State of Washington v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 STATE OF WASHINGTON, CASE NO. C20-1105JLR 11 Plaintiff, ORDER ON SUPPLEMENTAL v. BRIEFING UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., 15 Defendants.

16 Before the court is Plaintiff State of Washington’s (“Washington”) motion for a preliminary injunction. (Mot. (Dkt. # 4).) The court notes that Washington and Defendant United States Department of Health and Human Services (“HHS”) failed to adequately address the following key issues in their briefing: // // 1 First, although Washington’s motion challenges three separate portions of HHS’s rule on nondiscrimination in healthcare (“the 2020 Rule”),1 the parties do not adequately address Washington’s standing to challenge each portion of the 2020 Rule. Washington challenges the following portions of the 2020 Rule: (1) HHS’s decision not to define the terms “sex” or “on the basis of sex” in the 2020 Rule; (2) the 2020 Rule’s incorporation of a religious exemption; and (3) the 2020 Rule’s construction of the scope of entities covered by the rule. (See generally Mot.) Washington did not directly address standing in its motion. (See generally id.) HHS raised broad standing objections in its opposition to Washington’s motion for a preliminary injunction but focused its arguments primarily on whether Washington has standing to challenges to HHS’s decision not to define “sex” or “on the basis of sex” in the 2020 Rule. (See Resp. (Dkt. # 56) at 5-11.) On reply, Washington offered two pages of argument in rebuttal to HHS’s standing arguments.

13 (See Reply (Dkt. # 59) at 2-4.)

14 Because “[s]tanding is not dispensed in gross,” Davis v. FEC, 554 U.S. 724, 734 (2008) (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)), Washington “must demonstrate standing for each claim [it] seeks to press” and for “each form of relief sought,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). The parties have not adequately addressed Washington’s standing to challenge each of the foregoing three parts of the 2020 Rule. Thus, the court concludes that supplemental briefing on this topic // See Nondiscrimination in Health & Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020).

1 is necessary to ensure that the court can resolve any standing issues with the benefit of fulsome arguments from both parties.

3 Second, the parties have not adequately addressed the applicability of Chevron deference to HHS’s interpretations of Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116. Chevron instructs that “[w]hen a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). “First, applying the ordinary tools of statutory construction, the court must determine ‘whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’” City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 296 (2013) (quoting Chevron, 467 U.S. at 842-43). But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843.

15 Both parties fail to clearly articulate how Chevron deference should apply to each of the three portions of the 2020 Rule that Washington challenges. Thus, the court concludes that supplemental briefing on this topic is necessary to ensure that the court can apply the appropriate level of deference to the 2020 Rule.

19 Third, the parties fail to adequately explain whether Washington will suffer irreparable harm if the court fails to enjoin HHS’s construction of the scope of covered entities in the 2020 Rule. “[P]laintiffs may not obtain a preliminary injunction unless they can show that irreparable harm is likely to result in the absence of the injunction.”

1 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The parties have made their positions clear on irreparable harm as applied to the 2020 Rule’s decision not to define “sex” or “on the basis of sex” and on the incorporation of a religious exemption in the 2020 Rule. (See Mot. at 20-23; Resp. at 22-23; Reply at 11-12.) However, neither party directly addresses whether irreparable harm will result in the absence of an injunction on HHS’s construction of the scope of covered entities in the 2020 Rule. Thus, the court concludes that supplemental briefing on this topic is necessary to ensure that the court can adequately address irreparable harm.

9 For the foregoing reasons, the court ORDERS both parties to submit supplemental briefing on the topics addressed above by 10:00 AM PDT on Monday, August 17, 2020.

11 Each party’s brief shall not exceed 12 pages in length and shall otherwise comport with Western District of Washington Local Civil Rule 7. See Local Rules W.D. Wash. LCR 7.

13 There shall be no responsive briefing unless the court orders otherwise.

14 Dated this 14th day of August, 2020.

A 17 JAMES L. ROBART United States District Judge