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2017.07.21 Dobson Motion To Dismiss
2017.07.21 Dobson Motion To Dismiss
No. 14-1233
Plaintiffs-Appellees,
v.
Defendants-Appellants.
OR TO DISMISS APPEAL
Appellate Case: 14-1233 Document: 01019844341 Date Filed: 07/21/2017 Page: 2
Table of Contents
INTRODUCTION...................................................................................... 1
BACKGROUND ........................................................................................ 2
ARGUMENT ............................................................................................. 6
CERTIFICATE OF SERVICE................................................................. 14
Appellate Case: 14-1233 Document: 01019844341 Date Filed: 07/21/2017 Page: 3
INTRODUCTION
More than three years ago, the district court granted Dr. Dobson
this appeal.
ministries would violate RFRA. But while the Departments now agree
this Court should summarily affirm the district courts order. In the
alternative, Dr. Dobson and Family Talk request that the Court dismiss
1
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the Departments appeal. Either way, Dr. Dobson and Family Talk
request that the Court end this appeal and return this matter to the
BACKGROUND
This is one of many cases pending before the Tenth Circuit that
and devices. The Plaintiffs-Appellees are Dr. James Dobson and Family
2
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would require Family Talk to issue a notice that would empower the
Dr. Dobson and Family Talk filed their lawsuit in December 2013
with Dr. Dobson and Family Talk and issued a preliminary injunction
2014).
Since then, the Departments have filed status reports on ten separate
May 15, and July 14 of 2017each asking the Court to delay ruling on
the merits.
In their latest status report, the DOJ states that the Departments
3
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arguments from the parties, the Supreme Court vacated this Courts
consolidated cases to see if the parties could resolve their dispute. Zubik
4
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2017, status report (IFR, attached as Ex. A). The draft was leaked to
priorities, and the principles set forth in [Executive Order 12,866], and
that decisions made by one agency do not conflict with the policies or
2 Press Release, U.S. Dept of Health & Human Services, Secretary Price Welcomes
Opportunity to Reexamine Contraception Mandate (May 7, 2017), available at
https://www.hhs.gov/about/news/2017/05/04/secretary-price-welcomes-opportunity-
to-reexamine-contraception-mandate.html.
3Dylan Scott and Sarah Kliff, Leaked regulation: Trump plans to roll back
Obamacare birth control mandate, Vox (May 31, 2017), https://www.vox.com/policy-
and-politics/2017/5/31/15716778/trump-birth-control-regulation.
5
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58 Fed. Reg. 51,735 (Sept. 30, 1993). As noted above, the President and
the HHS Secretary have made their priorities clear, and the
ARGUMENT
injunction. The district court issued its order because it found that the
wrong when they filed their appeal in 2014, but that is no longer the
4 See also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1143 (10th Cir. 2013)
(quoting Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418,
423 (2006)).
6
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mandate fails each element of the RFRA test. The Departments have,
United States, 17 F.3d 378, 280 (Fed. Cir. 1994). To summarily affirm, a
Hobby Lobby, 134 S. Ct. at 2775. The only remaining question under
7
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this burden.
does made a crucial difference. The Departments had told this Court
that the accommodation was an opt out and that under the
plans. Govt Br. at 20, 23, Little Sisters of the Poor v. Burwell, 794 F.3d
1151 (10th Cir. 2015) (No. 13-1540).5 This Court accepted the
[the Little Sisters of the Poor] will play no part in the provision of
But the next year, the Departments admitted before the Supreme
5Available at http://www.becketfund.org/wp-content/uploads/2014/10/LSP_DOJ-
Merits-Opp.pdf.
8
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38, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (No. 14-1418) (emphasis
added)).6
Because the Departments now agree with Dr. Dobson and Family
manner.
governmental interest. IFR at 31. The IFR explains at length how the
6See also Mark L. Rienzi, Fool Me Twice: Zubik v. Burwell and the Perils of
Judicial Faith in Government Claims, 2016 Cato. Sup. Ct. Rev. 123, 132 (2016).
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riddled with methodological flaws and does not show a direct causal
10
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telling the lower courts that they were already using the least
136 S. Ct. 1557 (2016) (No. 14-1418). See also Rienzi, Fool Me Twice, at
133.
The Departments also recognize in their IFR that there are dozens
to advance its policy goals without hijacking Family Talks health plan:
11
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IFR at 43 (citing Br. for Resps. at 65, Zubik v. Burwell, 136 S. Ct. 1557
The Departments have acknowledged the toll that more than five
28. Aware that not even a preliminary injunction has fully lifted this
CONCLUSION
The Departments now agree with Dr. Dobson and Family Talk on
all of the legal issues central to their appeal. They now acknowledge
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dots and now agree with Dr. Dobson and Family Talk that their
mandate is illegal under RFRA and that this litigation should end.
Justices attempts to drag this matter out further. The Court should lift
alternative, Dr. Dobson and Family Talk request that the Court dismiss
the Departments appeal. Either way, Dr. Dobson and Family Talk
request that the Court end this appeal and return this matter to the
13
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Respectfully submitted,
s/ L. Martin Nussbaum
L. Martin Nussbaum
Eric Kniffin
Ian Speir
LEWIS ROCA ROTHGERBER CHRISTIE
LLP
90 South Cascade Ave., Suite 1100
Colorado Springs, CO 80903-1662
(719) 386-3000
(719) 386-3070 (facsimile)
[email protected]
[email protected]
[email protected]
and
Gregory S. Baylor
ALLIANCE DEFENDING FREEDOM
440 First Street, N.W., Suite 600
Washington, DC 20001
(202) 393-8690
(202) 347-3622 (facsimile)
[email protected]
CERTIFICATE OF SERVICE
On July 21, 2017, I filed the foregoing with the Clerk of this Court
by using the appellate CM/ECF system. Opposing counsel will be served
by the appellate CM/ECF system.
s/ Eric N. Kniffin
Eric N. Kniffin
14
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CERTIFICATE OF COMPLIANCE
P. 27(d)(1)(E), 32(a)(5), (6), and 10th Cir. R. 32(a) because it has been
format is an exact copy of the written document filed with the Clerk,
and (3) the digital submissions have been scanned for viruses with the
Micro OfficeScan, Version 11.0.1454, last updated July 13, 2017, and,
s/ Eric N. Kniffin
Eric N. Kniffin
15