The Religious Sisters of Mercy Et Al v. Xavier Becerra Et Al Reply Brief

No.
21-1890
IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT
THE RELIGIOUS SISTERS OF MERCY, et al.,
Plaintiffs-Appellees,
v.
XAVIER BECERRA, et al.,
Defendants-Appellants.
On Appeal from the United States District Court

for the District of North Dakota
REPLY BRIEF
BRIAN M. BOYNTON
Acting Assistant Attorney General
MARLEIGH D. DOVER
CHARLES W. SCARBOROUGH
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division, Room 7261
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 353-9018
Appellate Case: 21-1890 Page: 1 Date Filed: 10/21/2021 Entry ID: 5089562
TABLE OF CONTENTS
Page
INTRODUCTION ............................................................................................................. 1
ARGUMENT ...................................................................................................................... 3
I. Plaintiffs Have Failed to Demonstrate Standing and Ripeness for Their

Challenge to HHS’s Future Enforcement of Section 1557................................... 3
A. Plaintiffs Lack Standing. ............................................................................... 3
B. Plaintiffs’ Claims Are Not Ripe.................................................................. 14
II. Plaintiffs Have Failed to Demonstrate Standing and Ripeness for Their
Challenge to EEOC’s Future Enforcement of Title VII. ................................... 18
A. Plaintiffs Lack Standing .............................................................................. 18
B. Plaintiffs’ Claims Are Not Ripe.................................................................. 24
III. The District Court Erred in Concluding that Plaintiffs Demonstrated

Imminent Irreparable Harm Sufficient to Justify Permanent Injunctive
Relief. ....................................................................................................................... 25
CONCLUSION................................................................................................................. 26
CERTIFICATIONS OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases: Page(s)
Alexis Bailly Vineyard, Inc. v. Harrington,

931 F.3d 774 (8th Cir. 2019) ........................................................................................... 9
American Fed’n of Gov’t Emps. v. O’Connor,

747 F.2d 748 (D.C. Cir. 1984) ....................................................................................... 16
Animal Legal Def. Fund v. Vaught,

8 F.4th 714 (8th Cir. 2021) ............................................................................................ 10
AT&T Co. v. EEOC,

270 F.3d 973 (D.C. Cir. 2001) ................................................................................... 8, 21
Balogh v. Lombardi,
816 F.3d 536 (8th Cir. 2016) ........................................................................................... 7
Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ............................................................................................ 1, 5, 24
California Bankers Ass’n v. Shultz,

416 U.S. 21 (1974) .......................................................................................................... 15
California v. Texas,
141 S. Ct. 2104 (2021) ...................................................................................................... 7
Cedar Park Assembly of God of Kirkland, Wash. v. Kreidler,

No. 20-35507, 2021 WL 3087873 (9th Cir. July 22, 2021) ......................................... 14
Christian Emps. All. v. Azar,

No. 3:16-CV-309, 2019 WL 2130142 (D.N.D. May 15, 2019) .................................. 13
Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................................................................... 4, 10
Colby v. J.C. Penney Co., Inc.,

811 F.2d 1119 (7th Cir. 1987) ......................................................................................... 4
ii
Colwell v. HHS,
558 F.3d 1112 (9th Cir. 2009) ....................................................................................... 17
Communist Party of the U.S. v. Subversive Activities Control Bd.,

367 U.S. 1 (1961) ............................................................................................................ 15
Conners v. Gusano’s Chi. Style Pizzeria,

779 F.3d 835 (8th Cir. 2015) ........................................................................................... 3
Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ........................................................................................................ 12
Digital Recognition Network, Inc. v. Hutchinson,

803 F.3d 952 (8th Cir. 2015) ........................................................................................... 7
EEOC v. Harris Funeral Homes,

884 F.3d 560 (6th Cir. 2018) ................................................................................... 20, 22
Feller v. Brock,
802 F.2d 722 (4th Cir. 1986) ........................................................................................... 4
Fletcher v. Alaska,
443 F. Supp. 3d 1024 (D. Alaska 2020) ........................................................................ 21
Franciscan All. v. Becerra,

414 F. Supp. 3d 928 (N.D. Tex. 2019) ........................................................................... 3
Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .............................................................................................................. 9
Kiser v. Reitz,
765 F.3d 601 (6th Cir. 2014) ........................................................................................... 9
Lujan v. Defenders. of Wildlife,

504 U.S. 555 (1992) .......................................................................................................... 4
Majors v. Abell,
317 F.3d 719 (7th Cir. 2003) ........................................................................................... 9
Miller v. Redwood Toxicology Lab’y, Inc.,

688 F.3d 928 (8th Cir. 2012) ................................................................................... 12, 14
iii
National Park Hosp. Ass’n v. Department of the Interior,
538 U.S. 803 (2003) .............................................................................................. 5, 15, 17
Newsome v. EEOC,
301 F.3d 227 (5th Cir. 2002) ......................................................................................... 19
Ohio Forestry Ass’n v. Sierra Club,

523 U.S. 726 (1998) ........................................................................................................ 25
Ouachita Watch League v. U.S. Forest Serv.,

858 F.3d 539 (8th Cir. 2017) ......................................................................................... 23
Park v. Forest Serv. of the U.S.,

205 F.3d 1034 (8th Cir. 2000) ......................................................................................... 5
Prasco, LLC v. Medicis Pharm. Corp.,

537 F.3d 1329 (Fed. Cir. 2008)........................................................................................ 5
Rodgers v. Bryant,
942 F.3d 451 (8th Cir. 2019) ........................................................................................... 9
Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ........................................................................................................ 25
Speech First, Inc. v. Fenves,

979 F.3d 319 (5th Cir. 2020) ......................................................................................... 11
St. Paul Area Chamber of Commerce v. Gaertner,

439 F.3d 481 (8th Cir. 2006) ......................................................................................... 11
Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ........................................................................................................ 23
Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ..........................................................................................4, 5, 6, 7, 9
Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) ........................................................................................... 9
Texas v. United States,

523 U.S. 296 (1998) ........................................................................................................ 15
iv
Toilet Goods Ass’n v. Gardner,
387 U.S. 158 (1967) ........................................................................................................ 15
Turtle Island Foods, SPC v. Thompson,

992 F.3d 694 (8th Cir. 2021) ......................................................................................... 10
281 Care Comm. v. Arenson,

638 F.3d 621 (8th Cir. 2011) ......................................................................................... 11
United Food & Commercial Workers Int’l Union v. IBP, Inc.,

857 F.2d 422 (8th Cir. 1988) ........................................................................................... 9
United Pub. Workers of Am. v. Mitchell,

330 U.S. 75 (1947) .......................................................................................................... 15
Walker v. Azar,
480 F. Supp. 3d 417 (E.D.N.Y. 2020) ............................................................................ 3
Whitman-Walker Clinic, Inc. v. HHS,

485 F. Supp. 3d 1 (D.D.C. 2020) .................................................................................... 4
Wieland v. HHS,
793 F.3d 949 (8th Cir. 2015) ......................................................................................... 14
Woodhull Freedom Found. v. United States,

948 F.3d 363 (D.C. Cir. 2020) ....................................................................................... 10
Zemel v. Rusk,
381 U.S. 1 (1965) ............................................................................................................ 15
Statutes:
20 U.S.C. § 1681(a) .............................................................................................................. 4
42 U.S.C. § 2000e-5(f)(1) ................................................................................................... 21
42 U.S.C. § 18116(a) ............................................................................................................ 4
Regulations:
45 C.F.R. § 80.8(c).............................................................................................................. 17
45 C.F.R. § 92.3(b) ....................................................................................................... 12, 13
45 C.F.R. § 92.3(c)........................................................................................................ 12, 13
Other Authorities:
CBA, Frequently Asked Questions, https://perma.cc/8H6G-TN2N
(last visited Oct. 20, 2021) ............................................................................................... 8
EEOC:
Compliance Manual on Religious Discrimination Directive 915.063, § 12-I-C (Jan.
15, 2021), https://go.usa.gov/x6bp4 ........................................................................... 19
81 Fed. Reg. 31,375 (May 18, 2016) ................................................................................. 20
85 Fed. Reg. 37,160 (June 19, 2020) ..................................................................... 12, 13, 14
86 Fed. Reg. 27,984 (May 10, 2021) ................................................................................... 5
vi
INTRODUCTION
The district court erred in entering permanent injunctive relief against the
government based on positions that the government has not actually adopted and in
the absence of an Article III case or controversy. The court’s permanent injunctions
and plaintiffs’ arguments are based on the premise that the Department of Health and
Human Services (HHS) and the Equal Employment Opportunity Commission
(EEOC) “have interpreted [and will enforce] Section 1557 and Title VII to mandate
that plaintiffs—all Catholic organizations—perform and pay for gender-transition
surgeries and related medical services.” Catholic Benefits Association (CBA) Br. 1; see
also Religious Sisters Br. 51 (same); A788 (same). But this premise is fundamentally
incorrect. At the time of the operative complaint, HHS and EEOC had not—and
still have not—taken positions on whether Section 1557 and Title VII require the
provision or coverage of gender-transition procedures by entities with religious
objections, or how the Religious Freedom Restoration Act (RFRA) interacts with
these general prohibitions on discrimination on the basis of sex. See Bostock v. Clayton
County, 140 S. Ct. 1731, 1754 (2020) (specifically reserving the question of how RFRA
and other “doctrines protecting religious liberty interact with Title VII” and
explaining that these “are questions for future cases”). Plaintiffs have thus failed to
satisfy the requirements of standing, ripeness, and irreparable harm, and the district
court’s judgment should be vacated.
First, plaintiffs have not established a concrete case or controversy with respect
to their challenge to HHS’s hypothetical future enforcement of Section 1557, and
their RFRA claims are not ripe. Plaintiffs have not demonstrated any imminent
injury, as they have not shown that HHS has ever brought or threatened an
enforcement action against plaintiffs or any objecting religious entity for declining to
provide or cover gender-transition services. Plaintiffs’ RFRA claims are not ripe for
review, as they cannot properly be evaluated in the abstract and instead require a
factual record in which HHS is actually requiring plaintiffs to do something specific.
Second, the CBA plaintiffs have not demonstrated standing and ripeness with
respect to their challenge to EEOC’s hypothetical future enforcement of Title VII.
The CBA plaintiffs offer no response to the government’s argument that their theory
of injury is based on a speculative chain of events. Additionally, EEOC has never
brought an enforcement action in court against any employer to challenge the
employer’s exclusion of gender-transition services in its health plan, let alone an
objecting religious employer, and the inapposite examples cited by the CBA plaintiffs
do not show otherwise. Nor do the CBA plaintiffs respond to the government’s
argument that their claim is not ripe because they have not identified any final agency
action for the court to review.
For similar reasons, plaintiffs have not made the necessary showing of
imminent irreparable harm sufficient to justify permanent injunctive relief.
ARGUMENT
I. Plaintiffs Have Failed to Demonstrate Standing and Ripeness for

Their Challenge to HHS’s Future Enforcement of Section 1557.
A. Plaintiffs Lack Standing.
Plaintiffs argue that they have demonstrated an injury-in-fact because their
conduct is “arguably proscribed” by the 2016 Rule, the 2020 Rule, and Section 1557.
Religious Sisters Br. 32; CBA Br. 28-29. But as explained in our opening brief (Gov’t
Br. 22-23), at the time of the operative complaint, the provisions of the 2016 Rule
prohibiting gender-identity discrimination had been vacated by a final judgment in
Franciscan Alliance v. Becerra, 414 F. Supp. 3d 928 (N.D. Tex. 2019), as well as formally
rescinded by HHS. Because courts “must assess standing in view only of the facts
that existed at the time” of the operative complaint, Conners v. Gusano’s Chi. Style
Pizzeria, 779 F.3d 835, 840 (8th Cir. 2015), plaintiffs have no plausible claim of injury
from the 2016 Rule. And despite plaintiffs’ contentions to the contrary (Religious
Sisters Br. 33; CBA Br. 28 n.7), the district courts in Whitman-Walker and Walker did
not have the authority to reverse the Franciscan Alliance district court’s vacatur. The
Walker court explicitly stated that it “agrees [with HHS] that it has no power to revive
a rule vacated by another district court.” Walker v. Azar, 480 F. Supp. 3d 417, 427
(E.D.N.Y. 2020). The Whitman-Walker court explained that the plaintiffs in that case
had “identif[ied] no authority that would permit either this Court or HHS to disregard
the final order of [the Franciscan Alliance] district court vacating part of a regulation,”
and thus the court was “powerless to revive it.” Whitman-Walker Clinic, Inc. v. HHS,
485 F. Supp. 3d 1, 26 (D.D.C. 2020). In any event, to the extent there is any
ambiguity in the Walker and Whitman-Walker orders, they should be read to avoid a
conflict with the Franciscan Alliance order for reasons of comity. Cf. Feller v. Brock, 802
F.2d 722, 727-28 (4th Cir. 1986) (“Prudence requires that whenever possible,
coordinate courts should avoid issuing conflicting orders.”); Colby v. J.C. Penney Co.,
Inc., 811 F.2d 1119, 1124 (7th Cir. 1987) (same).
Plaintiffs also miss the point in arguing that Section 1557 itself “arguably
proscribes” their conduct. Religious Sisters Br. 35-36, 41-42; CBA Br. 28-29.
Plaintiffs ignore Article III’s requirements that an injury must be “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (SBA List ) (quoting Lujan v.
Defenders. of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs’ allegations of harm rest
entirely on their speculation that HHS will one day interpret Section 1557 to require
them to provide or cover gender-transition services over their religious objections,
despite the protections of RFRA. But this speculative “allegation of future injury” is
not sufficient to prove standing where plaintiffs have not demonstrated that the
threatened injury is “‘certainly impending’” or that there is a “‘substantial risk’” that it
will occur. Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)).
Section 1557 prohibits discrimination “on the basis of sex.” 42 U.S.C.
§ 18116(a); 20 U.S.C. § 1681(a). The statute does not address how RFRA might affect
4
the application of Section 1557 to objecting religious entities, and HHS has not taken
a position on this issue. See Bostock v. Clayton County, 140 S. Ct. 1731, 1754 (2020)
(specifically reserving the question of how RFRA and other “doctrines protecting
religious liberties interact with Title VII” and explaining that these “are questions for
future cases”). And “mere uncertainty” over how an agency might interpret a statute
is insufficient to confer standing. See National Park Hosp. Ass’n v. Department of the
Interior, 538 U.S. 803, 811 (2003); Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329,
1338 (Fed. Cir. 2008) (plaintiff ’s “‘paralyzing uncertainty’” from fear that it might be
sued was not sufficient to confer standing).
Although HHS has now—after the filing of the operative complaint and after
the district court ruled—taken the position that sex discrimination under Section 1557
encompasses gender-identity discrimination, consistent with Bostock, HHS has not
staked out any position on whether and how this prohibition will be enforced in the
specific context of gender-transition services and religious providers who object under
RFRA. See 86 Fed. Reg. 27,984 (May 10, 2021) (explicitly stating that HHS “will
comply with [RFRA] and all other legal requirements”). Any injury to plaintiffs is
thus not “actual or imminent.” SBA List, 573 U.S. at 158; see also Park v. Forest Serv. of
the U.S., 205 F.3d 1034, 1037-38, 1040 (8th Cir. 2000) (explaining that a plaintiff
cannot “use evidence of what happened after the commencement of the suit” to
demonstrate standing).
Plaintiffs further argue that they face a credible threat of prosecution and thus
have demonstrated an injury-in-fact. Religious Sisters Br. 37-41; CBA Br. 29-32. But
plaintiffs have not pointed to any instances of HHS revoking federal funding from, or
bringing enforcement actions in court against, religious providers for declining to
provide or cover gender-transition procedures in the eleven years since Section 1557
was enacted. Cf. SBA List, 573 U.S. at 164 (plaintiffs demonstrated substantial threat
of future enforcement where enforcement agency had already found probable cause
that plaintiff had violated the challenged statute in the past). Plaintiffs attempt to rely
on HHS’s general statements that it will enforce Section 1557’s prohibition of sex
discrimination. Religious Sisters Br. 37-38, 40; CBA Br. 29. But the prospect that
HHS might bring an enforcement action against a provider who refuses to treat a
transgender patient’s broken bone based on the patient’s gender identity provides no
basis for concluding that HHS will bring an enforcement action against providers who
decline to provide gender-transition services due to their religious beliefs. The validity
of religious objections that could be asserted in those two scenarios would be quite
different, and the likelihood of government enforcement activity would likewise vary.
Plaintiffs declare that there is a “history of past enforcement,” (Religious Sisters
Br. 38), but the examples they cite do not support this assertion. That HHS
(1) received a complaint against a Catholic hospital for denying birth control to a cis-
gender woman, see SA679 n.1; (2) indicated that it would initiate an investigation—
during which a provider could assert a RFRA defense—against a provider for denying
6
gender-transition services, see Compl., Conforti v. St. Joseph’s Healthcare Sys., Inc.,
No. 2:17-cv-00050, 2017 WL 67114 (D.N.J. Jan. 5, 2017); and (3) investigated a state,
which cannot assert a RFRA defense, for declining to cover gender-transition
procedures in its Medicaid program, see SA679 n.2, does not show that HHS has
brought enforcement actions in court or initiated funding termination proceedings
against religious providers who decline to provide gender-transition services or that
plaintiffs have demonstrated an imminent injury sufficient to support standing. See
California v. Texas, 141 S. Ct. 2104, 2114 (2021) (“In the absence of contemporary
enforcement, we have said that a plaintiff claiming standing must show that the
likelihood of future enforcement is ‘substantial.’” (quoting SBA List, 573 U.S. at 164)).
Plaintiffs’ reliance on private lawsuits and administrative complaints alleging
violations of Section 1557 to support their standing to seek injunctive relief against
HHS is similarly misplaced. Religious Sisters Br. 38-39; CBA Br. 32-32. Private
lawsuits under Section 1557 have no bearing on whether defendant HHS will bring
enforcement actions against plaintiffs for declining to provide or cover gender-
transition services, and the injunction against HHS has no effect on private litigants.
See Balogh v. Lombardi, 816 F.3d 536, 544 (8th Cir. 2016) (plaintiff did not have
standing despite the threat of private lawsuits because the “injury is ‘fairly traceable’
only to the private civil litigants”); Digital Recognition Network, Inc. v. Hutchinson, 803
F.3d 952, 958 (8th Cir. 2015) (“Private litigants with rights to enforce the Act would
not be the subject of any relief in this action, and any judgment would not oblige
7
private litigants to refrain from proceeding under the Act.”). Moreover, the fact that
HHS receives complaints alleging violations of Section 1557 does not demonstrate
that HHS will bring enforcement actions against objecting religious entities. See
AT&T Co. v. EEOC, 270 F.3d 973, 976 (D.C. Cir. 2001) (explaining that even “law
enforcement agencies rarely have the ability, or for that matter the need, to bring a
case against each violator”).
Nor does defendants’ motion to modify the injunction in this case support
plaintiffs’ claim that they face a credible threat of prosecution. Religious Sisters Br.
41; CBA Br. 32. Defendants sought to clarify that they would not violate the
injunction by “taking any action under either Section 1557 or Title VII as to any
entities that Defendants are unaware are covered by the scope of the Order, given
that CBA has not identified its members.” SA717. That defendants may enforce
Section 1557 and Title VII against non-religious entities and cannot identify all of
CBA’s members—of which there are “over 1000” 1—without further information
does not demonstrate that either HHS or EEOC intends to bring an enforcement
action against plaintiffs or any other religious entity or that plaintiffs have suffered
imminent injury sufficient to support standing.
The cases cited by plaintiffs (Religious Sisters Br. 30-50; CBA Br. 33-35) only
confirm that this suit is not justiciable, as all of these cases are distinguishable. First,
1
CBA, Frequently Asked Questions,
https://perma.cc/8H6G-TN2N (last visited Oct. 20, 2021).
8
in several cases relied on by plaintiffs, there was a clear history of enforcement or
clear threats of enforcement. See SBA List, 573 U.S. at 164 (holding that plaintiff had
standing to challenge a false statement statute where there was “a history of past
enforcement” against plaintiff itself); Kiser v. Reitz, 765 F.3d 601, 608-09 (6th Cir.
2014) (holding that plaintiff had standing to challenge an advertising regulation where
plaintiff had been threatened with enforcement actions in the past); Telescope Media
Grp. v. Lucero, 936 F.3d 740, 750 (8th Cir. 2019) (finding a “credible threat of
enforcement” where State authorities had asserted a clear intent to enforce the statute
against similarly situated businesses and had brought an enforcement proceeding);
Holder v. Humanitarian Law Project, 561 U.S. 1, 15-16 (2010) (noting that the
government had charged about 150 persons under the challenged criminal statute).
See also Gov’t Br. 42-43 (distinguishing United Food & Commercial Workers International
Union v. IBP, Inc., 857 F.2d 422, 426-29 (8th Cir. 1988), and Rodgers v. Bryant, 942 F.3d
451, 454-55 (8th Cir. 2019)).
Second, plaintiffs err in relying on cases in which the plain text of the relevant
statutes clearly prohibited the specific conduct plaintiffs sought to engage in. See
Alexis Bailly Vineyard, Inc. v. Harrington, 931 F.3d 774, 778 (8th Cir. 2019) (explaining
that “when a course of action is within the plain text of a statute, a ‘credible threat of
prosecution’ exists”); Majors v. Abell, 317 F.3d 719, 721,721 (7th Cir. 2003) (statute
“on its face” applied to plaintiffs). In contrast with those cases, the convergence of
Section 1557 and RFRA—the relevant statutes in this case—in this context leaves
uncertainty regarding the scope of proscribed conduct.
Third, plaintiffs cite cases in which courts held at the motion to dismiss stage
that plaintiffs had standing because it was “at least arguable” that their conduct was
proscribed by the challenged statute. See Turtle Island Foods, SPC v. Thompson, 992 F.3d
694, 700 (8th Cir. 2021) (concluding that it was “at least ‘arguable’ at this stage of the
litigation” that “Plaintiffs’ intended commercial speech will be proscribed by the
Statute,” but noting that “the district court can address these questions again at a later
stage” (emphasis added)); Woodhull Freedom Found. v. United States, 948 F.3d 363, 372-73
(D.C. Cir. 2020) (holding that “[o]n this record” at the motion to dismiss stage, “there
is also ample reason to conclude that the threat of future enforcement against
[plaintiff] is substantial”). Because this case was resolved on summary judgment,
however, plaintiffs have a higher burden to demonstrate standing, and plaintiffs have
not met that burden. See Clapper, 568 U.S. at 411-12 (“The party invoking federal
jurisdiction bears the burden of establishing standing—and, at the summary judgment
stage, such a party . . . must set forth by affidavit or other evidence specific facts”
(quotation marks omitted)).
Finally, in several cases on which plaintiffs rely, the injury sufficient to support
standing was plaintiffs’ chilled First Amendment activity. See Animal Legal Def. Fund v.
Vaught, 8 F.4th 714, 720 (8th Cir. 2021) (“[T]he statute’s deterrent effect on the
investigations is sufficient to establish an injury”); Turtle Island, 992 F.3d at 699 (noting
10
that plaintiffs have self-censored their labels and marketing materials due to fear of
prosecution under the challenged section); 281 Care Comm. v. Arenson, 638 F.3d 621,
628 (8th Cir. 2011) (noting that plaintiffs’ speech was chilled by the challenged false
statement statute); St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 487 (8th
Cir. 2006) (noting plaintiffs’ allegation that they have been forced to “modify their
speech and behavior to comply” with the challenged statutes); Speech First, Inc. v.
Fenves, 979 F.3d 319, 330 (5th Cir. 2020) (highlighting evidence in the record that
plaintiff’s members’ speech was deterred by the challenged university policies
concerning speech on campus). In their appellate briefs, plaintiffs argue for the first
time that “HHS’s interpretation of Section 1557 ‘chills’ Plaintiffs’ religious exercise.”
Religious Sisters Br. 54; see also CBA Br. 36. However, plaintiffs did not raise this
argument before the district court, and thus it has been forfeited. Even if it were not
forfeited, plaintiffs do not offer any support for their assertion of chilled religious
exercise. Indeed, the record belies any claim of chill, as it conclusively demonstrates
that plaintiffs have not chosen to provide or cover gender-transition procedures
against their religious beliefs due to fear of enforcement actions under the challenged
statutes. See, e.g., A103 (declaration that Religious Sisters of Mercy has declined to
provide cross-hormone therapy services to a patient for gender-transition purposes);
A104 (declaration that a Religious Sisters of Mercy health plan excludes gender-
transition services); A139 (“Consistent with Catholic values and teaching, the Diocese
of Fargo’s health plan categorically excludes gender transition and abortion

11
procedures.”); CBA Br. 27 (“CBA members . . . refuse to perform and cover gender-
transition services, and they will continue to do so in the future, based on their
Catholic beliefs.”). 2 Accordingly, this belated and unsupported allegation of a chilling
effect on plaintiffs’ religious exercise provides no basis for standing.
Plaintiffs also rely on the contraceptive coverage cases (Religious Sisters Br. 44-
45), but none of the cases cited by the Religious Sisters plaintiffs addresses standing or
ripeness. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004)
(“Questions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.” (quotation marks omitted)). 3 And unlike here, the
government largely consented to injunctions in the cases on which plaintiffs rely,
2
CBA does allege that, as a result of the 2016 Rule, “some members” of CBA
received notices from their insurers that their health plans had begun covering gender-
transition services. A136, ¶ 4; A163, ¶¶ 136-140. But when CBA filed its amended
complaint, the 2016 Rule had been vacated and replaced by the 2020 Rule. Under the
2020 Rule, insurance providers are generally not covered entities, and the rule would
only apply to an insurance provider’s health programs or activities to the extent each
specific health program or activity is in receipt of federal funding. See 85 Fed. Reg.
37,160, 37,244-45 (June 19, 2020) (45 C.F.R. § 92.3(c)); see also id. at 37,244 (45 C.F.R.
§ 92.3(b)); infra pp. 13-14. The CBA plaintiffs do not allege that these insurers receive
federal funding. Thus, any injury to these CBA members is caused by the third-party
insurers’ own decisions and not by HHS. See Miller v. Redwood Toxicology Lab’y, Inc., 688
F.3d 928, 935 (8th Cir. 2012). As the district court properly recognized, actions by
insurers pressuring plaintiffs to cover gender-transition procedures “are not
attributable to HHS.” A780-781.
3
The contraceptive coverage cases cited by the CBA plaintiffs are addressed below,
infra p. 14.
12
further undercutting plaintiffs’ attempt to draw parallels between that litigation and
this case. See, e.g., Christian Emps. All. v. Azar, No. 3:16-CV-309, 2019 WL 2130142, at
*1 (D.N.D. May 15, 2019) (“The Defendants do not raise a substantive defense to the
motions [for permanent injunctions].”).
Finally, the CBA plaintiffs argue that plaintiff Diocese of Fargo (the Diocese)
has demonstrated an injury sufficient to support standing because, although it
maintains a self-insured health insurance plan excluding gender-transition coverage, its
third-party administrator has required the Diocese to indemnify the third-party
administrator and accept any liability for its decision to exclude transition services
from its plan. CBA Br. 40-45. The CBA plaintiffs allege that the third-party
administrator imposed this indemnification requirement due to its belief that it is a
covered entity under the 2016 Rule. The district court correctly rejected this alleged
injury as a basis for standing. A780-781. When the CBA plaintiffs filed their
amended complaint, the 2016 Rule had been vacated and replaced by the 2020 Rule,
which makes clear that third-party administrators are subject to Section 1557 “only to
the extent any such operation receives Federal financial assistance.” See 85 Fed. Reg.
at 37,244-45 (45 C.F.R. § 92.3(c)) (“an entity principally or otherwise engaged in the
business of providing health insurance shall not . . . be considered to be principally
engaged in the business of providing healthcare”); see also id. at 37,244 (45 C.F.R.
§ 92.3(b)) (“For any entity not principally engaged in the business of providing
healthcare, the requirements . . . shall apply to such entity’s operations only to the
13
extent any such operation receives Federal financial assistance”); id. at 37,173 (noting
that “[s]ome commentators expressed support for the provision that third-party
administrators of self-funded group health plans would no longer be subject to
Section 1557”). The CBA plaintiffs have not demonstrated, or even alleged, that the
Diocese’s third-party administrator receives federal funding, and thus the third-party
administrator would not be covered by Section 1557 under the 2020 Rule.
Accordingly, any injury to the Diocese as a result of the indemnity agreement is
caused by the third-party administrator’s misunderstanding of the state of the law and
not by HHS. See Miller, 688 F.3d at 935 (“When the injury alleged is the result of
actions by some third party, not the defendant, the plaintiff cannot satisfy the
causation element of the standing inquiry” (citation omitted)). The cases cited by the
CBA plaintiffs do not compel a different result. In Wieland v. HHS, 793 F.3d 949, 954
(8th Cir. 2015), and Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, No.
20-35507, 2021 WL 3087873, at *1 (9th Cir. July 22, 2021), the courts found standing
because the contraceptive coverage mandate required plaintiffs’ employers to eliminate
contraceptive-free coverage. In contrast, the 2020 Rule does not require third-party
administrators who do not receive federal funds to do anything, as they are not
covered entities. See 85 Fed. Reg. at 37,244-45, 37,173.
B. Plaintiffs’ Claims Are Not Ripe.
Plaintiffs’ arguments that their claims are ripe also fail. Plaintiffs assert that this
case presents a “purely legal” question of “whether the challenged interpretations of

14
federal law violate [RFRA].” Religious Sisters Br. 50-51. But as we have explained,
supra pp. 3-5; Gov’t Br. 22-25, HHS has not actually adopted the interpretations that
plaintiffs challenge, rendering any analysis purely hypothetical. Plaintiffs are thus
asking the court to broadly declare that a wide range of hypothetical future
enforcement actions by HHS all violate RFRA such that plaintiffs are entitled to an
anticipatory permanent injunction divorced from the specific context necessary to
evaluate a RFRA claim.
In any event, courts have long recognized that even a “purely legal” question is
unfit for adjudication where a concrete factual context would facilitate a court’s
“ability to deal with the legal issues presented.” National Park Hosp. Ass’n, 538 U.S. at
812 (quotation marks omitted); see, e.g., Texas v. United States, 523 U.S. 296, 301 (1998);
California Bankers Ass’n v. Shultz, 416 U.S. 21, 56 (1974); Toilet Goods Ass’n v. Gardner,
387 U.S. 158, 163 (1967); Zemel v. Rusk, 381 U.S. 1, 18-20 (1965); Communist Party of the
U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 78 (1961); United Pub. Workers of Am.
v. Mitchell, 330 U.S. 75, 89-90 (1947). Judicial review is thus properly deferred if “[t]he
operation of [a] statute” would be “better grasped when viewed in light of a particular
application.” Texas, 523 U.S. at 301.
The issues that plaintiffs raise are much better resolved in the context of a fully
developed factual record in which HHS is actually requiring plaintiffs to do something
specific. Gov’t Br. 31; see also American Fed’n of Gov’t Emps. v. O’Connor, 747 F.2d 748,
755-56 (D.C. Cir. 1984) (“Courts customarily deal in specific facts or circumstances
15
drawn with some precision and legal questions trimmed to fit those facts or
circumstances; they are not in the business of deciding the general without reference
to the specific.”). One example of a concrete dispute would be if HHS brought an
enforcement action against an objecting religious hospital for denying a hysterectomy
to a transgender man who alleged that the procedure was intended to treat severe
endometriosis, where the hospital alleged that the surgery was a gender-transition
procedure. Among other things, a court would have to determine, based on the
evidence in the record, whether the procedure was medically necessary, how the
hospital treats other patients with similar conditions, whether this was actually a
gender-transition procedure, whether performing the procedure would substantially
burden the hospital’s religious exercise, whether there is a compelling government
interest, and whether the government satisfied the least restrictive means requirement
of RFRA. This highly fact-specific inquiry underscores why plaintiffs’ RFRA claims
cannot be evaluated in the abstract.
Moreover, plaintiffs face little, if any, cognizable harm from deferring judicial
review. Although plaintiffs may prefer to press broad RFRA claims divorced from
any government enforcement activity compelling any specific action, and to obtain
broad injunctive relief as soon as possible, that preference does not constitute
hardship justifying premature judicial review. Plaintiffs do not contest (Religious
Sisters Br. 54) that “mere uncertainty” does not “constitute[] a hardship for purposes
of the ripeness analysis.” National Park Hosp. Ass’n, 538 U.S. at 811. Their only
16
response is that HHS’s actions also cause “practical harm” in the form of a chilling
effect on plaintiffs’ religious exercise and forcing plaintiffs to either change their
behavior or risk losing federal funding. Religious Sisters Br. 54. But as explained
above, supra pp. 11-12, the record refutes plaintiffs’ new argument that their religious
exercise has been chilled. And as explained in our opening brief (Gov’t Br. 34), HHS
has not evaluated whether Section 1557 requires the provision or coverage of gender-
transition procedures by objecting religious entities, and thus plaintiffs are not being
forced to do anything.
And even if HHS were to determine at some point in the future that Section
1557 requires plaintiffs to provide or cover these procedures, plaintiffs would still be
many steps removed from losing federal funding. See Colwell v. HHS, 558 F.3d 1112,
1128 (9th Cir. 2009). First, HHS would be required to attempt to achieve informal or
voluntary compliance. 45 C.F.R. § 80.8(c). Second, there must be a formal
adjudication and an administrative hearing. Id. Third, HHS must wait thirty days
after providing a full written report to Congressional committees. Id. Moreover,
“[j]udicial review of any funding termination is available in an Article III court.”
Colwell, 558 F.3d at 1128. Plaintiffs make no effort to explain why they would be
harmed by waiting to bring their RFRA claims in the context of a factual record in the
event that HHS were to ever take action against them.
17
II. Plaintiffs Have Failed to Demonstrate Standing and Ripeness for
Their Challenge to EEOC’s Future Enforcement of Title VII.
A. Plaintiffs Lack Standing
For many of the same reasons discussed above, the CBA plaintiffs have failed
to demonstrate standing to challenge EEOC’s hypothetical future enforcement of
Title VII. As explained in our opening brief (Gov’t Br. 35-40), the CBA plaintiffs’
speculation that EEOC might, at some unspecified time in the future, bring
enforcement actions under Title VII against the CBA plaintiffs for declining to cover
gender-transition services is insufficient to support standing.
The CBA plaintiffs do not respond to the government’s argument that their
theory of injury is based on an attenuated and entirely speculative chain of events. See
Gov’t Br. 36-38 (summarizing numerous things that would need to occur before
EEOC could bring enforcement action). The CBA plaintiffs also fail to grapple with
the fact that EEOC has not taken a position on how, if at all, Title VII should be
enforced against religious employers who object to providing insurance coverage for
gender-transition services. The CBA plaintiffs contend that “[a]ccording to EEOC,”
Title VII’s “prohibition on sex discrimination fully proscribes CBA’s members’
conduct,” and that EEOC has never “hinted that religious employers might be
exempt from any of [Title VII’s] requirements.” CBA Br. 37, 38. But these assertions
are wrong. EEOC has never taken a position on whether Title VII proscribes any
particular conduct by CBA’s members. Moreover, the CBA plaintiffs completely
18
ignore EEOC’s Compliance Manual on Religious Discrimination, Directive 915.063,
§ 12-I-C (Jan. 15, 2021) 4 (Gov’t Br. 39-40), which suggests that the interaction
between Title VII and RFRA is an open question and counsels EEOC investigators to
“seek the advice of the EEOC Legal Counsel” in situations involving RFRA. See id.
(noting that in addressing the interaction between Title and RFRA, courts have
“stressed the importance of a nuanced balancing of potential burdens on religious
expression, government interests at issue, and how narrowly tailored the challenged
government requirements are”); Cf. Newsome v. EEOC, 301 F.3d 227, 229-30 (5th Cir.
2002) (noting that after an employer responded to a charge of religious discrimination
“by providing documentation that it is a religious organization that is exempt from the
religious discrimination provisions of Title VII,” EEOC dismissed the charge of
discrimination).
The CBA plaintiffs are on no firmer ground in urging that “[i]n 2016, EEOC
pledged to cooperate with HHS to enforce a coverage mandate for gender-transition
services.” CBA Br. 30. As we have explained (Gov’t Br. 41-42), this argument rests
on a misreading of the 2016 Rule’s preamble. The preamble of the 2016 Rule—a rule
promulgated by HHS, not EEOC—merely stated that charges of discrimination
misfiled with HHS would be referred to EEOC if they were within EEOC’s
jurisdiction. See 81 Fed. Reg. 31,375, 31,432 (May 18, 2016). It did not indicate that
4
https://go.usa.gov/x6bp4.
19
EEOC would bring enforcement actions against any religious entities who decline to
cover gender-transition services. Indeed, EEOC has never brought an enforcement
action against any employer to challenge the employer’s exclusion of gender-transition
services in its health plan, let alone an objecting religious employer.
The CBA plaintiffs assert that “EEOC has repeatedly enforced [Title VII] to
require employers to pay for gender-transition services as part of employee health
coverage,” (CBA Br. 8-9, 11), but that assertion is factually incorrect and is not
supported by plaintiffs’ examples. First, the CBA plaintiffs rely on the consent decree
from EEOC v. Deluxe Financial Services, Inc., No. 0:15-cv-2646 (D. Minn.). CBA Br. 8.
But as we have explained, EEOC did not assert any claims concerning the exclusion
of gender-transition services from the employer’s insurance plan. Gov’t Br. 44.
Instead, the employee in that case intervened and asserted such claims. Id.
Second, the CBA plaintiffs cite EEOC’s amicus briefs in Robinson v. Dignity
Health, No. 4:16-cv-03035 (N.D. Cal. 2016), in which EEOC took the position that
non-religious employers’ health plans that categorically exclude gender-transition
procedures violate Title VII. CBA Br. 8. But EEOC taking this position in amicus
briefs does not demonstrate that EEOC has ever brought an enforcement action in court
to challenge an employer’s exclusion of gender-transition services. And importantly,
the employer in Robinson did not assert any religious defenses. Gov’t Br. 44 n.10
Third, the CBA plaintiffs rely on an article discussing EEOC’s investigation of
Wal-mart and determination that there was reasonable cause to believe that a violation
20
of Title VII occurred. CBA Br. 9. But an investigation and administrative reasonable-
cause determination inviting the employer to participate in voluntary conciliation do
not constitute an enforcement action, as EEOC did not sue Wal-mart in court to enforce
Title VII. As we have explained, not every charge for which EEOC finds reasonable
cause results in an enforcement action. Gov’t Br. 38 (citing 42 U.S.C. § 2000e-5(f)(1)
(if the employer declines to resolve the matter informally, EEOC “may” file an
enforcement action); AT&T Co., 270 F.3d at 976 (explaining that even though EEOC
had sued other similarly situated employers, “it does not follow that the agency will
use its limited resources to sue them all; law enforcement agencies rarely have the
ability, or for that matter the need, to bring a case against each violator”)).
Additionally, Wal-mart did not assert any religious defenses. Gov’t Br. 44 n.10.
Finally, the CBA plaintiffs cite Fletcher v. Alaska, 443 F. Supp. 3d 1024, 1028 (D.
Alaska 2020), in which a transgender state employee brought suit against Alaska
alleging a violation of Title VII. CBA Br. 9. But private lawsuits have no bearing on
whether defendant EEOC will bring enforcement actions. See supra pp. 7-8. The CBA
plaintiffs rely on the Fletcher court’s reference to EEOC’s reasonable-cause
determination. CBA Br. 9; see Fletcher, 443 F. Supp. 3d at 1028; see also id. at 1028 n.21,
n.22. But this reasonable-cause determination does not support the CBA plaintiffs’
assertion of a history of enforcement, as the government did not bring an
enforcement action in court against the state employer. And the state employer did
not, and could not, assert a RFRA defense.

21
The CBA plaintiffs attempt to bolster their mistaken claim that EEOC has
taken the position that Title VII requires objecting religious employers to cover
gender-transition services by invoking EEOC v. Harris Funeral Homes, 884 F.3d 560
(6th Cir. 2018), in which EEOC argued that the religious employer was not exempt
from Title VII’s prohibition of discrimination on the basis of sex or gender identity.
CBA Br. 38. But plaintiffs’ reliance on Harris Funeral Homes is misplaced, as that case
involved a different context—employment of a transgender employee—and did not
involve the unique issue of health plans covering gender-transition services. See 884
F.3d at 589-90 (holding that requiring the defendant employer to comply with Title
VII in employing a transgender employee did not substantially burden that employer’s
religious practice); see also id. at 589 (noting that the RFRA analysis might be different
where an employer is asked to “assist[] or facilitat[e]” an employee’s transition).
Moreover, EEOC’s position in Harris did not reflect an across-the-board
conclusion that Title VII overrides a RFRA defense in every case. To the contrary,
EEOC’s position was based on a fact-intensive analysis of the specific burden posed
to the employer’s religious exercise in that particular case and the unavailability of less
restrictive means to further the government’s compelling interest in that case. See
EEOC Br. 41-50, EEOC v. Harris Funeral Homes, No. 16-2424 (6th Cir.), Dkt. 22,
(noting that employer had not identified how continuing to employ the transgender
employee would interfere with any religious action or practice); id. at 55-61
(considering specific less-restrictive alternatives and arguing that they would not
22
further the government’s compelling interest); see also infra p. 24 (explaining that the
CBA plaintiffs’ RFRA claim is not ripe because there is no factual record on which a
court could properly conduct the fact-intensive analysis and nuanced balancing of
interests that is required in cases involving the interaction between Title VII and
RFRA).
The CBA plaintiffs also argue that defendants’ motion to modify the injunction
in this case supports plaintiffs’ claim that they face a credible threat of prosecution
from EEOC. CBA Br. 32. But as explained above, see supra p. 8, that EEOC may
enforce Title VII against non-religious entities and cannot identify all of CBA’s
members without further information does not demonstrate that EEOC intends to
bring an enforcement action against plaintiffs or any other religious entity.
Finally, as explained in our opening brief (Gov’t Br. 29-30), CBA has not
demonstrated associational standing to sue on behalf of its unnamed members that
receive federal funding. See also Gov’t Br. 40. These unnamed members would not
have standing to sue in their own right for the reasons discussed above and in our
opening brief, and the CBA plaintiffs failed to satisfy the Summers naming
requirement. See Summers v. Earth Island Inst., 555 U.S. 488, 498-99 (2009); see also
Ouachita Watch League v. U.S. Forest Serv., 858 F.3d 539, 543 (8th Cir. 2017). The CBA
plaintiffs’ only response is that “the CBA made specific allegations about its members,
including the other CBA Plaintiffs, and articulated the specific factual bases of their
standing to challenge both agencies’ interpretations of these statutes.” CBA Br. 26

23
n.6. But the CBA plaintiffs fail to cite anything in the record indicating that they have
identified any specific members who have been injured.
B. Plaintiffs’ Claims Are Not Ripe
For many of the same reasons explained above and in our opening brief (Gov’t
Br. 45-49), the CBA plaintiffs’ RFRA claim against EEOC also fails because it is not
ripe. The CBA plaintiffs wholly fail to respond to the government’s argument that
the CBA plaintiffs have not identified any final agency action for the court to review.
Gov’t Br. 45-46. Additionally, the CBA plaintiffs’ RFRA claim is not fit for judicial
review because EEOC has not asked any employer to take any specific action, so
there is no factual record on which a court could properly evaluate what interest the
government might have in compelling such actions, what burden such actions might
impose on plaintiffs’ religious exercise, and whether less restrictive means of achieving
the government’s interest are available. Gov’t Br. 46-47; see also Bostock, 140 S. Ct. at
1754 (noting that RFRA “might supersede Title VII’s commands in appropriate cases”
(emphasis added)). Delaying judicial review will not constitute a hardship on the CBA
plaintiffs because the CBA plaintiffs have not demonstrated any harm. Gov’t Br. 47-
48. Although the CBA plaintiffs may prefer to press broad RFRA claims divorced
from any government enforcement activity compelling any specific action, and to
obtain broad injunctive relief as soon as possible, that preference does not constitute
hardship justifying premature judicial review. See supra pp. 16-17.
24
The CBA plaintiffs argue that an agency cannot “promulgate RFRA-burdening
interpretations of statutes, decline to create (or keep mum about) any exemption for
religious entities, but then avoid judicial review on the ground that the agency” has
not yet evaluated how the statutes might apply to religious entities. CBA Br. 39. But
that gets matters exactly backwards. Plaintiffs cannot initiate a preemptive suit to
obtain a broad injunction precluding any agency enforcement activity before the
agency has even finished evaluating the issues and formulating a position. See Ohio
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733, 735 (1998).
III. The District Court Erred in Concluding that Plaintiffs

Demonstrated Imminent Irreparable Harm Sufficient to Justify
Permanent Injunctive Relief.
For many of the same reasons discussed above and in our opening brief (Gov’t
Br. 50-51), plaintiffs have not demonstrated imminent irreparable harm sufficient to
justify permanent injunctive relief against HHS and EEOC. Plaintiffs argue that the
“loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Religious Sisters Br. 56 (quoting Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)); see also CBA Br. 40. But
as explained above, supra pp. 11-12, the record refutes plaintiffs’ new argument that
their religious exercise has been chilled. And plaintiffs’ speculation about
enforcement positions that HHS and EEOC may take at some unspecified time in the
future is insufficient to demonstrate irreparable harm.
25
CONCLUSION
For the foregoing reasons, the judgment of the district court should be vacated
and remanded with instructions to dismiss for lack of jurisdiction.
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
MARLEIGH D. DOVER
CHARLES W. SCARBOROUGH
s/ Ashley A. Cheung
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division, Room 7261
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-9018
[email protected]
OCTOBER 2021
26
CERTIFICATIONS OF COMPLIANCE
I hereby certify this brief complies with the requirements of Federal Rules of
Appellate Procedure 32(a)(5) and (6) because it has been prepared in 14-point
Garamond, a proportionally spaced font, and that this brief complies with the type-
volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B), because it
contains 6,500 words, excluding the parts of the brief exempted under Rule
32(a)(7)(B)(iii), according to the count of Microsoft Word.
I certify, in compliance with Eighth Circuit Local Rule 28A(h)(2), that this brief has
been scanned for viruses and is virus free.
s/ Ashley A. Cheung
Ashley A. Cheung
CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2021, I electronically filed the foregoing brief
with the Clerk of this Court by using the appellate CM/ECF system. The participants
in the case are registered CM/ECF users and service will be accomplished by the
appellate CM/ECF system.
s/ Ashley A. Cheung
Ashley A. Cheung

The Religious Sisters of Mercy Et Al v. Xavier Becerra Et Al Reply Brief

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The Religious Sisters of Mercy Et Al v. Xavier Becerra Et Al Reply Brief

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No.

IN THE UNITED STATES COURT OF APPEALS

THE RELIGIOUS SISTERS OF MERCY, et al.,

XAVIER BECERRA, et al.,

On Appeal from the United States District Court

I. Plaintiffs Have Failed to Demonstrate Standing and Ripeness for Their

A. Plaintiffs Lack Standing. ............................................................................... 3

B. Plaintiffs’ Claims Are Not Ripe.................................................................. 14

A. Plaintiffs Lack Standing .............................................................................. 18

B. Plaintiffs’ Claims Are Not Ripe.................................................................. 24

III. The District Court Erred in Concluding that Plaintiffs Demonstrated

Alexis Bailly Vineyard, Inc. v. Harrington,

American Fed’n of Gov’t Emps. v. O’Connor,

Animal Legal Def. Fund v. Vaught,

AT&T Co. v. EEOC,

Bostock v. Clayton County,

California Bankers Ass’n v. Shultz,

Cedar Park Assembly of God of Kirkland, Wash. v. Kreidler,

Christian Emps. All. v. Azar,

Clapper v. Amnesty Int’l USA,

Colby v. J.C. Penney Co., Inc.,

Communist Party of the U.S. v. Subversive Activities Control Bd.,

Conners v. Gusano’s Chi. Style Pizzeria,

Cooper Indus., Inc. v. Aviall Servs., Inc.,

Digital Recognition Network, Inc. v. Hutchinson,

EEOC v. Harris Funeral Homes,

Franciscan All. v. Becerra,

Holder v. Humanitarian Law Project,

Lujan v. Defenders. of Wildlife,

Miller v. Redwood Toxicology Lab’y, Inc.,

Ohio Forestry Ass’n v. Sierra Club,

Ouachita Watch League v. U.S. Forest Serv.,

Park v. Forest Serv. of the U.S.,

Prasco, LLC v. Medicis Pharm. Corp.,

Roman Catholic Diocese of Brooklyn v. Cuomo,

Speech First, Inc. v. Fenves,

St. Paul Area Chamber of Commerce v. Gaertner,

Summers v. Earth Island Inst.,

Susan B. Anthony List v. Driehaus,

Telescope Media Grp. v. Lucero,

Texas v. United States,

Turtle Island Foods, SPC v. Thompson,

281 Care Comm. v. Arenson,

United Food & Commercial Workers Int’l Union v. IBP, Inc.,

United Pub. Workers of Am. v. Mitchell,

Whitman-Walker Clinic, Inc. v. HHS,

Woodhull Freedom Found. v. United States,

20 U.S.C. § 1681(a) .............................................................................................................. 4

42 U.S.C. § 2000e-5(f)(1) ................................................................................................... 21

42 U.S.C. § 18116(a) ............................................................................................................ 4

45 C.F.R. § 92.3(b) ....................................................................................................... 12, 13

45 C.F.R. § 92.3(c)........................................................................................................ 12, 13

81 Fed. Reg. 31,375 (May 18, 2016) ................................................................................. 20

85 Fed. Reg. 37,160 (June 19, 2020) ..................................................................... 12, 13, 14

86 Fed. Reg. 27,984 (May 10, 2021) ................................................................................... 5

Human Services (HHS) and the Equal Employment Opportunity Commission

that plaintiffs—all Catholic organizations—perform and pay for gender-transition

provision or coverage of gender-transition procedures by entities with religious

court’s judgment should be vacated.

to their challenge to HHS’s hypothetical future enforcement of Section 1557, and

factual record in which HHS is actually requiring plaintiffs to do something specific.

respect to their challenge to EEOC’s hypothetical future enforcement of Title VII.