August 20, 2019

Tenth Circuit: Final Decisions of Tenth Circuit and Supreme Court Must Be Respected

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah on Tuesday, June 16, 2015.

Nearly 40 years ago, the Ute Tribe in Utah filed suit against the state and several local governments, alleging the governing bodies were unlawfully trying to displace tribal authority on tribal lands. The Tenth Circuit issued a ruling in 1985 (Ute III) agreeing with the tribe and rejecting Utah’s claim that Congressional action had diminished three constituent parts of the Ute tribal land. The U.S. Supreme Court denied certiorari, but instead of following the Tenth Circuit’s mandate, state authorities prosecuted tribal members in state court for conduct occurring within tribal boundaries. One of these cases made it to the U.S. Supreme Court, and the Court agreed with the Utah Supreme Court that the tribal boundaries were diminished. Because of the conflicting rulings, the Tenth Circuit recalled and modified Ute III‘s mandate in a ruling the parties called Ute V.

Despite these final rulings, Utah continued to defy the mandates and prosecute tribal members in state court for actions occurring within tribal boundaries. The tribe filed suit against Utah and several local governments in federal court, seeking a permanent injunction prohibiting the state from prosecuting tribal members in state court for conduct occurring within tribal boundaries and prohibiting the state from relitigating matters settled by Ute III and Ute V. The tribe specifically asked for an injunction to halt the prosecution of one tribal member, Lesa Jenkins, for alleged traffic infractions occurring within tribal lands. The state and Uintah and Duchesne counties counterclaimed, arguing the tribe had infringed upon their sovereignty. Three interlocutory orders were before the Tenth Circuit as a result of the latest litigation: (1) the tribe’s request for a preliminary injunction, (2) the tribe’s assertion of immunity from the government’s counterclaims, and (3) Uintah County’s claim of immunity from the tribe’s suit.

The Tenth Circuit first addressed the tribe’s request for a preliminary injunction. The district court denied the request in one sentence, holding the tribe failed to demonstrate that it would suffer irreparable harm without an injunction. The Tenth Circuit disagreed, stating that it has repeatedly held that an invasion of tribal sovereignty can constitute irreparable injury, and the invasion of sovereignty in the instant case was much greater than that in the previous precedent. The Tenth Circuit suspected the “tortured litigation history” behind the prosecution of Ms. Jenkins was a repeated campaign to undo its previous mandates in Ute III and Ute V. The state brushed off the tribe’s concerns as “speculative,” and Wasatch County argued the tribe could not exercise any authority over any lands in Utah because it was once a separate, independent nation called the “State of Deseret” with its own constitution that didn’t recognize tribal authority. The Tenth Circuit found this argument unavailing. The Tenth Circuit found no doubt that the government’s conduct significantly interfered with tribal self-government sufficient to constitute irreparable injury to the tribe, opining that it seemed to be the government’s purpose. The merits of the case also supported the Tenth Circuit’s conclusion that a preliminary injunction was mandated. The Tenth Circuit found little support in the state’s argument that it would be required to engage in racial profiling to determine whether a driver stopped for a traffic infraction was a member of a tribe, noting the police could simply ask the driver whether the driver is a member of the tribe, and contact tribal authorities instead of writing the ticket. The Tenth Circuit compared the potential harms that could arise with and without the injunction, finding no question that the tribe would suffer more than the state. The Tenth Circuit remanded to the district court with instructions to issue the preliminary injunction against the defendants.

The Tenth Circuit next dismissed the counterclaims against the tribe, finding it had long been settled that Indian tribes are only subject to suit where authorized by Congress and these counterclaims were not authorized. The states and counties argued the tribes waived their immunity in three agreements signed after Ute V, but the Tenth Circuit found no support for this argument, because the agreements had expired and specifically reserved tribal immunity. The Tenth Circuit found the tribe was entitled to dismissal of the counterclaims.

Finally, the Tenth Circuit turned to Uintah County’s argument it was entitled to immunity, finding it foreboding that no other governmental entity joined its claims. Noting that the Supreme Court has repeatedly denied immunity to counties, the Tenth Circuit quickly rejected Uintah County’s assertion that its county attorneys were the main focus of the suit and they were subject to immunity as “arms of the state.” After determining that the attorneys had insufficient connections to qualify as arms of the state, the Tenth Circuit dismissed these arguments.

Issuing a reprimand to the state and counties for disobeying its previous mandates, the Tenth Circuit noted “A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already.” The district court’s decision denying the tribal request for a preliminary injunction was reversed and the court was directed to issue the injunction. The decision denying tribal immunity was also reversed and the district court was instructed to dismiss the counterclaims against the tribe. The district court’s decision denying immunity to Uintah County was affirmed. The Tenth Circuit warned that sanctions would issue for further litigation about these settled issues.

Tenth Circuit: Utilizing Religious Accommodation Is Not Substantial Burden on Religious Exercise

The Tenth Circuit Court of Appeals issued its opinions in Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell on Tuesday, July 14, 2015.

Plaintiffs in the three companion cases are non-profit religious organizations who contend that the religious exemption to the Affordable Care Act’s birth control mandate substantially burdens their free exercise of religion. The Affordable Care Act requires employer-sponsored health plans to meet minimum coverage requirements, including covering preventive health care services. Coverage of women’s preventive health care services must include all FDA approved contraceptives, sterilization procedures, and patient education and counseling. An exemption for nonprofit religious employers was created in the Act, and a religious employer can receive the exemption if it (1) has religious objections to providing some or all of the contraceptive services mandated by the Act, (2) is organized and operates as a non-profit entity, (3) holds itself out as a religious organization, and (4) self-certifies that it satisfies the first three criteria. In order to utilize the exemption, organizations must submit a form to their health insurance issuer or third-party administrator notifying the insurer that the organization is exempt from the contraception mandate. This triggers a requirement that the insurer fulfill the contraception mandate without sharing costs with the exempt organization.

The religious organizations objected to the exemption procedures, contending that by sending the form to their insurers, they were complicit in the provision of contraception because sending the form triggers the insurers’ responsibility to provide contraception coverage. Plaintiffs argued that by sending the form and triggering the insurers’ coverage requirement, their right to free exercise of religion was substantially burdened. The district courts reached different conclusions in each of the three cases before the Tenth Circuit, denying a preliminary injunction in the Little Sisters case but granting it in the Southern Nazarene and Reaching Souls cases.

In the Little Sisters case, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the businesses’ religious exercise. The court’s analysis of the preliminary injunction factors “began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied” and found it was the court’s duty to determine how the regulations operate as a matter of law. The district court concluded the accommodation scheme does not require Little Sisters to provide or participate in the provision of contraceptive coverage.

In Southern Nazarene, the district court analyzed the plaintiffs’ likelihood of success on the merits and determined the form imposed a substantial burden on plaintiffs’ sincere religious exercise. The court determined the government failed to show a compelling governmental interest or showed its approach was the least restrictive approach, and granted the preliminary injunction.

In Reaching Souls, the district court also analyzed the plaintiffs’ likelihood of success on the merits. The court rejected the government’s argument as a “variation of a proposition rejected” in Hobby Lobby, and emphasized that regardless of whether signing the form actually triggered the provision of contraceptive services, the plaintiffs believed signing the form signaled their tacit approval or complicity. The district court granted a preliminary injunction.

Before reaching the merits of the appeals, the Tenth Circuit highlighted the unusual nature of the plaintiffs’ claims. The Tenth Circuit distinguished the Hobby Lobby case and other RFRA cases, since those plaintiffs could not avail themselves of the religious employer exemption. The Circuit quoted its closest analog case, United States v. Friday, noting “‘Law accommodates religion; it cannot wholly exempt religion from the reaches of the law.'”

The Tenth Circuit admonished the religious organizations, noting that whether the form constitutes a substantial burden is a legal question to be left to the courts, not a subjective matter for an organization to decide. Finding the accommodation permissible under the RFRA, the Tenth Circuit noted that the plaintiffs do not “trigger” contraceptive coverage by opting out of direct provision because federal law, not the act of plan participants, mandates contraceptive coverage. Rather than becoming complicit in the contraceptive scheme, opting out relieves the plaintiffs of all complicity. The Tenth Circuit characterized the form completion as a de minimus administrative task. Although the plaintiffs and the dissent argue that by opting out the plaintiffs cause the legal responsibility for providing coverage to shift to the insurer, the Tenth Circuit found that shifting the responsibility to the insurer relieved the organization of its obligation to provide coverage. The Circuit noted that such arrangements are common and among permissible methods of religious accommodation in a pluralist society.

Analyzing the RFRA, the Tenth Circuit again stressed that “whether a law substantially burdens religious exercise . . . is a matter for courts—not plaintiffs—to decide.” Courts need not question whether a religious petitioner correctly perceived the commands of his or her faith, but rather whether a challenged law or policy substantially burdens religious exercise. The Tenth Circuit noted “accepting any burden alleged by Plaintiffs as ‘substantial’ would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.” The Tenth Circuit found that accommodations such as the exemption at issue may eliminate burdens on religious exercise or reduce them to de minimus administrative tasks.

The Tenth Circuit rejected the plaintiffs’ argument that delivering the form “triggers” contraceptive coverage, emphasizing that federal law, not the form or delivery, mandates coverage. It found that the arrangement shifting responsibility of coverage “is typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds.” The Tenth Circuit instructed that a religious accommodation reconciles rule of liberty with rule of law, so that when a religious institution is faced with a conflict between following the law or following religious belief, the religious objector can seek exception from the law without having to break it. The Tenth Circuit noted that shifting the burden from an objecting party to a non-objecting one is the point of accommodation.

The Tenth Circuit next turned to the plaintiffs’ arguments that the act of opting out makes them feel complicit in the overall contraceptive coverage scheme. The Tenth Circuit was not persuaded. Instead, it found that the exemption serves to ensure that plaintiffs are not complicit in the delivery of contraceptive services: “Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it.” Since the only involvement of plaintiffs in the scheme of contraceptive coverage is the act of opting out, the Tenth Circuit found this did not impose a substantial burden, noting that all opt-out schemes require some affirmative action and having to file paperwork does not alone substantially burden religious exercise. The Tenth Circuit that plaintiffs’ religious objections cannot hamstring government efforts to ensure plan participants receive the coverage to which they are legally entitled.

Turning next to the plaintiffs’ First Amendment arguments, the Tenth Circuit found no merit in plaintiffs’ contention that the exemption requirement simultaneously compels and silences their speech in violation of the First Amendment. The Tenth Circuit applied the same analysis to the First Amendment claims as it applied to the RFRA claims. The Tenth Circuit found the ACA neutral and generally applicable, and determined the exemption “was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice.”

The Tenth Circuit affirmed the district court’s denial of a preliminary injunction in Little Sisters and reversed the district court’s grant of a preliminary injunction in Southern Nazarene and Reaching Souls. Judge Baldock dissented.

Tenth Circuit: Interlocutory Appeal of Preliminary Injunction Related to 2014 Elections Moot

The Tenth Circuit Court of Appeals issued its opinion in Fleming v. Gutierrez on Tuesday, May 5, 2015.

The 2012 general election in Sandoval County, New Mexico, was fraught with problems. Some voters waited more than five hours to vote, and others left before casting their ballots. Following the disastrous election, the Sandoval County Board of Commissioners passed two resolutions condemning the handling of the 2012 election and designating more voting centers for the 2014 election.

Several voters filed suit in federal district court after the 2012 elections, alleging equal protection and due process § 1983 violations and a violation of New Mexico’s constitutional free-and-open-elections clause. In September 2014, the district court entered a preliminary injunction against the county that essentially made any discretionary aspects of the Board’s resolutions non-discretionary. The injunction explicitly stated it was to apply through the November 2014 elections, at which point the court would reevaluate the case. The county filed an interlocutory review, seeking vacation of the injunction on the grounds that the voters lacked standing and were unlikely to prevail on the merits, and also seeking expedited review. The Tenth Circuit declined expedited review and the November 2014 election occurred under the bounds of the preliminary injunction.

The voters requested the Tenth Circuit to dismiss the appeal as moot. The county argued the election did not moot the injunction because it falls within the exception to the mootness doctrine for issues capable of repetition yet evading review, and because the injunction remains relevant to the issue of the prevailing party’s attorney fees. The Tenth Circuit addressed each contention in turn.

The Tenth Circuit held that the November 2014 election mooted the interlocutory appeal, finding any decision about the district court’s order would have no present day effect on the parties because the election and the effective time for the injunction had passed. The Circuit further found the exception to the mootness doctrine for issues capable of repetition yet evading review did not apply to the preliminary injunction, though it could apply to the case as a whole. Because the complaint, in which the voters sought permanent injunctive relief as to all future elections, was still pending in the district court, the issues were capable of review.

As to the attorney fee award, the Tenth Circuit found that the voters were the prevailing party as to the preliminary injunction but may not prevail on the suit in district court. Because no fee request had been filed, the Tenth Circuit lacked jurisdiction to address the issue.

The Tenth Circuit granted the voters’ motion to dismiss the appeal as moot and dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Company Entitled to Sell Trademark Rights Post-Termination Continued to Own Rights Until Completion of Sale

The Tenth Circuit Court of Appeals issued its opinion in Derma Pen LLC v. 4EverYoung Limited on Tuesday, December 9, 2014.

Derma Pen, LLC and 4EverYoung Ltd. entered into a sales distribution agreement for a micro-needling device: Derma Pen would sell the device in the United States and 4EverYoung would sell it in the rest of the world. Their contract provided that upon termination, Derma Pen would offer to sell its rights to 4EverYoung. Derma Pen eventually terminated the agreement and 4EverYoung attempted to purchase Derma Pen’s trademark rights, but the parties reached an impasse and no sale occurred. Despite its lack of trademark rights, 4EverYoung started using Derma Pen’s trademark to sell the device in the United States. Derma Pen sued 4EverYoung and associated entities on over 15 claims, including trademark infringement and unfair competition under the Lanham Act. Derma Pen also moved for a preliminary injunction to prevent 4EverYoung from using the trademark in the United States. The district court denied the motion, finding that Derma Pen was unlikely to succeed on the merits, and Derma Pen appealed.

The Tenth Circuit reversed. Upon review of the existing record, the Tenth Circuit found that Derma Pen likely still owned the U.S. trademark rights until they were sold, and no sale had taken place. 4EverYoung argued that the agreement’s termination dissolved Derma Pen’s ownership rights, but the Tenth Circuit disagreed. Because the contract contemplated Derma Pen’s ability to sell its ownership rights post-termination, the Tenth Circuit found that Derma Pen likely still owned the trademark rights, and would be likely to succeed on the merits on this issue.

The district court’s denial of Derma Pen’s injunction was reversed, and the case was remanded for further proceedings.

Tenth Circuit: Preliminary Injunction Enjoining Implementation of Legislation That Restricted Federal Funding to Two Kansas Planned Parenthood Facilities Vacated

The Tenth Circuit Court of Appeals published its opinion in Planned Parenthood of Kansas and Mid-Missouri v. Moser on Tuesday, March 25, 2014.

The federal government subsidizes the cost of family-planning services for low-income individuals through Title X of the Public Health Service Act, codified at 42 U.S.C. §§ 300–300a-6. Although Title X  authorizes direct federal grants to service providers, most Title X funds flow initially to state and local  governmental agencies. Nonprofit organizations function as intermediaries that distribute the funds to subgrantees who administer the programs. Kansas is one such state.

If a grantee or subgrantee materially fails to comply with any term of an award, the awarding agency may temporarily withhold payments, disallow funding to cover the cost of the noncomplying activities, terminate the award, withhold further awards, or pursue other legally available remedies.

In May 2011, Kansas Governor Sam Brownback signed into law appropriations bill § 107(l) restricting the classes of entities eligible for Title X subgrants. It limited the recipients to public entities, hospitals, and federally qualified health centers (FQHC) that provide comprehensive primary and preventative healthcare services. This restriction disqualified two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri (Planned Parenthood). These Planned Parenthood facilities performed abortions. Planned Parenthood sued Governor Brownback and Robert Moser, MD, in his capacity as the Secretary of the Kansas Department of Health and Environment (KDHE) for declaratory and injunctive relief, challenging the legislation on the grounds that (1) it violated Title X and was unconstitutional under the Supremacy Clause; (2) it violated Planned Parenthood’s First Amendment rights by penalizing it for associating with providers of abortion and for its advocacy of access to abortion services; and (3) it violated the Fourteenth Amendment by imposing an unconstitutional burden on the rights of women to choose abortion (a claim not raised on appeal).

Ruling that Planned Parenthood had established a likelihood of success on the merits of the first two claims and had otherwise satisfied the requirements for a preliminary injunction, the district court granted the preliminary injunction and enjoined KDHE from implementing the legislation. Accordingly, it enjoined any further enforcement or reliance on Section 107(l) and ordered Moser to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l).

Moser challenged the injunction in the Tenth Circuit on several grounds, most of which the Tenth Circuit did not address. As to the Supremacy Clause claim, the court held that Planned Parenthood could not  establish a likelihood of success on the merits because there was no private cause of action for injunctive relief for the alleged violation of Title X under the Supremacy Clause. The court held that when actual or threatened state action is allegedly contrary to a federal statute, the Supremacy Clause does not necessarily authorize an injunction against the state action when four conditions are all satisfied: (1) the statute does not specifically authorize injunctive relief, (2) the statute does not create an individual right (which may be enforceable under 42 U.S.C. § 1983), (3) the statute is enacted under the Constitution’s Spending Clause, and (4) the state action is not an enforcement action in adversary legal proceedings to impose sanctions on conduct prohibited by law.  The Tenth Circuit concluded that Planned Parenthood had no cause of action under Title X to enjoin the application of § 107(l). The court held Title X simply did not contemplate enforcement through private suits for injunctive relief.

The court noted that § 107(l) does not prohibit Planned Parenthood from doing anything. It does not say that all health-care providers must offer comprehensive care. It does not even prohibit those who do not offer comprehensive care from providing family-planning services. Planned Parenthood can continue to do so. The statute says only that the State will not subsidize family-planning services provided by those who do not offer comprehensive care.

As to the First Amendment claim, the court stated that the challenge would be rejected unless retaliation against the protected conduct was a substantial or motivating factor for taking the action and the official would not have taken the same action in the absence of the protected conduct. The court held that neither of these contexts was present in this case. The first was absent because nothing in § 107(l) prohibited Planned Parenthood from advocating abortion rights or associating with abortion providers. Second, the Tenth Circuit expressed reluctance to invalidate a law because of the process by which it was enacted. Planned Parenthood could not establish a likelihood of success because the legislation did not restrict the rights of speech or association of Planned Parenthood and the motives of individual lawmakers in enacting § 107(l) were irrelevant.

The court VACATED the preliminary injunction, REVERSED and REMANDED for further proceedings.


Tenth Circuit: Contraceptive Mandate in Affordable Care Act May Substantially Burden For-Profit Companies Under RFRA

The Tenth Circuit Court of Appeals published its opinion in Hobby Lobby Stores, Inc. v. Sebelius on Thursday, June 27, 2013.

Hobby Lobby is a craft store chain, and Mardel is a Christian bookstore chain. Both are for-profit companies. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. They contended regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan.

In a 165 page opinion, containing six separate opinions, a divided en banc Tenth Circuit decided Hobby Lobby and Mardel were entitled to bring claims under the Religious Freedom Restoration Act (RFRA), had established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and had established an irreparable harm. The irreparable harm would be the fines the companies would face if they dropped their insurance coverage completely or did not provide the mandated contraceptive coverage. The court remanded the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction (balance of equities and public interest).