Also, the Seventh Circuit today denied Notre Dame's petition for rehearing en banc; no judge requested a vote on the petition.
On Fri, Jul 24, 2015 at 3:14 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > A fifth petition filed, this one in *Little Sisters*: > > [UPDATE: > > e. On July 23, 2015, the parties in one of the consolidated cases in the > Tenth Circuit--Little Sisters, et al.--filed petition No. 15-105 > <https://www.justsecurity.org/wp-content/uploads/2015/07/littlesisters.pet_.pdf> > , *Little Sisters of the Poor Home for the Aged v. Burwell *[Paul > Clement, Counsel of Record]. As noted above, all three judges on the Tenth > Circuit panel, including Judge Baldock, rejected Little Sisters' claim on > the theory that there can be no substantial burden in that case because the > Little Sisters employees will not receive cost-free contraception coverage > in any event: Little Sisters uses a church plan administered by Christian > Brothers Services, which has itself made clear that, because of its own > religious objections, it will not provide contraceptive coverage if the > Little Sisters were to opt out--and the government may not compel Christian > Brothers to offer such services. > > Little Sisters nevertheless argues in its petition (see footnote 2) that > its opt-out might still result in coverage for its employees, because its > plan has *another* TPA, Express Scripts, that has not made the same > representation as Christian Brothers; and at oral argument in the Tenth > Circuit counsel for the government represented that the Department of Labor > would ask Express Scripts to provide coverage to those employees even > though the government has no legal authority to require Express Scripts to > do so. The judges on the court of appeals not surprisingly disregarded > Little Sisters' argument respecting Express Scripts; as I blogged back in > January 2014 > <http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html>, > and as the government argued to the court of appeals, "Plaintiffs made no > reference to Express Scripts in their complaint or in their preliminary > injunction filings, and allegations about this organization cannot be a > basis for challenging the court's denial of the preliminary injunction. . . > . Moreover, plaintiffs bear the burden of establishing their entitlement > to injunctive relief, which they have wholly failed to do with respect to > any possible coverage by Express Scripts." That is to say, even assuming > that Express Scripts is a third-party administrator, the mere possibility > that it might voluntarily provide contraceptive coverage to Little Sisters' > employees, absent any regulatory compulsion to do so, presumably would be > insufficient grounds to reverse the preliminary injunction, given that > Little Sisters bears the burden of establishing its entitlement to > injunctive relief.] > > On Mon, Jul 20, 2015 at 12:23 PM, Marty Lederman <lederman.ma...@gmail.com > > wrote: > >> FYI, a post on developments of the past few months, in three parts: >> >> http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html >> >> *First*, a quick note on the government's new final rules regarding the >> religious accommodation (including its extension to some for-profit >> employers such as Hobby Lobby, Inc.). *Second*, a summary of the courts >> of appeals' treatment of the nonprofit challenges. And *third*, a >> discussion of the handful of *cert. *petitions that already have been >> filed in the nonprofit cases--with particular emphasis on the theories of >> complicity that those petitions allege in support of the argument that the >> accommodation imposes a "substantial burden" on the plaintiffs' religious >> exercise. >> >> I'd be very grateful if listmembers would let me know if I've gotten >> anything wrong, or overlooked anything of note. And if you become aware of >> any further court of appeals decisions or cert. petitions, please let me >> know ASAP, so that I can update. Thanks >> > >
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