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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF TEXAS
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`AMARILLO DIVISION
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`VICTOR LEAL,
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`Plaintiff,
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`ALEX M. AZAR II, er (1].,
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`Defendants.
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`2:20~CV-185-Z
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`CO'JEO'AGO'DWWBf/JJWJEOGWJCOO
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`MEMORANDUM OPINION AND ORDER
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`Before the Court are the respective motions to dismiss filed by the federal defendants1 and
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`the state defendants.2 ECF Nos. 7, 15. Having reviewed the motions, related pleadings, and
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`applicable law, the Court finds the federal defendants’ Motion (ECF No. 15) should be and is
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`hereby GRANTED as to Plaintiffs Leal and Von Dohlcn and DENIED IN PART as to Plaintiff
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`DISMISSED WITI-I PREJUDICE under Rule 12(b)(6) because the claims are barred by res
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`judicata. Plaintiff Armstrong’s nondelegation challenge is DISMISSED WITH PREJUDICE
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`under Rule 12(b)(6) for failing to state a claim.
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`The Court also finds the state defendants” Motion (ECF No. 7) should be and is hereby
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`GRANTED. Plaintiffs’ state-law claims against the state defendants are DISMISSED WITHOUT
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`PREIUDICE under Rule 12(b)(1) because Texas’ sovereign immunity deprives this Court of
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`jurisdiction.
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`1 The federal defendants are the United States, Alex M. Azar II in his official capacity as Secretary of Health and
`Human Services, Steven T. Mnuchin in his official capacity as Secretary of the Treasury, and Eugene Scalia in his
`official capacity as Secretary of Labor.
`2The state defendants are the Texas Department of Insurance and Kent Sullivan in his official capacity of Texas
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`Armstrong. Plaintiffs Leal and Von Dohlen’s claims against
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`the federal defendants are
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`FEDERAL DEFENDANTS’ MOTION TO DISMISS
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`The Affordable Care Act requires group health plans and health—insurance issuers to cover
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`“preventive care and screenings .
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`.
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`. as provided for in comprehensive guidelines supported by the
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`Health Resources
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`and Services Administration for purposes of
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`this paragraph.” See
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`42 U.S.C. § 300gg—13(a)(4). Preventive care and screenings must be provided without any cost-
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`sharing requirements such as deductibles or co—pays. In 2011, the Health Resources and Services
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`Administration issued guidelines requiring that all FDA-approved contraceptive methods be
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`covered as “preventive care” under 42 U.S.C. § 300gg—l3(a)(4). Consequently, the Secretary of
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`Health and Human Services, the Secretaly of the Treasury, and the Secretary of Labor issued
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`notice-and—comment regulations to implement HRSA’s decision to require private insurers to
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`cover contraception. See 45 C.F.R. § 147.130(a)(i)(iv); 29 C.F.R. § 2590.715—2713(a)(1)(iv); 26
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`C.F.R. § 54.9815~.2713(a)(l)(iv). These rules are commonly known as the federal “Contraceptive
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`Mandate.”
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`In 2018, the Departments issued a final rule giving individual religious objectors the option
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`of purchasing health insurance that excludes contraception front any willing health insurance
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`issuer. 45 CPR. § 147.133(b). But enforcement of the 2018 final rule was enjoined by a
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`nationwide injunction on the day it was to take effect. See Pennsylvania v. Trump, 351 F. Supp.
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`3d 791 (ED. Pa. 2019), rev ’d sub nom, Little Sisters offlie Poor Saints Peter and Paul Home v.
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`Pennsylvania, 140 S. Ct. 2367 (2020).
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`As a result of that injunction, litigation was filed in this District contending that the 2018
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`final rule’s exemption for religious objectors was required by the Religious Freedom Restoration
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`Act (“RFRA”). DeOite v. Azar, 393 F. Supp. 3d 490 (ND. Tex. 2019). The court in DeOtre
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`certified a class of individuals who “(1) object
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`to coverage or payments for some or all
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`contraceptive services based on sincerely held religious beliefs; and (2) would be willing to
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`purchase or obtain health insurance that excludes coverage or payments for some or all
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`contraceptive services,” and “permanently enjoined federal officials from enforcing the
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`Contraceptive Mandate against any religious objector protected by the [2018] final rule.” Id. at
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`513—14.
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`Plaintiffs Victor Leal and Patrick Von Dohlen are devout Roman Catholics who oppose all
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`forms of birth control. They want
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`to purchase health insurance that excludes coverage of
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`contraception to avoid subsidizing other people’s contraception and becoming complicit in its use.3
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`These Plaintiffs contend the federal Contraceptive Mandate continues to inflict injury in
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`fact on them and other religious objectors even though the DeOlte injunction permits issuers of
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`health insurance to issue group or individual health—insurance coverage that excludes contraception
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`to religious objectors. Plaintiffs aver that this remedy is not enough:
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`[F]ew if any insurance companies are offering health insurance [which excludes
`contraception] because only a small number of individuals hold sincere religious
`objections to all forms of contraception. And even if a health insurer were willing
`to create and offer a policy that excludes contraceptive coverage solely for religious
`objectors, the Contraceptive Mandate drastically restricts the available options on
`the market to consumers who hold religious objections to contraceptive coverage.
`The Mandate requires any policy that covers anyone who lacks a sincere religious
`objection to contraception to cover all forms of FDA-approved contraceptive
`methods, without any deductibles or eo-pays. Without the federal Contraceptive
`Mandate, insurers will have the freedom to offer policies that exclude contraceptive
`coverage to the general public, just as they did before the Contraceptive Mandate,
`which will expand the health—insurance options available to consumers who oppose
`contraceptive coverage for sincere religious reasons.
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`ECF No. l at 9.
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`3 For years, the Federal Program Branch tasked with defending earlier versions of the Contraceptive Mandate argued
`that religious plaintiffs were “fighting an invisible dragon” when religious plaintiffs argued they were morally
`complicit
`in the use of contraception. This is merely a factual impossibility argument masquerading as a legal
`impossibility argument under the “substantial burden" prong of RFRA. See, eg. Defendants‘ Reply in Support of
`Their Motion to Dismiss at 1, Little Sisters ofthe Poor Homefor the Aged v. Sebellus, 6 F. Supp. 3d 1225 (D. Colo.
`2013); Brief of Former Justice Department Officials as Amiei Curiae Supporting Petitioners, Zrtbr’k v. 31:11:16”, 136 S.
`Ct. 1557 (2016) (No. 14-1418), 2016 WL 155631. The federal defendants do not invoke the Dragon Argument in this
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`Plaintiff Kim Armstrong also alleges she is injured by the Contraceptive Mandate.
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`Although she is not a religious objector to the mandate, she alleges she is forced to pay higher
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`premiums for health insurance that covers contraceptive services that she does not want. Plaintiff
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`Armstrong is fifty years old and has had a hysterectomy and therefore is incapable of becoming
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`pregnant. Armstrong would prefer to acquire less expensive health insurance which excludes
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`contraceptive coverage but is unable because she is outside of the protections of the DeOtle
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`injunction and the Trump Administration’s rules that exempt religious and moral objectors from
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`the Contraceptive Mandate.
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`Plaintiffs filed suit in this Court on August 1, 2020 challenging the federal Contraceptive
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`Mandate on various grounds. Specifically, Plaintiffs filed a complaint alleging violations of (1)
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`the Appointments Clause; (2) the nondelegation doctrine; and (3) RFRA.4 The federal defendants
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`moved to dismiss the ease arguing Plaintiffs lack standing and are time—barred under Rule 12(b)(1).
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`are barred by resjudicata and, even if they are not, all Plaintiffs fail to state claims for Violations
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`of the Appointments Clause, the nondelegation doctrine, and RFRA.
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`A. Legal Standards
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`Federal courts are courts of limited jurisdiction which possess only that power authorized
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`by Constitution and statute. Xitronix Corp. v. KLA—Tencor Corp, 916 F.3d 429, 435 (5th Cir.
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`2019). “The requirement that jurisdiction be established as a threshold matter spring[s] from the
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`nature and limits of thejudicial power of the United States and is inflexible and without exception.”
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`Id. (quoting Steel Co. v. Citizensfor a Better Env '1', 523 U.S. 83, 94—95 (1998)).
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`4 Plaintiff Armstrong is not asserting a claim against the federal defendants under RFRA, because she has no religious
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`Additionally, federal defendants allege under Rule l2(b)(6) that Plaintiffs Leal and Von Dohlen
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`1. Rule 12(b)(1)
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`When a motion to dismiss for lack of subj ect—matter jurisdiction “is filed in conjunction
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`with other Rule 12 motions, the court should consider the Rule l2(b)(1) jurisdictional attack before
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`addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
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`Furthermore, where a complaint could be dismissed under Rule 12(b)(1) or 12(b)(6), “the court
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`should dismiss only on the jurisdictional ground .
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`.
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`. without reaching the question of failure to
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`state a claim .
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`.
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`. .” Hift v. City ofPasadena, 561 F.2d 606, 608 (5th Cir. 1977). By doing so, courts
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`avoid issuing advisory opinions. Steel Ca, 523 U.S. at 101. Additionally, this prevents courts
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`without jurisdiction “from prematurely dismissing a case with prejudice.” Ranmiing, 281 F.3d at
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`161.
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`A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e. g, Hunter v.
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`Branch Banking (‘3: Tr. C0., 2013 WL 607151, at *2 (ND. Tex. Feb. 19, 2013) (citing Paterson v.
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`ll’einberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party makes a Rule 12(b)(1) motion
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`without including evidence, the challenge to subject matter jurisdiction is facial. Id. The court
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`assesses a facial challenge as it does a Rule 12(b)(6) motion in that it “looks only at the sufficiency
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`of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to
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`allege jurisdiction, the court must deny the motion.” Id.
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`2.
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`l2(b)(6) dismissal
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`“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to
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`state a claim to relief that is plausible on its face.”’ In re Katrina Canal Breaches Litigation, 495
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`F.3d 191, 205 (5111 Cir. 2007) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
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`allegations, a plaintiff“ s obligation to provide the grounds of his entitlement to relief requires more
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`than labels and conclusions, and a formulaic recitation of the elements of the cause of action will
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`not do.” Twombly, 550 U.S. at 555 (internal marks omitted). “Factual allegations must be enough
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`to raise a right to relief above the speculative level, on the assumption that all the allegations in
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`the complaint are true (even if doubtful in fact)” In re Katrina, 495 F.3d at 205 (quoting Twombly,
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`550 US. at 555) (internal marks omitted). “The court accepts all well—pleaded facts as true,
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`viewing them in the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction
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`Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)) (internal marks
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`omitted).
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`The Court must “begin by identifying the pleadings that, because they are no more than
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`conclusions, are not entitled to the assumption of truth."Aincrofi v. Iqbal, 556 US. 662, 679
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`(2009). After assuming the veracity of any well—pleaded allegations,
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`the Court should then
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`“determine whether they plausibly give rise to an entitlement of relief.” Id. “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citation omitted). This
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`standard of “plausibility” is not necessarily a “probability requirement,” but it requires “more than
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`a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that
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`are ‘merely consistent with’ a defendant’s liability, it stops short of the line between possibility
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`and plausibility of ‘entitlement to relief.” Id. (internal marks omitted). “Determining whether a
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`complaint states a plausible claim for relief [is]
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`.
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`.
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`. a context-specific task that requires the
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`reviewing court to draw on its judicial experience and common sense.” Id. at 679.
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`1522—24 (2019); il’inSSClCl‘itlS'elLS‘ v. EPA, 549 U.S. 523725 (2007). Standing is a jurisdictional
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`B. Analysis
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`1. Standing
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`At a minimum, Article 111 requires a plaintiff to show (1) an “injury in fact” that is (2) fairly
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`traceable to the defendant’s conduct and (3) is likely to be redressed by the requested relief. ng'cm
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`v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). An injury in fact means an injury that is
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`“concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” lcl.
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`(internal marks omitted). “At the pleading stage, allegations of injury are liberally construed.”
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`Little v. [CPA/{G LLP, 575 F.3d 533, 540 (5th Cir. 2009). Although “when the injury’s existence
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`depends on the decisions of third parties not before the court,” it is generally “too conjectural or
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`hypothetical to confer standing.” [(1. Yet the bar for proving causality at the pleading stage is low
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`and allows for an injury to be traced to a defendant even if defendant’s conduct just “contributes”
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`in a “scientifically imprecise” way to the plaintiff‘ s injury. Apple Inc. v. Pepper, 139 S. Ct. 1514,
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`inquiry and thus falls under the standards of Rule l2(b)(l) and must be decided before motions
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`under Rule 12(b)(6).
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`a. Plaintiffs Leal and Van Delilen have properly alleged standing
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`First, Leal and Von Dohlen have alleged an injury in fact. These plaintiffs allege the
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`continued enforcement of the Contraceptive Mandate makes it “impossible” for them to obtain
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`health insurance that excludes contraceptive coverage. ECF No.
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`1 at 9. This is true, they allege,
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`notwithstanding the DeOne injunction. Plaintiffs Leal and Von Dolrlen allege the “inability to
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`purchase a desired product or service constitutes injury in fact. ECF No. 16 at 2 (citing Consumer
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`Fecl‘n ofAm. v. FCC, 348 F.3d 1009, 1012 (DC. Cir. 2003)).
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`For their part, the federal defendants argue “Plaintiffs Leal and Von Dohlcn’s allegation
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`that their options to choose health insurance coverage are narrower than they would prefer is
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`insufficient to establish a cognizable injury.” ECF No. 15 at 6. Defendants, however, cite no case
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`law supporting this proposition. Although neither party nor the Court has located any Fifth Circuit
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`cases on point, the DC. Circuit has long held a restricted marketplace can constitute an injury in
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`fact:
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`Orangeburg suffered an inju1y—in-fact because it cannot purchase wholesale power
`on its desired terms. “This Court has permitted consumers of a product to challenge
`agency action that prevented the consumers from purchasing a desired product.”
`Cool. for llq’ercmy—Free Drugs v. Sebelins, 671 F.3d 1275, 1281 (DC. Cir. 2012);
`see, e.g., Chamber ofConmz. v. SEC, 412 F.3d 133, 136—38 (DC Cir. 2005) (lost
`opportunity to purchase shares in mutual funds with fewer than 75% independent
`directors).
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`The lost opportunity to purchase a desired product is a cognizable injury, even
`though Orangeburg can purchase, and has purchased, wholesale power from
`another source. “[T]he inability of consumers to buy a desired product may
`constitute injury-in-fact even ifrlrey could (uncliorate the injury bypurchasing some
`alternative product.” Consumer Fed ’n ofAm, 348 F.3d at 1012 (emphasis added).
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`Orrmgebnrg, S. C. v. Fed. Energy Regulatory Comm ’n, 862 F.3d 1071, 1078 (DC.
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`Cir. 2017) (collecting cases) (some citations omitted).
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`In response, the federal defendants argue “there is no legally protected right to an unfettered
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`choice in health insurance coverage.” ECF No. 15 at 6. But the Supreme Court has made it clear
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`“[t]he ‘legal interest’ test goes to the merits. The question of standing is different.” Ass 'n of Data
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`Processing Serv. Org, Inc. v. Camp, 397 US. 150, 153 (1970). Plaintiffs need only “allege[] that
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`the challenged action has caused him injury in fact, economic or otherwise” Id. at 152. Plaintiffs
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`have done so here.
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`Second, Leal and Von Dohlen have alleged the injury in fact is fairly traceable to the federal
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`defendants. Article III standing requires a plaintiff to show “a causal connection between the injury
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`ink. Plaintiffs argue “few if any insurance companies are currently offering health insurance that
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`excludes coverage for contraception” even though “the DeOfle injunction permits issuers of health
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`insurance to issue group or individual health insurance that excludes contraception to religious
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`objectors.” ECF No.
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`1 at 7, 9. Plaintit‘fs’ theory is that the “the continued enforcement of the
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`Contraceptive Mandate makes it untenable for insurers to offer contraceptive—free health-insm‘ance
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`policies to the general public.” ECF No. 16 at 5. In other words, even though insurance companies
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`can issue contraceptive-free policies, they do not because the Contraceptive Mandate which still
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`applies to all other policies makes it financially untenable to do so.
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`The federal defendants seize on this allegation to show that the injury in fact is traceable
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`to the “business choices of insurers” and not the Contraceptive Mandate. ECF No. 20 at 1. The
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`federal defendants argue Plaintiffs’ real quarrel is with the free market for not providing the
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`policies they would prefer. The federal defendants aver that when Plaintiffs’ asserted injuries
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`“depend[] on the unfettered choices made by independent actors not before the courts,” rendering
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`standing “substantially more difficult to establish.” Lig‘an, 504 U.S. at 562 (citations omitted).
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`Additionally, the federal defendants note courts are “reluctan[t] to endorse standing theories that
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`rest on speculation about the decisions of independent actors.” Clapper v. Amnesty 1m ’1, USA, 568
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`U .S. 398, 414 (2013). The federal defendants correctly state a plaintiff in these circumstances must
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`show that the government’s action will have a “determinative or coercive effect upon the action
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`of” those third parties. Bennett v. Spear, 520 U.S. 154, 169 (1997).
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`But Plaintiffs have precisely alleged that insurance companies are not independent and do
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`not make unfettered choices regarding the insurance policies they issue. On the contrary, insurers
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`are heavily regulated. Plaintiffs allege the Contraceptive Mandate creates a coercive effect by
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`making “it untenable for insurers to offer contraceptive-free health-insurance policies to the
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`general public.” ECF No. 16 at 5. Defendants contest this allegation, but that is a fact and merits
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`determination which is inappropriate to address at the motion to dismiss stage. In re Kan-inn, 495
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`F.3d at 205 (“The court accepts all well-pleaded facts as true, viewing them in the light most
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`favorable to the plaintiff.”).
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`Lastly, Leal and Von Dohlen have alleged redressability. This analysis follows in close
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`lockstep to the traceability analysis. These Plaintiffs allege an “injunction against the continued
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`enforcement of the will expand the availability of contraceptive—free health insurance.” ECF No.
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`16 at 6. The federal defendants counter that Plaintiffs must show “it is likely, as opposed to merely
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`speculative, that the injury will be redressed by a favorable decision.” Inclusive Cmtys. Project,
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`Inc. v. Dept. ofTr-easmy, 946 F.3d 649, 655 (5th Cir. 2019) (quoting Friends of the Earth, Inc. v.
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`Laidlaw Enw‘l. Servs. (TOC), Inc, 528 U.S. 167, 181 (2000)). The federal defendants would be
`EGG
`correct if this case were at the summary judgment stage where the Plaintiffs must set forth by
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`affidavit or other evidence specific facts’ supporting standing.” Id. (quoting Lnjan, 504 U.S. at
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`561). At this stage, the Court must “accept[] all well—pleaded facts as true, viewing them in the
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`light most favorable to the plaintif‘.” In re Katrina, 495 F.3d at 205. Plaintiffs have alleged
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`insurance companies will expand their insurance policies to include contraceptive-free policies
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`and, at this stage, that is enough for Plaintiffs to satisfy their burden.5
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`In sum, Leal and Von Dohlen have satisfied their burden to allege standing at the motion
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`to dismiss stage by articulating an injury in fact which is fairly traceable to the federal defendants
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`and can be redressed by a decision of this Court.
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`5 In addition, Plaintiffs argue “[t]hc entire reason for the Contraceptive Mandate’s existence was that some private
`insurers were not providing contraceptive coverage on their own initiative or in response to market forces; that is why
`the Obama Administration issued regulations to force every insurer to provide this coverage regardless of whether the
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`b. PlaintifiArmstrong has also properly alleged standing
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`Plaintiff Armstrong has also adequately alleged standing. Although not a religious objector,
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`Armstrong has likewise alleged injury in fact by asserting that she is unable to purchase or obtain
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`less expensive health insurance that excludes contraceptive coverage. ECF No. 16 at 3. An
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`economic burden is a classic injury in fact. Indeed, the federal defendants’ main objection to
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`Armstrong’s standing is that the federal defendants contest Armstrong’s allegations that she is
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`forced to pay higher premiums for contraceptive coverage that she does not want. ECF No. 15 at
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`9 (citing to Federal Regulations to show that the Contraceptive Mandate is cost—neutral
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`to
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`insurance providers). But this is a merefircrual disagreement with Armstrong about the impact of
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`the Contraceptive Mandate on premiums. Such a disagreement is inappropriate grounds for
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`dismissal at the motion to dismiss stage.
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`The traceability and redressability analyses are far easier here because the Contraceptive
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`Mandate is being applied directly to Armstrong because she is unprotected by the DeOtte
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`injunction or the Trump Administration’s final rules detailing exceptions for religious objectors.
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`The Court hereby incorporates the same analyses as above, supra p. 8m10, and concludes
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`Armstrong has adequately alleged standing at this stage in this case.
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`2. Statute ofLimitations
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`The federal defendants urge the Court
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`to dismiss Plaintiffs’ claims as time barred.
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`Normally, a statute of limitations defense is waivable and thus is decided under the Rule 12(b)(6)
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`standard. But “the United States enjoys sovereign immunity unless it consents to suit, ‘and the
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`terms of its consent cireumscribe our jurisdiction.” Texas v. Rellig, 968 F.3d 402, 413 (5th Cir.
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`2020) (quoting Dirnn—rl/[cCanipbell Royalty Interest, Inc. v. Nat’l Park Serra, 112 F.3d 1283, 1287
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`(5th Cir. 1997)). “‘The applicable statute of limitations is one such term of consent,’ so, unlike the
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`The federal defendants, however, fundamentally misunderstand the type of suit Plaintiffs
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`ordinary world of statutes of limitations, here the failure to sue the United States within the
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`limitations period deprives us of jurisdiction.” [(1. Accordingly, the Court reviews the issue under
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`the Rule 12(b)(1) standard.
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`The federal defendants argue Plaintiffs failed to sue within the relevant limitations period
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`for each claim. The federal defendants argue Plaintiffs’ claims under the Appointments Clause and
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`nondelegation doctrine are barred by under the sixayear statute of limitations governing civil
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`actions against the United States. 28 U.S.C. § 240 1 (a). And Plaintiff Leal and Von Dohlcn’s RFRA
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`claims are barred by a four—year statute of limitations. 28 U.S.C. § 1658(a). Most importantly,
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`under the federal dcfcndants’ theory, all the claims accrued eight years ago when the Contraceptive
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`Mandate took effect. Because Plaintiffs did not sue within the relevant time periods, the federal
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`defendants state their claims must be barred by the statute of limitations thus depriving this Court
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`of jurisdiction.
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`bring in this case. For example, in their Reply, the federal defendants state “[t]he courts readily
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`apply the same six—year statute of limitations at issue here to facial claims that an agency violated
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`its procedural obligations under the Administrative Procedure Act in issuing a rule.” ECF No. 20
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`at 2.
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`But Plaintiffs are not bringing an APA claim, nor are they challenging a final agency action.
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`instead, they are bringing a suit for injunctive relief under the Larson framework.67 Larson v.
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`" Plaintiffs state this suit is being brought pursuant Ex porre Young. But this is incorrect. As discussed in Leo! v. Azor,
`No. 2:20-CV-124, 2020 WL 6281641 (ND. Tex. Sept. 24, 2020), Ex poi-re l’onng applies to state officials who attempt
`to invoke sovereign immunity while the Larson doctrine applies to federal officials. While these two doctrines are
`similar, they are not identical. E. V. v. Robinson, 906 F.3d 1082, 1090 11.8 (9th Cir. 2018) (“The [Larson] framework
`is not identical to the [Young] fiction that is commonly invoked in the Eleventh Amendment context”).
`7 The court acknowledges it is an open question whether the 1976 amendments to the APA abrogated the Larson
`doctrine in suits against federal agency officials. See, e.g., Robinson, 906 F.3d at 1092793; Dnnos v. Jones, 652 F.3d
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`

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`Case 2:20-cv-00185-Z Document 21 Filed 12/23/20 Page 13 of 42 PageID 423
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`Domestic cf; Foreign Com. Corp, 337 U.S. 682, 689 (1949). Under the Larson doctrine, there are
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`two types of suits that can proceed against federal officers in their official capacities: (1) suits
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`alleging a federal official acted ultra vires of statutorily delegated authority; and (2) suits alleging
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`“the statute or order conferring power upon the officer to take action in the sovereign’s name is
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`claimed to be unconstitutional” 1d. at 689430. As the Supreme Court stated, “in case of an injury
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`threatened by his illegal action, the officer cannot claim [sovereign] immunity from injunction
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`process.” Id. at 690 (quoting Philadelphia Co. v. Stimson, 223 U.S. 605, 620 (1912)). This suit
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`implicates the second type of case as Plaintiffs are challenging the constitutionality of the statute
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`which conferred power upon the agencies to create the Contraceptive Mandate.
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`So, like Ex parte Young and state sovereign immunity, the Larson doctrine pierces the
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`United States” traditional sovereign immunity. There are, however, limits to the doctrine. Just like
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`Young, cases brought under the Larson doctrine are limited to injunctive reliefe—Plaintiffs cannot
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`
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`pursue damages for past conduct. Id. at 691 n.
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`l 1 (“[A] suit may fail, as one against the sovereign
`Case 2:20-cv-00185-Z Document 21 Filed 12/23/20 Page 13 of 42 PageID 423
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`. if the relief requested cannot be granted by merely ordering the cessation of the conduct
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`complained”); Qnei'n v. Jordan, 440 U.S. 332, 337 (1979) (“The distinction between that relief
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`permissible under the doctrine of Ex parie Young and that found barred in Edeiinan was the
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`difference between prospective relief on one hand and retrospective relief on the other.”).
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`This is why neither party cites a case where a statute of limitations barred a suit brought
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`under Ex poi-re Young 01' Larson. By their very nature, these types of suits are seeking prospective
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`relief for ongoing injuries. Statutes of limitations are simply inapplicable to such injuries.
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`Assuming 42 U.S.C. § 300gg-13(a)(4) violates the Appointments Clause and the nondelegation
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`doctrine, Plaintiffs have demonstrated a continuing violation. The same is true for Plaintiffs Leal
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`Defendants do not challenge Plaintiffs’ invocation of this “equitable cause of action," so the Court assumes the Larson
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`Case 2:20-cv-00185-Z Document 21 Filed 12/23/20 Page 14 of 42 PageID 424
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`and Von Dohlcn’s RFRA claims. Flynt v. Shimazu, 940 F.3d 457, 462 (9th Cir. 2019) (“When the
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`continued enforcement of a statute inflicts a continuing or repeated harm, a new claim arises (and
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`a new limitations period commences) with each new injury”).
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`The federal defendants respond that
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`there is no confirming violation, but rather the
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`Plaintiffs’ inability to acquire health insurance is the continued effects of a past violation. ECF No.
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`20 at 2 (citing McGregor v. Louisiana State Univ. 80’. ofSup ‘rs, 3 F.3d 850, 867 (5th Cir. 1993).
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`The agencies’ promulgation of the Contraceptive Mandate eight years ago is not what impedes or
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`prohibits Plaintiffs from acquiring health insurance today. Rather, it is the agencies’ continued
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`enforcement of the Contraceptive Mandate which harms Plaintiffs. Accordingly, McGregor is
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`inapplicable.8 In sum, the Court finds that none of Plaintiffs’ claims are time barred.
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`3. Res Judicala
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`All of Plaintiff Leal and Von Dohlen’s claims are barred by res judicom. As Plaintiffs’
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`Complaint states, another court in this District “permanently enjoined federal officials from
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`enforcing the Contraceptive Mandate against any religious objector.” ECF N0.
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`1 at 6—7 (citing
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`DeOtte v. Azar, 393 F. Supp. 3d 490 (N .D. Tex. 2019)). The final judgment in that case bars all of
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`Plaintiffs 1Leal and Von Doblen’s claims in this case because the claims in both cases are “based
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`on the same nucleus of operative facts, and could have been brought in the first lawsuit.” Houston
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`Pro. Towing Ass ’n v. City ofHouston, 812 F.3d 443, 447 (5th Cir. 2016). Plaintiffs try to rebuff
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`this finding by making two arguments: (1) the two suits are not based on the same transaction
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`under the traditional rcsjndi'cafa test or (2) Heller-stem reworked the resjndicato test for cases that
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`5 For the same reason, even if one views Plaintiffs’ claims against the agencies as an administrative challenge under
`the APA, they are not barred by the statute of limitations. “Indeed, we have held that when an agency applies a rule,
`the limitations period running from the rule’s publication will not bar a claimant from challenging the agency’s
`statutory authority.“ Dmm-Mchmpbeh', 1 12 F.3d at 1287. Here, under Plaintiffs’ theory of the case, the agencies
`continued alleged unconstitutional application of the Contraceptive Mandate which causes harm to Plaintiffs creates
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`involved “important human values.” I'Vhot‘e Woman ’s Health v. Hellerstedt, 136 S. Ct. 2292, 2306
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`(2016). Neither of Plaintiffs’ arguments are availing.
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`a. Plaintrfifs Lea] and Von Dohlen‘s claims are barred by the traditional test for
`res judicata
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`The Fifth Circuit’s test for resjudicata “has four elements: (1) the parties are identical or
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`in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction;
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`(3) the prior action was concluded by a final judgment on the merits; and (4) the same claim 01'
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`cause ofaction was involved in both actions.” Houston, 812 F.3d at 447 (quoting