UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BELMONT ABBEY COLLEGE,

Plaintiff, v. Civil Action No. 11-1989 (JEB) KATHLEEN SEBELIUS, Secretary of the U.S. Department of Health and Human Services, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

On July 18, 2012, this Court held that it lacked subject-matter jurisdiction to hear

Plaintiff Belmont Abbey’s challenge to contraceptive-coverage regulations issued by

Defendants. It accordingly dismissed the instant action without prejudice. On July 23, Belmont

Abbey moved for reconsideration under Federal Rule of Civil Procedure 59(e), arguing first that

the threat of private lawsuits satisfies the injury requirement for both standing and ripeness

purposes and, second, that the rules are fit for judicial review because they are final and will

expose Belmont Abbey to liability beginning in January 2013. As Belmont’s Motion simply

restates arguments already presented to the Court in its Opposition to Defendants’ Motion to

Dismiss – without offering previously unavailable evidence or showing manifest error or

injustice – the Court will deny the Motion.

I. Legal Standard

Rule 59(e) permits the filing of a motion to alter or amend a judgment when such motion

is filed within 28 days after the judgment’s entry. The court must apply a “stringent” standard

when evaluating Rule 59(e) motions. Ciralsky v. CIA,

(D.C. Cir. 2004). “A

1 Rule 59(e) motion ‘is discretionary’ and need not be granted unless the district court finds that

there is an ‘intervening change of controlling law, the availability of new evidence, or the need to

correct a clear error or prevent manifest injustice.’” Firestone v. Firestone,

(D.C. Cir. 1996) (quoting Nat’l Trust v. Dep’t of State,

(D.D.C. 1993));

see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2810.1 (2d ed. 1995) (“four basic

grounds” for Rule 59(e) motion are “manifest errors of law or fact,” “newly discovered or

previously unavailable evidence,” “manifest injustice,” and “intervening change in controlling

law”). Rule 59(e), moreover, “is not a vehicle to present a new legal theory that was available

prior to judgment.” Patton Boggs LLP v. Chevron Corp.,

(D.C. Cir. 2012).

II. Analysis

In its Motion for Reconsideration, Belmont Abbey asks this Court to revisit the same

arguments it just rejected. First, Plaintiff contends that even if the safe harbor will protect

Belmont from government enforcement of the challenged regulations, it faces imminent injury

from the threat of private-party suits to enforce the contraceptive-coverage Mandate. See Mot. at

3 (“Defendants’ exposure of Belmont Abbey College to additional ERISA lawsuits beginning in

January 2013 under the existing final rule is an imminent injury, sufficient for both standing and

ripeness purposes.”) (citing Chamber of Commerce of U.S. v. F.E.C.,

(D.C.

Cir. 1995)). Belmont raised precisely the same point in its earlier Opposition, as it openly

acknowledges in the current Motion. See Mot. at 3 (“As set forth in Plaintiff’s Opposition to the

Motion to Dismiss at 28-29, by virtue of enacting the Rule, the Defendants have exposed

Belmont Abbey to private lawsuits seeking to enforce compliance with the Mandate under

ERISA.”) (citing 29 U.S.C. §§ 1185d(a)(1), 1132(a)(1)(B)); see also Opp. at 29 (“[E]ven without

enforcement by Defendants, Belmont Abbey would still be subject to enforcement by its plan

2 participants and beneficiaries” under ERISA). The Supreme Court has made clear that a Rule

59(e) motion “‘may not be used to relitigate old matters.’” Exxon Shipping Co. v. Baker,

, 486 n.5 (2008) (quoting 11 Wright & Miller, Federal Prac. & Proc. Civ. § 2810.1). By

simply re-raising arguments set forth in its Opposition, that is exactly what Belmont seeks to do.

On this go-round, unlike in its Opposition, Belmont attaches a declaration and eight

EEOC Determination Letters to its Motion, indicating that it has been the subject of several EEO

complaints regarding its denial of contraceptive benefits. See Mot., Decl. & Exhs. 1-8. As a

preliminary matter, these complaints do not relate to the Affordable Care Act’s regulations at all;

on the contrary, they arise under a completely different statute – Title VII’s sex-discrimination

provisions. In addition, this evidence can hardly be considered newly available. See Firestone,

. Indeed, all the EEOC letters are dated July 30, 2009, and thus existed for nearly

three years before Belmont filed its Opposition to Defendants’ Motion to Dismiss.

The

Complaint’s reference to “employee complaints to the EEOC [and] an EEOC investigation”

regarding contraceptive coverage, moreover, reveals that Plaintiff was well aware before filing

its Opposition that evidence of this kind existed. See Compl., ¶ 32; Am. Compl., ¶ 31. Since

Rule 59(e) is not a vehicle for “‘present[ing] evidence that could have been raised prior to the

entry of judgment,’” Exxon Shipping,

n.5 (quoting 11 Wright & Miller, Federal

Prac. & Proc. Civ. § 2810.1), and Belmont has not offered any reason why it could not have

submitted these documents with its Opposition, the Court will not retread old ground.

Second, Belmont Abbey disputes the Court’s ruling that the regulations are not fit for

judicial review at this time. See Mem. Op. at 20 (challenged rule not sufficiently final to satisfy

fitness prong of ripeness inquiry). In essence, Belmont contends that the contraceptive-coverage

Mandate is a “final rule” that will “expos[e] Belmont to liability” starting on January 1, 2013 –

3 the effective date of its first plan year to begin on or after August 1, 2012. Mot. at 6, 7; 42

U.S.C. § 300gg-13(b);

; Am. Compl., ¶ 33.

Two arguments – both of which were raised earlier – are subsumed within this

contention. First, the “exposure” portion is a variation of the argument discussed above with

respect to private-party enforcement actions. Even though the safe harbor will protect Belmont

Abbey from government enforcement until January 2014, Plaintiff maintains that the regulations

are subject to judicial scrutiny now because it could face private suits as early as January of next

year. See

The Court already addressed this argument in its Opinion, finding that the

Departments’ position on contraceptive coverage by certain organizations with religious

objections remained in flux and that the interest in postponing review under these circumstances

outweighed any hardship Plaintiff might face on account of the delay. See Mem. Op. at 23-24.

Since Plaintiff has neither offered newly discovered evidence nor shown manifest error or an

intervening change in the law, the Court’s decision on this point will stand. See Firestone,

.

The second component of Belmont’s “fitness” argument is that the regulations that

require health plans to cover all FDA-approved contraceptive methods are final and thus fit for

judicial review now. See Mot. at 6-7. This argument was raised by Belmont in its previous

Opposition and subsequently considered and rejected by this Court. See Opp. at 21 (contending

that the Mandate, which was “‘adopted as final rule without change,’” is “truly final for purposes

of the ripeness doctrine”) (emphasis in original); Mem. Op. at 19-20 (holding that the

Departments’ position on the contraceptive-coverage Mandate remains tentative and is therefore

insufficiently final for judicial review). Since the Court has already addressed this contention in

depth in its Opinion and Belmont has failed to articulate a legitimate basis for reconsideration

4 here, the Court need not revisit the merits of the argument. See Exxon Shipping Co. v. Baker,

n.5 (Rule 59(e) Motion “‘may not be used to relitigate old matters.’”) (internal

citation omitted).

Even if the Court were to look once again at the arguments in Belmont’s Motion, such

inquiry would not change the outcome of the case, let alone show manifest error or injustice.

The threat of future litigation is inadequate to satisfy the imminent-injury component of the

standing doctrine. See City of Orville v. FERC,

(D.C. Cir. 1998)

(“‘Allegations of injury based on predictions regarding future legal proceedings are … too

speculative to invoke the jurisdiction of an Article III Court.’”) (quoting Platte River Whooping

Crane Critical Habitat Maintenance Trust v. FERC,

, 35 (D.C. Cir. 1992)) (alteration

in original); see also Salvation Army v. Dep’t of Cmty. Affairs of New Jersey,

(3d Cir. 1990) (“theoretical possibility of a suit against [plaintiff] by a program beneficiary”

insufficient to establish jurisdiction).

Belmont’s argument regarding the specter of private litigation, moreover, is less

persuasive today than it was at the time of the Court’s initial ruling. Since this Court granted

Defendants’ Motion to Dismiss in July, another judge in this District dismissed a similar case on

jurisdictional grounds. See Wheaton College v. Sebelius, et al., --- F. Supp. 2d ----,

(D.D.C. Aug. 24, 2012). In that case, Wheaton College, a Christian educational

institution, challenged the same contraceptive-coverage regulations at issue here. Judge Ellen

Huvelle found that Wheaton had failed to establish standing, holding among other things that its

exposure to private enforcement actions did not constitute “‘actual or imminent’” injury.

at

*5 (quoting Whitmore v. Arkansas,

(1990)).

5 Wheaton likewise agreed with this Court that the regulations are not ripe for judicial

review because the agency’s position on the contraceptive-coverage requirement remains

“tentative.” Id. at *8 (“Because they are in the process of being amended, see 77 Fed.Reg. at

16,501 (ANPRM), the preventive services regulations are by definition a tentative agency

position ‘in which the agency expressly reserves the possibility that its opinion might change.’”)

(citations omitted); accord Nebraska ex. rel. Bruning v. U.S. Dept. of Health and Human

Services, --- F. Supp. 2d ----,

(D. Neb., July 17, 2012) (Plaintiffs’

claims unripe due to “tentative nature of Departments’ position on religious accommodations to

the ACA’s contraceptive coverage requirements”). Belmont’s Motion does not provide any

indication that the Departments’ plans to amend the regulations have changed since this Court

dismissed its case. The Court, accordingly, finds no basis for revisiting its earlier ruling that the

regulations do not satisfy the finality prong of the ripeness analysis.

III. Conclusion

For the foregoing reasons, the Court ORDERS that Plaintiff’s Motion for

Reconsideration is DENIED.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: September 5, 2012

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