Opposition Brief — Susan Neese, et al., Petitioners v. Robert F. Kennedy, Jr., Secretary of Health and Human Services, et al.

No. 24-1221

In the Supreme Court of the United States

SUSAN NEESE, ET AL., PETITIONERS

v.

ROBERT F. KENNEDY, JR., SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

CHARLES W. SCARBOROUGH

DAVID L. PETERS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals’ ruling that petitioners

lack Article III standing should be vacated under

United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (N.D. Tex.):

Neese v. Becerra, No. 21-cv-163 (Nov. 22, 2022)

United States Court of Appeals (5th Cir.):

Neese v. Becerra, No. 23-10078 (Dec. 16, 2024)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 5

A. The decision below would not independently have

warranted this Court’s review ......................................... 5

B. The equities counsel against vacatur ............................ 12

Conclusion ................................................................................... 13

TABLE OF AUTHORITIES

Cases:

Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023) ......... 9, 11

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................................... 12

Azar v. Garza, 584 U.S. 726 (2018) .............................. 5, 8, 12

Biden v. Texas, 597 U.S. 785 (2022) ..................................... 12

Bostock v. Clayton Cnty., 590 U.S. 644 (2020) ...................... 2

Camreta v. Greene, 563 U.S. 692 (2011) ........................ 6, 7, 9

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............... 12

Does 1-3 v. Mills, 142 S. Ct. 17 (2021) ................................... 6

Electronic Privacy Info. Ctr. v. Department of Commerce, 140 S. Ct. 2718 (2020) ............................................. 11

Liberty Cable Co. v. City of New York,

516 U.S. 1171 (1996)............................................................ 11

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................................................ 7

Military-Veterans Advocacy Inc. v. McDonough,

143 S. Ct. 2609 (2023) ........................................................... 9

Planned Parenthood Ctr. for Choice v. Abbott,

141 S. Ct. 1261 (2021) ......................................................... 10

(III)

IV

Cases—Continued:

Page

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 U.S. 422 (2007).............................................................. 10

Speech First, Inc. v. Sands, 144 S. Ct. 675 (2024) ........ 10, 11

Strong v. United States, 552 U.S. 1188 (2008) ...................... 9

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014)................................................................ 7

Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) ..................... 10

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994) ................................................................. 9

United States v. Hamburg-Amerikanische

Packetfahrt-Actien Gesellschaft,

239 U.S. 466 (1916)................................................................ 9

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) ......................................................... 5, 6, 9

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ................................................................. 7

Constitution, statutes, and rules:

U.S. Const.:

Art. III ...................................................................... 4, 7, 11

Amend. I ..................................................................... 10, 11

Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, § 1557, 124 Stat. 260

(42 U.S.C. 18116(a)) .............................................................. 2

§ 1557, 124 Stat. 260 ...................................................... 2, 3

Education Amendments of 1972, Tit. IX,

20 U.S.C. 1681(a)................................................................... 2

Sup. Ct. R.:

Rule 10 ........................................................................ 6, 8, 9

Rule 10(a) ........................................................................... 8

Rule 10(c) ........................................................................... 8

V

Miscellaneous:

Page

Exec. Order No. 14,168,

90 Fed. Reg. 8615 (Jan. 30, 2025) .................................. 5, 12

86 Fed. Reg. 27,984 (May 25, 2021) ....................................... 2

90 Fed. Reg. 20,393 (May 14, 2025) ....................................... 5

Stephen M. Shapiro et al., Supreme Court Practice

(11th ed. 2019) ................................................................... 6, 9

In the Supreme Court of the United States

No. 24-1221

SUSAN NEESE, ET AL., PETITIONERS

v.

ROBERT F. KENNEDY, JR., SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-6a)

is reported at 123 F.4th 751. The opinion and order of

the district court (Pet. App. 17a-49a) is reported at 640

F. Supp. 3d 668. The prior opinions and orders of the

district court are reported at 342 F.R.D. 399 and available at 2022 WL 1265925. The final judgment of the district court (Pet. App. 50a-51a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 16, 2024. Rehearing was denied on January

31, 2025 (Pet. App. 7a-16a). On March 3, 2025, Justice

Alito extended the time within which to file a petition

for a writ of certiorari to and including May 31, 2025.

The petition was filed on May 27, 2025. This Court’s

jurisdiction is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Section 1557 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 260, prohibits discrimination in “any health program or activity

* * * receiving Federal financial assistance” based on a

“ground prohibited under” several other statutes.

42 U.S.C. 18116(a). One of those statutes is Title IX of

the Education Amendments of 1972, which prohibits

discrimination “on the basis of sex.” 20 U.S.C. 1681(a).

In 2021, the Department of Health & Human Services (HHS) issued a notification announcing that in

light of this Court’s decision in Bostock v. Clayton

County, 590 U.S. 644 (2020), the agency would “interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) Discrimination

on the basis of sexual orientation; and (2) discrimination

on the basis of gender identity.” 86 Fed. Reg. 27,984,

27,985 (May 25, 2021). HHS explained that the notification would “guide” the agency “in processing complaints

and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.”

Ibid. The notification provided no detail on what conduct the agency deemed prohibited discrimination on

the basis of sexual orientation or gender identity.

The parties to this case agree that “HHS has never

* * * brought an enforcement action” under Section

1557 for “a medical provider’s refusal to provide services outside its specialty area.” Gov’t C.A. Br. 22; see

C.A. Oral Arg. at 23:24-23:35, https://www.ca5.uscourts.

gov/OralArgRecordings/23/23-10078_1-8-2024.mp3 (petitioners noting lack of any “past enforcement action”).

2. Petitioners Susan Neese and James Hurly are

doctors subject to Section 1557. Pet. App. 19a. Neese

practices general internal medicine, and Hurly is a

3

pathologist who diagnoses patients. Id. at 2a. Petitioners are generally willing to treat “transgender patients.” Id. at 19a-20a. But “both claim to be ‘unwilling

to provide gender affirming care, in at least some situations, to patients who assert a gender identity that departs from their biological sex.’ ” Id. at 2a. Neese is

unwilling “to assist minors with transitioning,” which

“is not within her medical specialty.” Id. at 2a-3a. And

both petitioners wish to provide care “consistent with”

“transgender patients[’] * * * biological sex,” such as

“informing a biological male who identifies as a woman

of her prostate cancer diagnosis.” Id. at 3a.

Although neither petitioner “believes that their medical practices constitute gender-identity discrimination,” they “fear[ed] that HHS w[ould] view their practices as violating the Notification.” Pet App. 3a. They

filed this pre-enforcement suit on behalf of a proposed

class of all healthcare providers subject to Section 1557,

claiming the notification was unlawful because HHS erroneously interpreted the governing statute. Id. at 21a.

3. The district court denied the government’s motion to dismiss for lack of subject-matter jurisdiction,

certified the proposed class, and entered summary

judgment for petitioners. 2022 WL 1265925; 342 F.R.D.

399; Pet. App. 17a-49a. As relevant here, the court

ruled that petitioners had standing because they faced

a “credible threat” that HHS would enforce the notification against them. Pet. App. 23a (citation omitted).

And it held the notification unlawful because “Bostock

does not apply to Section 1557 or Title IX.” Id. at 24a.

It set aside the notification and entered declaratory relief. Id. at 50a-51a.

4. A unanimous panel of the Fifth Circuit reversed

in a per curiam opinion. Pet. App. 1a-5a.

4

The court of appeals held that petitioners lacked Article III standing. The court explained that “a plaintiff

must have suffered an injury that is ‘concrete and particularized’ and ‘actual or imminent.’ ” Pet. App. 3a (citation omitted). And the “right to pre-enforcement review is qualified and permitted only ‘under circumstances

that render the threatened enforcement sufficiently imminent.’ ” Id. at 4a (citation omitted).

Applying those principles, the court of appeals determined that petitioners had “not met their burden to establish standing in this case.” Pet. App. 4a. They offered “no evidence that an enforcement proceeding is

imminent,” that “HHS w[ould] view” their practices as

discrimination, or that their practices had been “chilled

or otherwise affected.” Ibid. Because they “failed to

show that they are actually violating the Notification,

much less that they face a credible threat of enforcement,” they “d[id] not have standing.” Ibid.

Judge Jones concurred. Pet. App. 5a-6a. She emphasized that the government “affirm[ed] the plaintiffs

are not facing any ‘credible threat’ of prosecution for

treating biological men or women according to their

physical characteristics.” Id. at 5a (citation omitted).

Indeed, “HHS has never taken the position that such

conduct constitutes gender-identity discrimination.”

Ibid. So, “nothing in the briefing or argument by HHS

implie[d] that the plaintiffs faced a credible threat of investigation or losing federal funds.” Id. at 6a.

After the court of appeals’ decision, a judge sua

sponte called for a poll on rehearing en banc. Pet. App.

7a. The court denied rehearing by a vote of 16-1. Id. at

8a. Judge Duncan, joined by Judges Jones, Smith, Willett, Oldham, Engelhardt, and Wilson, wrote separately

to “concur in the denial of en banc rehearing” because

5

“there was no plausible reason to rehear this case.” Id.

at 8a-10a. Judge Ho dissented. Id. at 10a-16a.

5. On January 20, 2025, President Trump issued Executive Order No. 14,168, which directed agencies to

“correct” the “prior Administration[’s]” extension of

Bostock to “sex-based distinctions in agency activities”

under statutes including Title IX and to “rescind all

guidance documents inconsistent with the requirements

of this order.” 90 Fed. Reg. 8615, 8616-8617 (Jan. 30,

2025). HHS rescinded the notification at issue here on

May 14, 2025. Pet. App. 52a-54a; see 90 Fed. Reg.

20,393, 20,394 (May 14, 2025).

ARGUMENT

Petitioners agree (Pet. 5-7) this case is moot due to

rescission of the challenged notification, and the only

relief they seek is vacatur of the court of appeals’ decision under United States v. Munsingwear, Inc., 340

U.S. 36 (1950). But “not every moot case will warrant

vacatur”; rather, because vacatur for mootness “is

rooted in equity, the decision whether to vacate turns

on ‘the conditions and circumstances of the particular

case.’ ” Azar v. Garza, 584 U.S. 726, 729 (2018) (per curiam) (citation omitted). Vacatur is inappropriate here.

The case would not otherwise have warranted certiorari, especially since the lower court’s ruling on one jurisdictional ground does not warrant vacatur on a different jurisdictional ground. And the equities counsel

against vacatur.

A. The Decision Below Would Not Independently Have

Warranted This Court’s Review

1. a. Vacatur of a lower court’s decision due to intervening mootness is generally available only to “those

who have been prevented from obtaining the review to

6

which they are entitled.” Camreta v. Greene, 563 U.S.

692, 712 (2011) (quoting Munsingwear, 340 U.S. at 39).

Because the decision whether to grant certiorari on any

issue (including mootness) “is not a matter of right, but

of judicial discretion,” Sup. Ct. R. 10, it follows that petitioners who do not meet Rule 10’s criteria are not entitled to vacatur either. Cf. Does 1-3 v. Mills, 142 S. Ct.

17, 18 (2021) (Barrett, J., concurring in the denial of application for injunctive relief ) (applying Rule 10’s criteria to a request for injunction, another form of discretionary equitable relief ).

The United States has thus consistently taken the

position that when a case becomes moot after the court

of appeals enters its judgment but before this Court

acts on a petition for a writ of certiorari, Munsingwear

vacatur is appropriate only if the question presented

would have merited this Court’s review absent the intervening mootness. See, e.g., Gov’t Br. in Opp. at

11-12, Military-Veterans Advocacy Inc. v. McDonough,

143 S. Ct. 2609 (2023) (No. 22-605); Gov’t Br. in Opp. at

6-8, Electronic Privacy Info. Ctr. v. Department of

Commerce, 140 S. Ct. 2718 (2020) (No. 19-777); Pet. at

23 n.4, Garza, supra (No. 17-654); Gov’t Br. in Opp. at

5, Strong v. United States, 552 U.S. 1188 (2008) (No.

07-6432); Gov’t Br. in Opp. at 6, 15-16, Liberty Cable Co.

v. City of New York, 516 U.S. 1171 (1996) (No. 93-953);

Gov’t Br. in Opp. at 4-8, Velsicol Chem. Corp. v. United

States, 435 U.S. 942 (1978) (No. 77-900).

Indeed, “observation of the Court’s behavior across

a broad spectrum of cases since 1978” indicates that the

Court “will simply deny certiorari” in “arguably moot

cases unless the petition presents an issue (other than

mootness) worthy of review.” Stephen M. Shapiro et al.,

Supreme Court Practice § 19.4, at 19-28 & n.34 (11th ed.

7

2019); cf. Camreta, 563 U.S. at 713 (vacating under

Munsingwear where the court of appeals’ decision was

independently “appropriate for review”).

b. Vacatur is unwarranted here because the court of

appeals’ decision does not present an issue that independently merits review. The court’s ruling that petitioners lack standing is correct and does not conflict

with the decisions of any other court of appeals.

One indispensable requirement for establishing Article III standing is that the plaintiff must have suffered

a “concrete and particularized” injury that is “ ‘actual or

imminent, not “conjectural” or “hypothetical.” ’ ” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (citation omitted). Where plaintiffs bring a pre-enforcement

suit based on fear of future enforcement, they must

show “ ‘a credible threat of prosecution’ ” that “render[s]

the threatened enforcement sufficiently imminent.”

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159

(2014) (citation omitted). By contrast, plaintiffs “lack

standing” to bring a pre-enforcement suit against a defendant that “possesses no intention to file an” enforcement action against them. Whole Woman’s Health v.

Jackson, 595 U.S. 30, 48 (2021).

Applying these principles, the court of appeals correctly held that petitioners lack standing to challenge

HHS’s notification because they “failed to show that

they are actually violating the Notification, much less

that they face a credible threat of enforcement.” Pet.

App. 4a. The court explained that petitioners had not

“offer[ed] any evidence that HHS” viewed their medical

practices—i.e., their efforts to ensure “that the physical

bodies of their patients are cared for properly”—as

“gender-identity discrimination.” Id. at 3a-4a. To the

8

contrary, as Judge Jones emphasized in her concurrence, “the government readily affirm[ed] the plaintiffs

are not facing any ‘credible threat’ of prosecution for

treating biological men or women according to their

physical characteristics.” Id. at 5a (citation omitted).

HHS has never brought an enforcement action for such

conduct and disavowed any intent to do so even before

rescinding the notification. See pp. 2, 4, supra.

The court of appeals’ narrow and fact-specific decision does not present any “compelling” circumstances

that typically justify granting a writ of certiorari. Sup.

Ct. R. 10. The decision does not “conflict with the decision of another United States court of appeals” or “relevant decisions of this Court.” Sup. Ct. R. 10(a) and (c).

Nor does this run-of-the-mill application of standing

doctrine resolve an unsettled, “important question of

federal law.” Sup. Ct. R. 10(c). It “should surprise no

one” that petitioners “chose not to seek en banc” rehearing below, because “there was no plausible reason

to rehear this case.” Pet. App. 8a (Duncan, J., concurring in the denial of rehearing en banc).

c. Petitioners do not contend that this case satisfies

this Court’s ordinary certiorari criteria, or even that the

Fifth Circuit erred. They instead deny any need to

show the case “would have been independently certworthy.” Pet. 8-9. According to them, “summary vacatur

is warranted” whenever a case is moot and the mootness

is “attributable to the actions of the government.”

Pet. 8 (arguing that “[n]othing more is needed”).

Petitioners’ broad theory of automatic vacatur contravenes this Court’s longstanding recognition that “not

every moot case will warrant vacatur” and “the decision

whether to vacate turns on ‘the conditions and circumstances of the particular case.’ ” Garza, 584 U.S. at 729

9

(quoting United States v. Hamburg-Amerikanische

Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 478 (1916)).

Vacatur due to intervening mootness is generally available only to litigants “who have been prevented from

obtaining the review to which they are entitled.”

Camreta, 563 U.S. at 712 (quoting Munsingwear, 340

U.S. at 39). And no petitioner is “entitled” to review on

a writ of certiorari, ibid., which “is not a matter of right,

but of judicial discretion,” Sup. Ct. R. 10.

Petitioners’ theory is also inconsistent with this

“Court’s behavior across a broad spectrum of cases” indicating that “the Court denies certiorari in arguably

moot cases unless the petition presents an issue (other

than mootness) worthy of review.” Shapiro et al., Supreme Court Practice § 19.4, at 19-28 n.34; see, e.g.,

Military-Veterans Advocacy Inc. v. McDonough, 143

S. Ct. 2609 (2023); Strong v. United States, 552 U.S.

1188 (2008). Petitioners would transform vacatur from

an “extraordinary remedy,” U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 26 (1994), into the

norm. But, “[a]s an equitable remedy, vacatur ‘is not

granted as a matter of course.’ ” Acheson Hotels, LLC

v. Laufer, 601 U.S. 1, 16 (2023) (Jackson, J., concurring

in the judgment) (citation omitted). Far from hewing to

“this Court’s longstanding practice,” Pet. 8, petitioners

defy the longstanding body of cases limiting the Court’s

exercise of its equitable authority under Munsingwear.

To support their theory, petitioners cite just two

cases that granted vacatur without expressly “discussing whether the court of appeals’ ruling would have

been certworthy in the absence of mootness.” Pet. 9.

But petitioners vastly overread these two summary dispositions in positing that they departed sub silentio

from the “requirement that petitioners seeking vacatur

10

under Munsingwear demonstrate that the court of appeals’ ruling would have been independently certworthy.” Pet. 8-9. It “bears emphasis that none of these

cases addresses the propriety of ” vacatur absent

certworthiness, and “[l]ike a ‘drive-by-jurisdictional

rulin[g],’ implicit acquiescence to a broad remedy ‘ha[s]

no precedential effect.’ ” Trump v. CASA, Inc., 145

S. Ct. 2540, 2553 n.7 (2025) (citation omitted; second and

third sets of brackets in original).

Regardless, both of petitioners’ cited cases presented considerably stronger grounds for certiorari.

Speech First, Inc. v. Sands, 144 S. Ct. 675 (2024), raised

an “important” First Amendment issue that “split” circuits, id. at 676 (Thomas, J., dissenting), and the respondent acquiesced in certiorari for purposes of vacatur, Br. in Resp. at 16, Speech First, supra (No. 23-156).

Planned Parenthood Center for Choice v. Abbott, 141

S. Ct. 1261 (2021), involved decisions resolving challenges to a Texas executive order banning most abortions in the COVID-19 pandemic, which even the respondents admitted “st[ood] as canonical decisions”

that were “cited hundreds of times in courts across the

country.” Br. in Opp. at 1, Planned Parenthood, supra

(No. 20-305). By contrast, the Fifth Circuit here resolved a narrow, factbound standing issue in a short per

curiam that undisputedly does not independently warrant certiorari.

2. An independent reason not to vacate is that the

court of appeals ruled on jurisdictional grounds, which

it would have had “leeway” to rule on even had mootness

arisen earlier. Sinochem Int’l Co. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 431 (2007). Granting certiorari and vacating one jurisdictional disposition to replace it with another jurisdictional disposition would

11

make little sense and would contravene the rule that

federal courts “can address jurisdictional issues in any

order [they] choose.” Acheson Hotels, 601 U.S. at 4. Petitioners are thus mistaken in asserting it “does not

matter” for Munsingwear purposes that the court below “dismissed the petitioners’ claims for lack of Article

III standing rather than rejecting those claims on the

merits.” Pet. 9.

Petitioners are further mistaken in suggesting that

the vacatur of a court of appeals’ decision addressing

standing in Speech First justifies the same relief here.

Pet. 9-10. Although the lower court in Speech First

framed its rejection of one claim on standing grounds,

its reasoning for doing so—that the challenged university policy “does not objectively chill” speech—implicated

key issues of “First Amendment rights.” 144 S. Ct. at

675, 678 (Thomas, J., dissenting); see Pet. at i, Speech

First, supra (No. 23-156) (“The question presented is:

Whether bias-response teams objectively chill students’

speech.”). The summary disposition of a petition for

certiorari on that merits-inflected question does not

suggest that vacatur should issue as a matter of course

in cases decided on Article III standing grounds. See

p. 10, supra. To the contrary, this Court routinely declines to vacate decisions that ruled against plaintiffs on

standing or other jurisdictional grounds. E.g., Electronic Privacy Info. Ctr. v. Department of Commerce,

140 S. Ct. 2718 (2020) (standing); Liberty Cable Co. v.

City of New York, 516 U.S. 1171 (1996) (ripeness). It

should do the same here.

12

B. The Equities Counsel Against Vacatur

Because vacatur “is rooted in equity, the decision

whether to vacate turns on ‘the conditions and circumstances of the particular case.’ ” Garza, 584 U.S. at 729

(citation omitted). The equities here disfavor vacatur.

This is not a case where a prevailing party improperly frustrated further review. After a change in administration, the President, who is not a party here, issued an executive order to “correct” the “prior Administration[’s]” “misapplication” of Bostock because he

deemed it “legally untenable.” 90 Fed. Reg. 8615, 8616

(Jan. 30, 2025). “It is hardly improper for” agencies to

follow “the philosophy of the administration.” Biden v.

Texas, 597 U.S. 785, 812 (2022) (citations omitted).

Nor is there any need to preserve a “path for future

relitigation.” Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) (citation omitted). HHS

never enforced the challenged notification against anyone in petitioners’ position, even before rescinding it.

And it is purely speculative whether HHS might someday seek to issue another notification to which petitioners would object, which could then be litigated on its

own terms. See City of Los Angeles v. Lyons, 461 U.S.

95, 108 (1983).

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

CHARLES W. SCARBOROUGH

DAVID L. PETERS

Attorneys

JULY 2025