subparagraph (A) of such section).

26 U.S.C. § 5000A - Requirement to maintain minimum

essential coverage

(a) Requirement to maintain minimum essential coverage

An applicable individual shall for each month beginning

after 2013 ensure that the individual, and any dependent of

the individual who is an applicable individual, is covered

under minimum essential coverage for such month.

(b) Shared responsibility payment

(1) In general

If a taxpayer who is an applicable individual, or an

applicable individual for whom the taxpayer is liable under

paragraph (3), fails to meet the requirement of subsection

(a) for 1 or more months, then, except as provided in

subsection (e), there is hereby imposed on the taxpayer a

penalty with respect to such failures in the amount

determined under subsection (c).

(2) Inclusion with return

Any penalty imposed by this section with respect to any

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month shall be included with a taxpayer’s return under

chapter 1 for the taxable year which includes such month.

(3) Payment of penalty If an individual with respect to

whom a penalty is imposed by this section for any month—

(A) is a dependent (as defined in section 152) of another

taxpayer for the other taxpayer’s taxable year including

such month, such other taxpayer shall be liable for such

penalty, or

(B) files a joint return for the taxable year including such

month, such individual and the spouse of such individual

shall be jointly liable for such penalty.

(1) In general The amount of the penalty imposed by this

section on any taxpayer for any taxable year with respect to

failures described in subsection (b)(1) shall be equal to the

lesser of—

(A) the sum of the monthly penalty amounts determined

under paragraph (2) for months in the taxable year during

which 1 or more such failures occurred, or

(B) an amount equal to the national average premium for

qualified health plans which have a bronze level of

coverage, provide coverage for the applicable family size

involved, and are offered through Exchanges for plan years

beginning in the calendar year with or within which the

taxable year ends.

(2) Monthly penalty amounts For purposes of paragraph (l)

(A), the monthly penalty amount with respect to any

taxpayer for any month during which any failure described

in subsection (b)(l) occurred is an amount equal to 1/12 of

the greater of the following amounts:

(A) Flat dollar amount An amount equal to the lesser of—

(i) the sum of the applicable dollar amounts for all

individuals with respect to whom such failure occurred

during such month, or

(ii) 300 percent of the applicable dollar amount (determined

without regard to paragraph (3)(C)) for the calendar year

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with or within which the taxable year ends.

(B) Percentage of income An amount equal to the following

percentage of the excess of the taxpayer’s household income

for the taxable year over the amount of gross income

specified in section 6012(a)(1) with respect to the taxpayer

for the taxable year:

(i) 1.0 percent for taxable years beginning in 2014.

(ii) 2.0 percent for taxable years beginning in 2015.

(iii) Zero percent for taxable years beginning after 2015.

(3) Applicable dollar amount For purposes of paragraph (l)

(A) In general

Except as provided in subparagraphs (B) and (C), the

applicable dollar amount is $0.

(B) Phase in

The applicable dollar amount is $95 for 2014 and $325 for

2015.

If an applicable individual has not attained the age of 18 as

of the beginning of a month, the applicable dollar amount

with respect to such individual for the month shall be equal

to one-half of the applicable dollar amount for the calendar

year in which the month occurs.

(4) Terms relating to income and families For purposes of

this section—

(A) Family size

The family size involved with respect to any taxpayer shall

be equal to the number of individuals for whom the

taxpayer is allowed a deduction under section 151 (relating

to allowance of deduction for personal exemptions) for the

taxable year.

(B) Household income The term “household income” means,

with respect to any taxpayer for any taxable year, an

amount equal to the sum of—

(i) the modified adjusted gross income of the taxpayer, plus

(ii) the aggregate modified adjusted gross incomes of all

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other individuals who—

(I) were taken into account in determining the taxpayer’s

family size under paragraph (l), and

(II) were required to file a return of tax imposed by section

1 for the taxable year.

adjusted gross income” means adjusted gross income

increased by—

(i) any amount excluded from gross income under section

911, and

(ii) any amount of interest received or accrued by the

taxpayer during the taxable year which is exempt from tax.

(d) Applicable individual For purposes of this section—

(1) In general

The term “applicable individual” means, with respect to any

month, an individual other than an individual described in

paragraph (2), (3), or (4).

(2) Religious exemptions

(A) Religious conscience exemption Such term shall not

include any individual for any month if such individual has

in effect an exemption under section 1311(d)(4)(H) of the

Patient Protection and Affordable Care Act which certifies

that—

(I) such individual is a member of a recognized religious

sect or division thereof which is described in section 1402(g)

(I), and is an adherent of established tenets or teachings of

such sect or division as described in such section; or

(II) such individual is a member of a religious sect or

division thereof which is not described in section 1402(g)(1),

who relies solely on a religious method of healing, and for

whom the acceptance of medical health services would be

inconsistent with the religious beliefs of the individual.

(ii) Special rules

(I) Medical health services defined

For purposes of this subparagraph, the term “medical

health services” does not include routine dental, vision and

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hearing services, midwifery services, vaccinations,

necessary medical services provided to children, services

required by law or by a third party, and such other services

as the Secretary of Health and Human Services may

provide in implementing section 1311(d)(4)(H) of the

Patient Protection and Affordable Care Act.

(II) Attestation required

Clause (i)(II) shall apply to an individual for months in a

taxable year only if the information provided by the

individual under section 1411(b)(5)(A) of such Act includes

an attestation that the individual has not received medical

health services during the preceding taxable year.

(B) Health care sharing ministry

(0 In general

Such term shall not include any individual for any month if

such individual is a member of a health care sharing

ministry for the month.

(ii) Health care sharing ministry The term “health care

sharing ministry” means an organization—

(I) which is described in section 501(c)(3) and is exempt

from taxation under section 501(a),

(II) members of which share a common set of ethical or

religious beliefs and share medical expenses among

members in accordance with those beliefs and without

regard to the State in which a member resides or is

employed,

(III) members of which retain membership even after they

develop a medical condition,

(IV) which (or a predecessor of which) has been in existence

at all times since December 31, 1999, and medical expenses

of its members have been shared continuously and without

interruption since at least December 31, 1999, and

(V) which conducts an annual audit which is performed by

an independent certified public accounting firm in

accordance with generally accepted accounting principles

and which is made available to the public upon request.

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(3) Individuals not lawfully present

Such term shall not include an individual for any month if

for the month the individual is not a citizen or national of

the United States or an alien lawfully present in the United

States.

(4) Incarcerated individuals

Such term shall not include an individual for any month if

for the month the individual is incarcerated, other than

incarceration pending the disposition of charges.

(e) Exemptions No penalty shall be imposed under

subsection (a) with respect to—

(l) Individuals who cannot afford coverage

(A) In general

Any applicable individual for any month if the applicable

individual’s required contribution (determined on an

annual basis) for coverage for the month exceeds 8 percent

of such individual’s household income for the taxable year

described in section 1412(b)(1)(B) of the Patient Protection

and Affordable Care Act. For purposes of applying this

subparagraph, the taxpayer’s household income shall be

increased by any exclusion from gross income for any

portion of the required contribution made through a salary

reduction arrangement.

(B) Required contribution For purposes of this paragraph,

the term “required contribution” means—

(i) in the case of an individual eligible to purchase

minimum essential coverage consisting of coverage through

an eligible-employer-sponsored plan, the portion of the

annual premium which would be paid by the individual

(without regard to whether paid through salary reduction

or otherwise) for self-only coverage, or

(ii) in the case of an individual eligible only to purchase

minimum essential coverage described in subsection (0(l)

(C), the annual premium for the lowest cost bronze plan

available in the individual market through the Exchange in

the State in the rating area in which the individual resides

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(without regard to whether the individual purchased a

qualified health plan through the Exchange), reduced by

the amount of the credit allowable under section 36B for

the taxable year (determined as if the individual was

covered by a qualified health plan offered through the

Exchange for the entire taxable year).

For purposes of subparagraph (B)(i), if an applicable

individual is eligible for minimum essential coverage

through an employer by reason of a relationship to an

employee, the determination under subparagraph (A) shall

be made by reference toll] required contribution of the

employee.

(D) Indexing

In the case of plan years beginning in any calendar year

after 2014, subparagraph (A) shall be applied by

substituting for "8 percent” the percentage the Secretary of

Health and Human Services determines reflects the excess

of the rate of premium growth between the preceding

calendar year and 2013 over the rate of income growth for

such period.

(2) Taxpayers with income below filing threshold

Any applicable individual for any month during a calendar

year if the individual’s household income for the taxable

year described in section 1412(b)(1)(B) of the Patient

Protection and Affordable Care Act is less than the amount

of gross income specified in section 6012(a)(1) with respect

to the taxpayer.

(3) Members of Indian tribes

Any applicable individual for any month during which the

individual is a member of an Indian tribe (as defined in

section 45A(c)(6)).

(4) Months during short coverage gaps

(A) In general

Any month the last day of which occurred during a period

in which the applicable individual was not covered by

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minimum essential coverage for a continuous period of less

than 3 months.

(B) Special rules

For purposes of applying this paragraph—

(i) the length of a continuous period shall be determined

without regard to the calendar years in which months in

such period occur,

Oi) if a continuous period is greater than the period allowed

under subparagraph (A), no exception shall be provided

under this paragraph for any month in the period, and

(hi) if there is more than 1 continuous period described in

subparagraph (A) covering months in a calendar year, the

exception provided by this paragraph shall only apply to

months in the first of such periods.

The Secretary shall prescribe rules for the collection of the

penalty imposed by this section in cases where continuous

periods include months in more than 1 taxable year.

(5) Hardships

Any applicable individual who for any month is determined

by the Secretary of Health and Human Services under

section 1311(d)(4)(H) to have suffered a hardship with

respect to the capability to obtain coverage under a

qualified health plan.

(0 Minimum essential coverage

For purposes of this section—

(l) In general The term “minimum essential coverage”

means any of the following:

(A) Government sponsored programs

Coverage under—

(i) the Medicare program under part A of title XVIII of the

Social Security Act,

(ii) the Medicaid program under title XIX of the Social

Security Act,

(iii) the CHIP program under title XXI of the Social

Security Act or under a qualified CHIP look-alike program

(as defined in section 2107(g) of the Social Security Act),

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(iv) medical coverage under chapter 55 of title 10, United

States Code, including coverage under the TRICARE

program; [2]

(v) a health care program under chapter 17 or 18 of title 38,

United States Code, as determined by the Secretary of

Veterans Affairs, in coordination with the Secretary of

Health and Human Services and the Secretary,

(vi) a health plan under section 2504(e) of title 22, United

States Code (relating to Peace Corps volunteers); [2] or

(vii) the Nonappropriated Fund Health Benefits Program of

the Department of Defense, established under section 349

of the National Defense Authorization Act for Fiscal Year

1995 (Public Law 103-337; 10 U.S.C. 1587 note).

(B) Employer-sponsored plan

Coverage under an eligible employer-sponsored plan.

Coverage under a health plan offered in the individual

market within a State.

(D) Grandfathered health plan

Coverage under a grandfathered health plan.

(E) Other coverage

Such other health benefits coverage, such as a State health

benefits risk pool, as the Secretary of Health and Human

Services, in coordination with the Secretary, recognizes for

purposes of this subsection.

(2) Eligible employer-sponsored plan

The term “eligible employer-sponsored plan” means, with

respect to any employee, a group health plan or group

health insurance coverage offered by an employer to the

employee which is—

(A) a governmental plan (within the meaning of section

2791(d)(8) of the Public Health Service Act), or

(B) any other plan or coverage offered in the small or large

group market within a State.

Such term shall include a grandfathered health plan

described in paragraph (l)(D) offered in a group market.

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(3) Excepted benefits not treated as minimum essential

coverage The term “minimum essential coverage” shall not

include health insurance coverage which consists of

coverage of excepted benefits—

(A) described in paragraph (l) of subsection (c) of section

2791 of the Public Health Service Act; or

(B) described in paragraph (2), (3), or (4) of such subsection

if the benefits are provided under a separate policy,

certificate, or contract of insurance.

(4) Individuals residing outside United States or residents

of territories Any applicable individual shall be treated as

having minimum essential coverage for any month—

(A) if such month occurs during any period described in

subparagraph (A) or (B) of section 911(d)(1) which is

applicable to the individual, or

(B) if such individual is a bona fide resident of any

possession of the United States (as determined under

section 937(a)) for such month.

(5) Insurance-related terms

Any term used in this section which is also used in title I of

the Patient Protection and Affordable Care Act shall have

the same meaning as when used in such title.

(g) Administration and procedure

(1) In general

The penalty provided by this section shall be paid upon

notice and demand by the Secretary, and except as provided

in paragraph (2), shall be assessed and collected in the

same manner as an assessable penalty under subchapter B

of chapter 68.

(2) Special rules Notwithstanding any other provision of

law—

(A) Waiver of criminal penalties

In the case of any failure by a taxpayer to timely pay any

penalty imposed by this section, such taxpayer shall not be

subject to any criminal prosecution or penalty with respect

to such failure.

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(B) Limitations on liens and levies The Secretary shall not

(i) file notice of lien with respect to any property of a

taxpayer by reason of any failure to pay the penalty

imposed by this section, or

(ii)levy on any such property with respect to such failure.

28 U.S. Code § 1254 - Courts of appeals; certiorari;

certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(l) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

of judgment or decree;

28 U.S.C. § 1331 - Federal question

The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of

the United States.

28 U.S. Code § 1340 - Internal revenue; customs duties

The district courts shall have original jurisdiction of any

civil action arising under any Act of Congress providing for

internal revenue, or revenue from imports or tonnage

except matters within the jurisdiction of the Court of

International Trade.

28 U.S. Code § 1343 - Civil rights and elective franchise

(a) The district courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any

person:

(1) To recover damages for injury to his person or property,

or because of the deprivation of any right or privilege of a

citizen of the United States, by any act done in furtherance

of any conspiracy mentioned in section 1985 of Title 42;

(2) To recover damages from any person who fails to

A-31

prevent or to aid in preventing any wrongs mentioned in

section 1985 of Title 42 which he had knowledge were about

to occur and power to prevent;

(3) To redress the deprivation, under color of any State law,

statute, ordinance, regulation, custom or usage, of any

right, privilege or immunity secured by the Constitution of

the United States or by any Act of Congress providing for

equal rights of citizens or of all persons within the

jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief

under any Act of Congress providing for the protection of

civil rights, including the right to vote.

(b) For purposes of this section—

(1) the District of Columbia shall be considered to be a

State; and

(2) any Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the

District of Columbia.

28 U.S. Code § 1346 - United States as defendant

(a) The district courts shall have original jurisdiction,

concurrent with the United States Court of Federal Claims,

of:

(1) Any civil action against the United States for the

recovery of any internal-revenue tax alleged to have been

erroneously or illegally assessed or collected, or any penalty

claimed to have been collected without authority or any

sum alleged to have been excessive or in any manner

wrongfully collected under the internal-revenue laws;

(2) Any other civil action or claim against the United

States, not exceeding $10,000 in amount, founded either

upon the Constitution, or any Act of Congress, or any

regulation of an executive department, or upon any express

or implied contract with the United States, or for liquidated

or unliquidated damages in cases not sounding in tort,

except that the district courts shall not have jurisdiction of

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any civil action or claim against the United States founded

upon any express or implied contract with the United

States or for liquidated or unliquidated damages in cases

not sounding in tort which are subject to sections 7104(b)(1)

and 7107(a)(1) of title 41. For the purpose of this

paragraph, an express or implied contract with the Army

and Air Force Exchange Service, Navy Exchanges, Marine

Corps Exchanges, Coast Guard Exchanges, or Exchange

Councils of the National Aeronautics and Space

Administration shall be considered an express or implied

contract with the United States.

(b)

(1) Subject to the provisions of chapter 171 of this title, the

district courts, together with the United States District

Court for the District of the Canal Zone and the District

Court of the Virgin Islands, shall have exclusive jurisdiction

of civil actions on claims against the United States, for

money damages, accruing on and after January 1, 1945, for

injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope

of his office or employment, under circumstances where the

United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the

act or omission occurred.

(2) No person convicted of a felony who is incarcerated

while awaiting sentencing or while serving a sentence may

bring a civil action against the United States or an agency,

officer, or employee of the Government, for mental or

emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a sexual act

(as defined in section 2246 of title 18).

jurisdiction of any set-off, counterclaim, or other claim or

demand whatever on the part of the United States against

any plaintiff commencing an action under this section.

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(d) The district courts shall not have jurisdiction under this

section of any civil action or claim for a pension.

(e) The district courts shall have original jurisdiction of any

civil action against the United States provided in section

6226, 6228(a), 7426, or 7428 (in the case of the United

States district court for the District of Columbia) or section

7429 of the Internal Revenue Code of 1986.

(f) The district courts shall have exclusive original

jurisdiction of civil actions under section 2409a to quiet title

to an estate or interest in real property in which an interest

is claimed by the United States.

(g) Subject to the provisions of chapter 179, the district

courts of the United States shall have exclusive jurisdiction

over any civil action commenced under section 453(2) of

title 3, by a covered employee under chapter 5 of such title.

28 U.S. Code § 1361 - Action to compel an officer of the

United States to perform his duty

The district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.

28 U.S. Code § 1367 - Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as

expressly provided otherwise by Federal statute, in any

civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article

III of the United States Constitution. Such supplemental

jurisdiction shall include claims that involve the joinder or

intervention of additional parties.

(b) In any civil action of which the district courts have

original jurisdiction founded solely on section 1332 of this

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title, the district courts shall not have supplemental

jurisdiction under subsection (a) over claims by plaintiffs

against persons made parties under Rule 14, 19, 20, or 24 of

the Federal Rules of Civil Procedure, or over claims by

persons proposed to be joined as plaintiffs under Rule 19 of

such rules, or seeking to intervene as plaintiffs under Rule

24 of such rules, when exercising supplemental jurisdiction

over such claims would be inconsistent with the

jurisdictional requirements of section 1332.

jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or

claims over which the district court has original

jurisdiction,

(3) the district court has dismissed all claims over which it

has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under

subsection (a), and for any other claim in the same action

that is voluntarily dismissed at the same time as or after

the dismissal of the claim under subsection (a), shall be

tolled while the claim is pending and for a period of 30 days

after it is dismissed unless State law provides for a longer

tolling period.

(e) As used in this section, the term “State” includes the

District of Columbia, the Commonwealth of Puerto Rico,

and any territory or possession of the United States.

28 U.S. Code § 1391(e) Actions Where Defendant Is

Officer or Employee of the United States.—

(e) Actions Where Defendant Is Officer or Employee of the

United States.— (l)In general.—A civil action in which a

defendant is an officer or employee of the United States or

any agency thereof acting in his official capacity or under

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color of legal authority, or an agency of the United States,

or the United States, may, except as otherwise provided by

law, be brought in any judicial district in which (A) a

defendant in the action resides, (B) a substantial part of the

events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action

is situated, or (C) the plaintiff resides if no real property is

involved in the action. Additional persons may be joined as

parties to any such action in accordance with the Federal

Rules of Civil Procedure and with such other venue

requirements as would be applicable if the United States or

one of its officers, employees, or agencies were not a party.

28 U.S. Code § 2201 - Creation of remedy

(a) In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes other than actions

brought under section 7428 of the Internal Revenue Code of

1986, a proceeding under section 505 or 1146 of title 11, or

in any civil action involving an antidumping or

countervailing duty proceeding regarding a class or kind of

merchandise of a free trade area country (as defined in

section 516A(f)(lO) of the Tariff Act of 1930), as determined

by the administering authority, any court of the United

States, upon the fifing of an appropriate pleading, may

declare the rights and other legal relations of any

interested party seeking such declaration, whether or not

further relief is or could be sought. Any such declaration

shall have the force and effect of a final judgment or decree

and shall be reviewable as such.

(b) For limitations on actions brought with respect to drug

patents see section 505 or 512 of the Federal Food, Drug,

and Cosmetic Act, or section 351 of the Public Health

Service Act.

28 U.S. Code § 2202 - Further relief

Further necessary or proper relief based on a declaratory

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judgment or decree may be granted, after reasonable notice

and hearing, against any adverse party whose rights have

been determined by such judgment.

28 U.S. Code § 2465 - Return of property to claimant;

liability for wrongful seizure; attorney fees, costs, and

interest

(a) Upon the entry of a judgment for the claimant in any

proceeding to condemn or forfeit property seized or arrested

under any provision of Federal law—

(1) such property shall be returned forthwith to the

claimant or his agent; and

(2) if it appears that there was reasonable cause for the

seizure or arrest, the court shall cause a proper certificate

thereof to be entered and, in such case, neither the person

who made the seizure or arrest nor the prosecutor shall be

liable to suit or judgment on account of such suit or

prosecution, nor shall the claimant be entitled to costs,

except as provided in subsection (b).

(b)

(l) Except as provided in paragraph (2), in any civil

proceeding to forfeit property under any provision of

Federal law in which the claimant substantially prevails,

the United States shall be liable for—

(A) reasonable attorney fees and other litigation costs

reasonably incurred by the claimant;

(B) post-judgment interest, as set forth in section 1961 of

this title; and

instruments, or the proceeds of an interlocutory sale—

(i) interest actually paid to the United States from the date

of seizure or arrest of the property that resulted from the

investment of the property in an interest-bearing account or

instrument; and

(ii) an imputed amount of interest that such currency,

instruments, or proceeds would have earned at the rate

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applicable to the 30-day Treasury Bill, for any period

during which no interest was paid (not including any period

when the property reasonably was in use as evidence in an

official proceeding or in conducting scientific tests for the

purpose of collecting evidence), commencing 15 days after

the property was seized by a Federal law enforcement

agency, or was turned over to a Federal law enforcement

agency by a State or local law enforcement agency.

(2)

(A) The United States shall not be required to disgorge the

value of any intangible benefits nor make any other

payments to the claimant not specifically authorized by this

subsection.

(B) The provisions of paragraph (l) shall not apply if the

claimant is convicted of a crime for which the interest of the

claimant in the property was subject to forfeiture under a

Federal criminal forfeiture law.

United States shall not be liable for costs and attorneys fees

associated with any such claim if the United States—

(i) promptly recognizes such claim;

(ii) promptly returns the interest of the claimant in the

property to the claimant, if the property can be divided

without difficulty and there are no competing claims to that

portion of the property;

(iii) does not cause the claimant to incur additional,

reasonable costs or fees; and

(iv) prevails in obtaining forfeiture with respect to one or

more of the other claims.

(D) If the court enters judgment in part for the claimant

and in part for the Government, the court shall reduce the

award of costs and attorney fees accordingly.

28 U.S. Code § 2674 - liability of United States

The United States shall be liable, respecting the provisions

of this title relating to tort claims, in the same manner and

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to the same extent as a private individual under like

circumstances, but shall not be liable for interest prior to

judgment or for punitive damages.

If, however, in any case wherein death was caused, the law

of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall be

liable for actual or compensatory damages, measured by the

pecuniary injuries resulting from such death to the persons

respectively, for whose benefit the action was brought, in

lieu thereof.

With respect to any claim under this chapter, the United

States shall be entitled to assert any defense based upon

judicial or legislative immunity which otherwise would

have been available to the employee of the United States

whose act or omission gave rise to the claim, as well as any

other defenses to which the United States is entitled.

With respect to any claim to which this section applies, the

Tennessee Valley Authority shall be entitled to assert any

defense which otherwise would have been available to the

employee based upon judicial or legislative immunity,

which otherwise would have been available to the employee

of the Tennessee Valley Authority whose act or omission

gave rise to the claim as well as any other defenses to

which the Tennessee Valley Authority is entitled under this

chapter.

42 U.S. Code § 2000bb-l - Free exercise of religion

protected

(a) In general

Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule of

general applicability, except as provided in subsection (b).

(b) Exception Government may substantially burden a

person’s exercise of religion only if it demonstrates that

application of the burden to the person—

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(1) is in furtherance of a compelling governmental interest;

and

(2) is the least restrictive means of furthering that

compelling governmental interest.

A person whose religious exercise has been burdened in

violation of this section may assert that violation as a claim

or defense in a judicial proceeding and obtain appropriate

relief against a government. Standing to assert a claim or

defense under this section shall be governed by the general

rules of standing under article III of the Constitution.

42 U.S. Code § 18022(a) - Essential health benefits

requirements

(a) Essential health benefits package In this title,[l] the

term “essential health benefits package” means, with

respect to any health plan, coverage that—

(1) provides for the essential health benefits defined by the

Secretary under subsection (b);

(2) limits cost-sharing for such coverage in accordance with

subsection (c); and

(3) subject to subsection (e), provides either the bronze,

silver, gold, or platinum level of coverage described in

subsection (d).

(b) Essential health benefits

(l) In general Subject to paragraph (2), the Secretary shall

define the essential health benefits, except that such

benefits shall include at least the following general

categories and the items and services covered within the

cate goriest

(A) Ambulatory patient services,

(B) Emergency services.

(D) Maternity and newborn care.

(E) Mental health and substance use disorder services,

including behavioral health treatment.

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(F) Prescription drugs.

(G) Rehabilitative and habilitative services and devices.

(H) Laboratory services.

(I) Preventive and wellness services and chronic disease

management.

(J) Pediatric services, including oral and vision care.

(2) Limitation

(A) In general

The Secretary shall ensure that the scope of the essential

health benefits under paragraph (l) is equal to the scope of

benefits provided under a typical employer plan, as

determined by the Secretary. To inform this determination,

the Secretary of Labor shall conduct a survey of employersponsored coverage to determine the benefits typically

covered by employers, including multiemployer plans, and

provide a report on such survey to the Secretary.

42 U.S. Code § 18091(1) - Requirement to maintain

minimum essential coverage; findings

Congress makes the following findings:

(1) In general

The individual responsibility requirement provided for in

this section (in this section referred to as the “requirement”)

is commercial and economic in nature, and substantially

affects interstate commerce, as a result of the effects

described in paragraph (2).

(2) Effects on the national economy and interstate

commerce The effects described in this paragraph are the

following:

45 CFR 147.130(a)(1) - Coverage of preventive health

services.

(a)Services (l)In general. Beginning at the time described in paragraph

(b) of this section and subject to §§ 147.131, 147.132, and

147.133, a group health plan, or a health insurance issuer

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offering group or individual health insurance coverage,

must provide coverage for all of the following items and

services, and may not impose any cost-sharing

requirements (such as a copayment, coinsurance, or a

deductible) for(i) Evidence-based items or services that have in effect a

rating of A or B in the current recommendations of the

United States Preventive Services Task Force with respect

to the individual involved (except as otherwise provided in

paragraph (c) of this section);

(ii) Immunizations for routine use in children, adolescents,

and adults that have in effect a recommendation from the

Advisory Committee on Immunization Practices of the

Centers for Disease Control and Prevention with respect to

the individual involved (for this purpose, a recommendation

from the Advisory Committee on Immunization Practices of

the Centers for Disease Control and Prevention is

considered in effect after it has been adopted by the

Director of the Centers for Disease Control and Prevention,

and a recommendation is considered to be for routine use if

it is listed on the Immunization Schedules of the Centers

for Disease Control and Prevention);

(iii) With respect to infants, children, and adolescents,

evidence-informed preventive care and screenings provided

for in comprehensive guidelines supported by the Health

Resources and Services Administration;

(iv) With respect to women, such additional preventive care

and screenings not described in paragraph (a)(l)(i) of this

section as provided for in comprehensive guidelines

supported by the Health Resources and Services

Administration for purposes of section 2713(a)(4) of the

Public Health Service Act, subject to §§ 147.131, 147.132,

and 147.133...

§147.132 Religious exemptions in connection with

coverage of certain preventive health services.

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(3) An entity established under title I of the ACA.

Department means the U.S. Department of Health and

Human Services...

45 CFR § 92.101 Discrimination prohibited.

General.

(1) Except as provided in title I of the ACA, an individual

must not, on the basis of race, color, national origin, sex,

age, disability, or any combination thereof, be excluded from

participation in, be denied the benefits of, or otherwise be

subjected to discrimination under any health program or

activity operated by a covered entity.

(2) Discrimination on the basis of sex includes, but is not

limited to, discrimination on the basis of- (i) Sex

characteristics, including intersex traits; Gi) Pregnancy or

related conditions; Gii) Sexual orientation; Gv) Gender

identity; and (v) Sex stereotypes.

(b) Specific prohibitions on discrimination.

(l) In any health program or activity to which this part

applies:

G) A recipient and State Exchange must comply with the

specific prohibitions on discrimination in the Department's

implementing regulations for title VI, section 504, title IX,

and the Age Act, found at 45 CFR parts 80, 84, 86 (subparts

C and D), and 91 (subpart B), respectively. Where this

paragraph (b) cross-references regulatory provisions that

use the term “recipient,” the term “recipient or State

Exchange” shall apply in its place. Where this paragraph

(b) cross-references regulatory provisions that use the term

“student,” “employee,” or “applicant,” these terms shall be

replaced with “individual.”

Gi) The Department, including Federally-facilitated

Exchanges, must comply with specific prohibitions on

discrimination in the Department's implementing

regulations for title VI, section 504, title IX, and the Age

Act, found at 45 CFR parts 80, 85, 86 (subparts C and D),

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and 91 (subpart B), respectively. Where this paragraph (b)

cross-references regulatory provisions that use the term “a

recipient,” the term “the Department or a Federallyfacilitated Exchange” shall apply in its place. Where this

paragraph (b) cross-references regulatory provisions that

use the term “student,” “employee,” or “applicant,” these

terms shall be replaced with “individual.”

(2) The enumeration of specific prohibitions on

discrimination in paragraph (b)(l) of this section does not

limit the general applicability of the prohibition in

paragraph (a) of this section.

45 CFR § 92.206 Equal program access on the basis of

sex.

(a) A covered entity must provide individuals equal access

to its health programs and activities without discriminating

on the basis of sex.

(b) In providing access to health programs and activities, a

covered entity must not:

(1) Deny or limit health services, including those that have

been typically or exclusively provided to, or associated with,

individuals of one sex, to an individual based upon the

individual's sex assigned at birth, gender identity, or gender

otherwise recorded;

(2) Deny or limit, on the basis of an individual’s sex

assigned at birth, gender identity, or gender otherwise

recorded, a health care professional's ability to provide

health services if such denial or limitation has the effect of

excluding individuals from participation in, denying them

the benefits of, or otherwise subjecting them to

discrimination on the basis of sex under a covered health

program or activity;

(3) Adopt or apply any policy or practice of treating

individuals differently or separating them on the basis of

sex in a manner that subjects any individual to more than

de minimis harm, including by adopting a policy or

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—— ^

engaging in a practice that prevents an individual from

participating in a health program or activity consistent

with the individual's gender identity; or

(4) Deny or limit health services sought for purpose of

gender transition or other gender-affirming care that the

covered entity would provide to an individual for other

purposes if the denial or limitation is based on an

individual's sex assigned at birth, gender identity, or gender

otherwise recorded.

health service where the covered entity has a legitimate,

nondiscriminatory reason for denying or limiting that

service, including where the covered entity typically

declines to provide the health service to any individual or

where the covered entity reasonably determines that such

health service is not clinically appropriate for a particular

individual. A covered entity's determination must not be

based on unlawful animus or bias, or constitute a pretext

for discrimination. Nothing in this section is intended to

preclude a covered entity from availing itself of protections

described in §§ 92.3 and 92.302.

(d) The enumeration of specific forms of discrimination in

paragraph (b) of this section does not limit the general

applicability of the prohibition in paragraph (a) of this

section.

45 CFR § 92.207 Nondiscrimination in health insurance

coverage and other health-related coverage.

(a) A covered entity must not, in providing or administering

health insurance coverage or other health-related coverage,

discriminate on the basis of race, color, national origin, sex,

age, disability, or any combination thereof.

(b) A covered entity must not, in providing or administering

health insurance coverage or other health-related coverage:

(l) Deny, cancel, limit, or refuse to issue or renew health

insurance coverage or other health-related coverage, or

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deny or limit coverage of a claim, or impose additional cost

sharing or other limitations or restrictions on coverage, on

the basis of race, color, national origin, sex, age, disability,

or any combination thereof

(2) Have or implement marketing practices or benefit

designs that discriminate on the basis of race, color,

national origin, sex, age, disability, or any combination

thereof, in health insurance coverage or other healthrelated coverage;

(3) Deny or limit coverage, deny or limit coverage of a claim,

or impose additional cost sharing or other limitations or

restrictions on coverage, to an individual based upon the

individual's sex assigned at birth, gender identity, or gender

otherwise recorded;

(4) Have or implement a categorical coverage exclusion or

limitation for all health services related to gender

transition or other gender-affirming care;

(5) Otherwise deny or limit coverage, deny or limit coverage

of a claim, or impose additional cost sharing or other

limitations or restrictions on coverage, for specific health

services related to gender transition or other genderaffirming care if such denial, limitation, or restriction

results in discrimination on the basis of sex; or

(6) Have or implement benefit designs that do not provide

or administer health insurance coverage or other healthrelated coverage in the most integrated setting appropriate

to the needs of qualified individuals with disabilities,

including practices that result in the serious risk of

institutionalization or segregation.

service where the covered entity has a legitimate,

nondiscriminatory reason for denying or limiting coverage

of the health service or determining that such health

service fails to meet applicable coverage requirements,

including reasonable medical management techniques such

as medical necessity requirements. Such coverage denial or

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limitation must not be based on unlawful animus or bias, or

constitute a pretext for discrimination. Nothing in this

section is intended to preclude a covered entity from

availing itself of protections described in §§ 92.3 and

92.302.

(d) The enumeration of specific forms of discrimination in

paragraph (b) of this section does not limit the general

applicability of the prohibition in paragraph (a) of this

section.

Appendix G - Constitutional Provisions

Art. I, §9, cl. 4 of the US Constitution

No Capitation, or other direct, Tax shall be laid, unless in

Proportion to the Census or Enumeration herein before

directed to be maintained, (modified by sixteenth

amendment)

Art I, §2, cl. 3 of the US Constitution

[Representatives and direct Taxes shall be apportioned

among the several States which may be included within the

Union, according to their respective Numbers, which shall

be determined by adding to the whole Number of free

Persons, including those bound to Service for a Term of

Years, and excluding Indians not taxed, three fifths of all

other Persons ] (modified by section 2 of the fourteenth

amendment) The actual Enumeration shall be made within

three Years after the first Meeting of the Congress of the

United States, and within every subsequent Term of ten

Years, in such Manner as they shall by Law direct. The

number of Representatives shall not exceed one for every

thirty Thousand, but each State shall have at least one

Representative; and until such enumeration shall be made,

the State of New Hampshire shall be entitled to chuse

three, Massachusetts eight, Rhode-Island and ProvidencePlantations one, Connecticut five, New-York six, New

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.