Affordable Care Act Litigation



An ACA litigation calendar for December 2019 through April 2020 [3/16 pm]Note: bold covers things that have now happened; strikethrough indicates things that didn’t.12/3/19Plaintiffs’ response due to motion for stay pending appeal in the Northern Illinois public charge appeal, No. 19-3169 (7th Cir.)12/4/19Responding brief in the short term limited duration appeal, No. 19-5212 (D.C. Cir.) (extension granted)12/4/19Motion-to-stay-pending-appeal hearing in the Northern California public charge case, Nos. 4:19-cv-4717/4975/4980 (N.D. Cal.) [9 am] (vacated)12/4/19Opening briefs due in the Eastern Washington public charge appeal, No. 19-35914 (9th Cir.), and the Northern California public charge appeal, No. 19-17213 (9th Cir.)12/6/19Opening brief due in the Eastern Washington public charge appeal, No. 19-35914 (9th Cir.)12/9/19Federal notice due re connections between the Indiana 1115 case, No. 1:19-cv-2848 (D. D.C.) and the 1115 cases currently pending at the D.C. Circuit12/10/19Supreme Court oral argument in the risk corridor cases, Nos. 18-1023/28/38.12/16/19US opening brief due in the Casa de Maryland public charge appeal, No. 19-2222 (4th Cir.)12/19/19Opening briefs due in the DeOtte contraception appeal, No. 19-10754 (5th Cir.)12/23/19US reply due supporting stay in the proclamation appeal, No. 19-36020 (9th Cir.)12/26/19Reply brief in the short term limited duration appeal, No. 19-5212 (D.C. Cir.) (extension granted)12/26/19Answering brief due in the Eastern Washington public charge appeal, No. 19-35914 (9th Cir.), and the Northern California public charge appeal, No. 19-17213 (9th Cir.) (postponed to 1/16)1/2/20Opening brief due in the US’s proclamation appeal, No. 19-36020 (9th Cir.)1/6/20Federal and Indiana briefs due on issues at stake in the Indiana 1115 case, No. 1:19-cv-2848 (D. D.C.) 1/6/20US response due to petition for rehearing en banc of the stay order in the Fourth Circuit public charge appeal, No. 19-2222 (4th Cir.)1/7/20Oral argument on the motion for stay in the Second Circuit public charge appeal, No. 19-3591 (2d Cir.)1/9/20Oral argument in the Federal Circuit CSR cases, Nos. 19-1290 and 19-1302 (Fed. Cir.)1/9/20Oral argument on the stay request in the proclamation appeal, No. 19-36020 (9th Cir.)1/10/20Conference on the religious/moral objections cert petitions, Nos. 19-431 and 19-454.1/10/20Responses due to the motions to expedite the cert petitions in Texas v. U.S., The Global Challenge, Nos. 19-840/8411/10/20US responses due to petitions for reconsideration en banc of stay orders in the public charge appeals, Nos. 19-17213, 19-17214, and 19-35914 (9th Cir.)1/13/20Answering brief due in the Maryland public charge appeal, No. 19-22221/16/20Answering brief due in the Eastern Washington public charge appeal, No. 19-35914 (9th Cir.), and the Northern California public charge appeal, No. 19-17213 (9th Cir.)1/17/20Appellees’ briefs due in the Seventh Circuit public charge case, No. 19-3169 (7th Cir.)1/17/20Answering brief due in the Eastern Washington public charge appeal, No. 19-35914 (9th Cir.)1/21/20Responding brief due in the short term limited duration appeal, No. 19-5212 (D.C. Cir.)1/24/20Plaintiffs’ answering briefs due in the New York public charge cases, Nos. 19-3591/3595 (2d Cir.)1/27/20Plaintiffs’ response due on issues at stake in the Indiana 1115 case, No. 1:19-cv-2848 (D. D.C.)1/27/20Nevada’s response due to the DeOtte plaintiffs’ request to stay the appeal, No. 19-10754 (5th Cir.)1/29/20States’ brief in the Medicaid managed care plans nondelegation appeal, No. 18-10545 (5th Cir.)1/30/20Answering brief due in the proclamation appeal, No. 19-36020 (9th Cir.)2/3/20Cert responses currently due in the Global Challenge, Nos. 19-840 and 19-8412/4/20US reply brief due in the Seventh Circuit public charge case, No. 19-3169 (7th Cir.)2/5/20Plaintiffs’ opposition due to US’s renewed motion for stay in the Seventh Circuit public charge case, No. 19-3169 (7th Cir.)2/6/20US reply brief due in the Northern California public charge appeal, No. 19-17213 (9th Cir.)2/7/20US reply brief due in the Eastern Washington public charge appeal, No. 19-35914 (9th Cir.)2/10/20US supplemental briefs due in the CSR appeals, Nos. 19-1290 et al (Fed. Cir.)2/10/20Defendants’ replies due on issues at stake in the Indiana 1115 case, No. 1:19-cv-2848 (D. D.C.)2/11/20Reply brief due in the short term limited duration appeal, No. 19-5212 (D.C. Cir.) (extension granted)2/12/20Petitioners plan to file reply memos supporting cert in the Global Challenge, Nos. 19-840 and 19-8412/14/20US reply briefs due in the New York public charge cases, Nos. 19-3591/3595 (2d Cir.)2/19/20Plaintiffs’ response to motion to dismiss due in the Illinois public charge case, No. 1:19-cv-6334 (N.D. Ill.)2/19/20Deadline (per No. 19A757) for cert petitions to be filed from the Ninth Circuit religious and moral objections case, No. 19-15072.2/20/20Reply brief due in the proclamation appeal, No. 19-36020 (9th Cir.)2/21/20Conference to consider the Global Challenge petitions, Nos. 19-840 and 19-841 (and maybe the cross-petition, No. 19-1019)2/25/20Appellants’ reply brief due in the short term limited duration appeal, No. 19-5212 (D.C. Cir.)2/25/20Federal filing due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.) (extended to 3/3)2/26/20Oral argument in the Northern Illinois public charge appeal, No. 19-3169 (7th Cir.)2/28/20Conference to consider the Global Challenge petitions, Nos. 19-840 and 19-841, and the conditional cross-petition, No. 19-10192/28/20US response/reply brief in the Medicaid managed care plans nondelegation appeal, No. 18-10545 (5th Cir.)3/2/20Plaintiffs’ partial summary judgment motion due in the Yale wellness case, No. 3:19-cv-1098 (D. Conn.)3/2/20Motions or status reports due in the Edmo gender confirmation case, No. 1:17-cv-151 (D. Idaho)3/3/20Federal and Michigan what-next? proposals due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.)3/4/20US opposition to plaintiffs’ motion for preliminary injunction/summary judgment, and cross-motion, due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.) (recalendared)3/10/20Insurers’ supplemental briefs due in the CSR appeals, Nos. 19-1290 et al (Fed. Cir.)3/12/20US reply supporting motion to dismiss due in the Illinois public charge case, No. 1:19-cv-6334 (N.D. Ill.) (postponed)3/13/20Plaintiffs’ amended opposition to US motion to dismiss due in the Illinois public charge case, No. 1:19-cv-6334 (N.D. Ill.)3/16/20Parties’ post-Gresham motions due in the Philbrick (New Hampshire) 1115 waiver case, No. 19-5293 (D.C. Cir.) (filed 3/12)3/17/20Plaintiffs’ response to defendants’ filing due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.) (recalendared)3/17/20Common Ground amicus due in the CSR appeals, Nos. 19-1290 et al (Fed. Cir.)3/17/20Oral argument on the US motion to dismiss the New York public charge case, No. 1:19-cv-7777 (S.D. N.Y.) [10:30 am] (rescheduled to 5/5)3/20/20Oral argument in the short term limited duration case, No. 19-5212 (D.C. Cir.)3/20/20States’ reply brief in the Medicaid managed care plans nondelegation appeal, No. 18-10545 (5th Cir.)3/24/20Plaintiffs’ summary judgment response due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.)3/25/20US supplemental reply briefs due in the CSR appeals, Nos. 19-1290 et al (Fed. Cir.) (extension to 4/10)3/26/20US reply supporting motion to dismiss due in the Illinois public charge case, No. 1:19-cv-6334 (N.D. Ill.)3/31/20US reply due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.) (extended to 4/7)4/1/20Defendant’s motion for partial summary judgment/opposition due in the Yale wellness case, No. 3:19-cv-1098 (D. Conn.)4/7/20US reply supporting summary judgment motion due in the Michigan 1115 waiver case, No. 1:19-cv-3526 (D. D.C.)4/10/20US supplemental reply briefs due in the CSR appeals, Nos. 19-1290 et al (Fed. Cir.)5/1/20Plaintiffs’ partial summary judgment reply/opposition due in the Yale wellness case, No. 3:19-cv-1098 (D. Conn.)5/5/20Oral argument on the US motion to dismiss the New York public charge case, No. 1:19-cv-7777 (S.D. N.Y.)5/22/20Defendant’s partial summary judgment reply due in the Yale wellness case, No. 3:19-cv-1098 (D. Conn.)Notes on specific cases by subject area:The Global ChallengeIn the Texas v. U.S. Global Challenge, 4:18-cv-167 (N.D. Tex.), 19-10011 (5th Cir.), and Nos. 19-840, 19-841, and 19-1019 (U.S. Supreme Court), the Court granted certiorari on March 2, 2020, on the California petition (19-840) and the Texas and individual plaintiffs’ conditional cross-petition (19-1019), apparently holding the House of Representatives’ petition (19-841). The district court had granted partial summary judgment that the entire ACA was invalid (12/14/18), and then entered judgment under FRCP 54(b) to allow this to be appealed while staying its own order (12/30/18, see also 12/31). The Fifth Circuit granted motions to intervene by four pro-ACA states and by the U.S. House, and oral argument took place July 9, 2019. The Fifth Circuit issued its decision, determining that what remains of the individual mandate is unconstitutional but that Judge O’Connor’s severability analysis was not adequate, and remanding to him for further severability analysis, on December 18, 2019. The intervenor-defendants and the House filed cert petitions January 3, 2020, Nos. 19-840/841, along with motions to expedite consideration of the petitions. The Court denied those motions, but also denied the State plaintiffs’ motions to extend the time for responding. Responses were filed February 3, 2020. Petitioners filed replies February 12, and the petitions were distributed for the Supreme Court’s February 21 Conference. Meanwhile, Texas and the individual plaintiffs filed a conditional cross-petition for certiorari February 14, No. 19-1019. On February 24, the Court relisted the California and U.S. House petitions, and listed the conditional cross-petition, for its February 28 Conference. On the Monday following the February 28 Conference, the Court granted two of the three pending petitions.Partly because there is a cross-petition, the Clerk-ordered briefing schedule may be different than the 45-30-30 standard schedule, but if the briefing schedule is close to the standard schedule, the intervenor-defendants’ opening brief will be due in mid-April, 2020, the plaintiffs’ and the US’s briefs would be due in mid-May, and the intervenor-defendants’ reply would be due in mid-June.In Maryland v. U.S., 1:18-cv-2849 (D. Md.), the case seeking to affirm the ACA, Judge Hollander granted the Government’s fully briefed motion to dismiss on February 1, 2019.Whittling AwayIn New York v. U.S., 1:18-cv-1747 (D. D.C.), the case about association health plans, the district court held oral argument on January 24, 2019, and the district court partially vacated and remanded the regulations in an opinion issued March 28. The Government has appealed, No. 19-5125 (D.C. Cir.), and the appeal was heard November 14, 2019.In Association for Community Health Plans v. U.S., 1:18-cv-2133 (D. D.C.), the case about short term limited duration plans, Judge Leon heard oral argument on May 21, 2019, and granted summary judgment to the Government on July 19. The D.C. Circuit file number is 19-5212. Appellants filed their opening brief November 4, 2019; the responding brief was filed January 21, 2020, with appellants’ reply brief filed February 25. Oral argument is scheduled for March 20, 2020.In Columbus v. Trump, 1:18-cv-2364 (D. Md.), the case about the 2019 notice of benefit and payment parameters rule, the Government has filed a motion to dismiss (12/24) and plaintiffs have filed an amended complaint (1/25). Defendants’ motion to dismiss the amended complaint was filed March 8, the opposition was filed May 31, and the Government filed its reply August 21, 2019.Cost Sharing ReductionsThere are six Court of Federal Claims cases where judgment has been entered for the insurers, who are leading the Government, 6-0, in the overall Court of Federal Claims standings. However, just after the Federal Circuit oral argument, the Federal Circuit ordered supplemental briefing to address possible double-recovery and damages-mitigation issues.The Court of Federal Claims cases where judgment or partial judgment has been entered for the insurers, and the Government has appealed, are Sanford, Nos. 1:18-cv-136 (Ct.Fed.Cl.) and 19-1290 (Fed. Cir.), Montana HCO, Nos. 1:18-cv-143 (Ct.Fed.Cl.) and 19-1302 (Fed. Cir.), Community Health Choice, Nos. 1:18-cv-5 (Ct.Fed.Cl.) and 19-1633 (Fed. Cir.), Maine CHO, Nos. 1:17-cv-2057 (Ct.Fed.Cl.) and 19-2102 (Fed. Cir.), Common Ground (the opt-in class action), Nos. 1:17-cv-877 (Ct.Fed.Cl.) and 20-1286 (Fed. Cir.), and L.A. Care, Nos. 1:17-cv-1542 (Ct.Fed.Cl) and 20-1393 (Fed. Cir.). After the January 9, 2020, oral argument in some of the Federal Circuit cases, the panel ordered supplemental briefing, with the appellant U.S. to file a supplemental brief on possible double-recovery or damages-mitigation issues by February 10, 2020, the insurers to file by March 10, and the U.S. to file reply supplemental briefs by March 25, now being extended to April 10. The U.S. filed its opening supplemental brief on February 10. The Common Ground appeal, No. 20-1286, is in abeyance, but the insurer sought and received permission to file an amicus brief to add to the supplemental briefs filed by its fellow insurers; its supplemental brief was filed March 17.At the Court of Federal Claims, nine cases have been stayed. The stayed cases are Molina Healthcare v. U.S., No. 1:18-cv-333, Health Alliance Medical Plans v. U.S., No. 1:18-cv-334, Blue Cross & Blue Shield of Vermont v. U.S., No. 1:18-cv-373, Guidewell Mutual v. U.S., No. 1:18-cv-1791, Harvard Pilgrim v. U.S., No. 1:18-cv-1820, Blue Cross Blue Shield of North Dakota, No. 1:18-cv-1983, Montana HCO (2), 1:19-cv-568, Sanford (2), 1:19-cv-569, and EmblemHealth v. U.S., No. 1:19-cv-1164.Risk corridor and risk adjustment casesIn the four Federal Circuit risk corridor cases, with the Federal Circuit having denied rehearing en banc on November 6, 2018, the insurers all sought certiorari, and got it. Maine Community Health Options v. U.S. is No. 18-1023; Moda v. U.S. and Blue Cross and Blue Shield of North Carolina v. U.S. are No. 18-1028; and Land of Lincoln v. U.S. is No. 18-1038. Opening briefs were filed August 30, 2019, pro-insurer amicus briefs were filed September 6, respondents’ briefs were filed October 21, and the cases were argued December 10, 2019.The Second Circuit granted an injunction pending appeal in UnitedHealthcare of New York v. Vullo, No. 18-2583 (2d Cir.); briefing was expedited, and oral argument took place February 8, 2019. The Court of Appeals requested amicus briefing from the United States, which was provided August 2; the parties’ responses to the supplemental briefing were filed September 23, 2019.The United States filed an appeal in the risk adjustment case, New Mexico Health Connections v. U.S., No. 18-2186 (10th Cir.). Proceedings in a second case at District Court, 1:18-cv-773 (D. N.M.), were also stayed (unopposed motion, 12/26/18, order, 12/31/18), and the parties suggested in a joint status report (1/28/19) that the new case remain stayed until the Tenth Circuit resolved the appeal in the original case. Oral argument took place September 25, 2019. On December 31, 2019, the Tenth Circuit reversed Judge Browning’s ruling that had remanded the risk adjustment rules. The decision covered claims for 2018 as well as claims for earlier years, which presumably is what prompted the parties to the second risk adjustment case to agree to dismiss it.Other risk corridor cases remain stayed in the Court of Claims. Anthem Blue Cross filed a new risk corridor case, No. 1:19-cv-1770, on November 18, 2019, which is being stayed.1557 and ACA-enforcement casesIn Franciscan Alliance v. Azar, No. 7:16-cv-108 (N.D. Tex.), the challenge to the Obama Administration’s 1557 regulations, Judge O’Connor held a hearing on September 16, 2019. On October 15, 2019, he issued a judgment vacating the Obama Administration regulations on transgender and abortion rights, remanding the matter to the agency, and allowing intervention. On November 21, 2019, Judge O’Connor issued an order partially revising his judgment. Franciscan Alliance filed a notice of appeal January 21, 2020, which has the file number 20-10093 (5th Cir.). Intervenors appear not to have appealed.Litigation is likely to challenge the Administration’s proposed revised 1557 regulations, released May 24, 2019, once they become final. In Franciscan Alliance, the Government informed Judge O’Connor of the proposed regulations, the plaintiffs asked him to proceed to summary judgment, the Government filed an ambiguous reply, and Judge O’Connor issued his October 15, 2019 ruling vacating the Obama Administration regulations without mentioning the details of the Trump Administration proposals.There is “live” litigation in many other 1557, ACA-enforcement, and Eighth Amendment cases. Two significant hearing-discrimination cases, Schmitt and E.S., are fully briefed, argued, and pending at the Ninth Circuit, Nos. 18-35846 and -35892. There is also major litigation activity in two lactation-services cases. In Condry, No, 3:17-cv-183 (N.D. Cal.), a class certification motion having been argued on April 25, 2019, and denied May 23, without prejudice to refiling with redefined classes; the motion was refiled September 9 and heard on November 21, with Judge Chhabria denying a motion to intervene December 19, and expressing skepticism about further proceedings, but then partly granting and partly denying class certification in a December 23, 2019 order. Plaintiffs filed petition-to-appeal paperwork in the Ninth Circuit under Civil Rule 23(f), Ninth Circuit file #s 20-80005 and 80006, defendants filed an opposition January 16, 2020, and the Ninth Circuit denied the petition on March 2, 2020. In Briscoe, No. 1:16-cv-10294 (N.D. Ill.) plaintiffs’ motion for class certification was heard on November 7, 2019, and was denied without prejudice in January, 2020; on February 14, 2020, plaintiffs submitted a new motion for class certification.Contraception cases: challenges to the religious and moral exemption regulationsOn Friday, January 17, 2020, the Court took certiorari in the Pennsylvania v. Trump case, Nos. 19-431 (Little Sisters) and 19-454 (U.S.). At the trial level, plaintiffs had filed a motion for a preliminary injunction on December 18, 2018, and Judge Wendy Beetlestone had issued a nationwide preliminary injunction January 14, 2019. In the second round of appeals, Nos. 17-3752, 18-1253, 19-1129, and 19-1189, the Third Circuit had issued an opinion affirming the nationwide injunction July 12, 2019.After the Ninth Circuit’s opinion with respect to the interim final rules (12/13/18), California filed an amended challenge to the new final rules, California v. Wright, No. 4:17-cv-5783 (N.D. Cal.); an order enjoining the new regulations issued January 13. In the original appeal, No. 18-15255, Little Sisters filed a petition for certiorari on March 13, No. 18-1192, which has now been denied. In the second round of appeals, Nos. 19-15072, 19-15118, and 19-15150, the Ninth Circuit decided in the appellees’ favor October 22, 2019. Both Little Sisters and the Administration obtained permission to file for cert by February 19, 2020, and did so on that date, Nos. 19-1038 and 19-1053.Massachusetts had been denied standing to challenge the rules, but got that denial reversed at the First Circuit; it then filed a motion for summary judgment on July 31, 2019, with a Government response and motion to dismiss filed August 30, the Commonwealth’s opposition filed September 26, and a final Government reply brief filed October 21, 2019. After the Supreme Court took cert in Pennsylvania v. Trump, Massachusetts’ case was stayed on February 7, 2020.Meanwhile, there is a Texas case, DeOtte, No. 4:18-cv-825 (N.D. Tex.), where religiously motivated employers and individuals received nationwide class certification, and then a nationwide summary judgment order granting the requested exemptions on June 5, 2019. Nevada had sought intervention and been denied, but has appealed, with the U.S. appealing and then dismissing its appeal; both appeals are Fifth Circuit file number 19-10754 (5th Cir.). Nevada filed its opening brief on December 19, 2019. After the Court took certiorari in the Pennsylvania v. Trump case, the U.S. moved for a stay of the DeOtte appeal, which the Fifth Circuit granted.Also, a federal district court in the Northern District of Indiana has largely denied a motion to dismiss that challenges a settlement between the U.S. and the University of Notre Dame, which had sued in 2013 to attack the Obama Administration’s exemptions. Irish 4 Reproductive Health v. U.S. D.H.H.S., No. 3:18-cv-491 (N.D. Ind.) (Order on motions to dismiss, January 16, 2020).Title X casesThere is litigation in the Northern District of California, in Maine, in Maryland, in Oregon, and in the Eastern District of Washington. Orders for injunctive relief issued in all three West Coast cases, 3:19-cv-1184 (N.D. Cal.), 6:19-cv-317 (D. Or.), and 1:19-cv-3040 (E.D. Wash.). The United States filed notices of appeal and motions for stay pending appeal in the West Coast cases, and briefing began in 19-15974, 19-35386, and 19-35394. A Ninth Circuit panel granted the Government’s request for a stay on June 20, but the Circuit then granted en banc review of that order, but then the Circuit said on July 11 that the stays of the preliminary injunctions would remain in effect. The Ninth Circuit cases were argued September 23, 2019. The en banc court upheld the rule in an opinion dated February 24, 2020.The Maine Family Planning plaintiffs’ request for a preliminary injunction, 1:19-cv-100 (D. Me.), was heard on April 24 and denied on July 3; an appeal is underway, No. 19-1836 (1st Cir.).The court in Maryland issued a preliminary injunction, 1:19-cv-1103 (D. Md.), but the Fourth Circuit then stayed it, No. 19-1614 (4th Cir.), and denied a motion for rehearing en banc. Oral argument was held September 18, 2019. Meanwhile, the district court conducted summary judgment proceedings and, on February 14, 2020, granted summary judgment to the plaintiffs on some counts. The Government’s appeal is in No. 20-1215 (4th Cir.), and there has been motion practice on staying or consolidating the appeals.Statutory conscience rule casesThree cases are in the Northern District of California, Nos. 3:19-cv-2405 (N.D. Cal.), 4:19-cv-2769 (N.D. Cal.), and 5:19-cv-2916 (N.D. Cal.); three cases are in the Southern District of New York, Nos. 1:19-cv-4676, -5433, and -5435 (S.D. N.Y.); and one case is in the Eastern District of Washington, 2:19-cv-183 (E.D. Wash.). Motions for preliminary injunction were filed in all seven cases, but were on hold for several months because the Administration postponed the rules’ effective date. On November 6, 2019, the judge in the Southern New York cases issued a 147-page opinion invalidating the rule. On December 18, the Christian Medical and Dental Associations, which had intervened in the Southern New York case, appealed to the Second Circuit (No. 19-4254).On November 7, the judge in the Eastern Washington case granted summary judgment to the plaintiffs, with a written order issuing November 21. The U.S.’s appeal has the file number 20-35044 (9th Cir.).On November 19, the judge in the Northern California cases granted summary judgment to the plaintiffs: judgment was entered January 8, 2020. The US filed an appeal on March 6, 2020. Miscellaneous ACA litigationIn the Medicaid managed care plans fees nondelegation case, Texas v. U.S., No. 7:15-cv-151 (N.D. Texas), the parties told the district court that they were generally agreed on an equitable disgorgement amount so final judgment could be entered. Judge O’Connor denied a request for pre- and post-judgment interest. He entered final judgment July 30, 2019, and stayed the judgment pending briefing on staying execution against it. That briefing is complete, with the US’s reply filed September 17. In the appeal, No. 18-10545 (5th Cir.), the U.S.’s opening brief was filed November 20, 2019, and the parties agreed on a schedule for further briefing: the states filed their appellees’ and cross-appellants’ brief on January 29, 2020, with Wisconsin filing a separate letter adopting parts of the states’ arguments. The U.S. filed its reply/response February 28.Medicaid 1115 litigationOn March 27, 2019, in the Kentucky waiver case, Stewart v. Azar, 1:18-cv-152 (D. D.C.), and the Arkansas waiver case, Gresham v. Azar, 1:18-cv-1900 (D. D.C.), Judge Boasberg issued decisions vacating both approvals; and on April 4, he certified his judgments in both cases for appeal under Civil Rule 54(b). The Government and Kentucky and Arkansas all appealed, Nos. 19-5094-95-96-97 (D.C. Cir.), and the Government moved to expedite the appeals. The D.C. Circuit entered an agreed-upon semi-expedited briefing schedule. Oral argument took place October 11, 2019. After Kentucky Gov. Bevin was defeated for re-election, new Gov. Beshear filed a request to dismiss Kentucky’s appeal based on the Commonwealth’s having terminated the waiver. The Government’s response suggested that the underlying decision be vacated, and appellants opposed that suggestion. The D.C. Circuit dismissed the appeal and declined to vacate Judge Boasberg’s orders. On February 14, 2020, the D.C. Circuit affirmed the district court’s invalidation of the Arkansas waiver.A third case was filed against the New Hampshire waiver, Philbrick v. Azar, No. 1:19-cv-773 (D. D.C.); it’s also been assigned to Judge Boasberg. The parties did expedited briefing, oral argument took place on July 23, and Judge Boasberg issued a decision invalidating the work requirement on July 29; he then entered final judgment on one count of the complaint August 27, 2019. The Government and New Hampshire filed appeals October 25; they’ve been assigned the file numbers 19-5293 and 19-5295. On November 13, the Government filed an unopposed motion to have the cases held in abeyance pending rulings in the Kentucky and Arkansas appeals. On February 14, the day the D.C. Circuit decided the Arkansas case, it issued an order directing the parties to file post-Gresham motions by March 16, 2020. The US has filed an unopposed motion to have the D.C. Circuit enter a summary affirmance of Judge Boasberg’s order.A fourth case was filed in late September against the Indiana waiver, Rose v. Azar, No. 1:19-cv-2848 (D. D.C.). Indiana has announced that it does not intend to proceed with the work requirement portions of the waiver until the other work requirement cases are resolved; the judge is trying to decide whether to stay the case or proceed with the challenge to the other parts of the waiver. After a hearing on November 21, 2019, he issued orders setting a briefing schedule on the question of what might differentiate the Indiana case from the cases currently pending at the D.C. Circuit. On December 9, defendants (HHS and Indiana) announced their intentions to continue to brief these matters, and they filed briefs January 6, 2020, with plaintiffs responding on January 27, and defendants’ replies filed February 10.A fifth case, against the Michigan waiver, Young v. Azar, No. 1:19-cv-3526 (D. D.C.), was filed November 22, 2019: the most recent post-Gresham filings are proposals by Michigan and the U.S. about how to handle issues other than the work requirements, both proposals filed March 3, 2020. The district court entered an order about the work requirements March 4.Public charge litigationIn No. 19A785, the Supreme Court issued an order on January 27, 2020, staying the Second Circuit’s nationwide injunction; and, in No. 19A905, the Court issued an order on February 21, 2020, staying the Seventh Circuit’s Illinois-specific injunction. That does not put any ongoing proceedings in those appeals before the Court.In the three Northern California cases, City and County of San Francisco [plus Santa Clara County] v. U.S. C.I.S., No. 4:19-cv-4717 (N.D. Cal.), State of California [plus D.C., Maine, Pennsylvania and Oregon], v. D.H.S., No. 4:19-cv-4975 (N.D. Cal.), and La Clinica de la Raza [plus other nongovernmental organizations] v. Trump, No. 4:19-cv-4980 (N.D. Cal.), motions for preliminary injunctions were granted, covering the plaintiff local governments. The US appealed, Nos. 19-17213/17214 (9th Cir.)In the two Southern District of New York cases, State of New York [plus Connecticut and Vermont] v. U.S. D.H.S., No. 1:19-cv-7777 (S.D. N.Y.), Judge Daniels issued a nationwide preliminary injunction. The US appealed, Nos. 19-3591/3595 (2d Cir.).In the Eastern Washington case, State of Washington [plus Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, the Michigan AG, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island] v. U.S. D.H.S., No. 4:19-cv-5210 (E.D. Wash.), Judge Peterson issued a nationwide preliminary injunction. The U.S. appealed, No. 19-35914 (9th Cir.).In the Maryland case, No. 8:19-cv-2715 (D. Md.), Judge Grimm issued a nationwide injunction. The U.S. appealed, No. 19-2222 (4th Cir.).In the Northern Illinois case, No. 1:19-cv-6334 (N.D. Ill.), Judge Feinerman issued a preliminary injunction covering Illinois. The U.S. appealed, No. 19-3169 (7th Cir.).In all five sets of cases, the U.S. filed Circuit-level requests for stays pending appeal.On December 5, 2019, the Ninth Circuit granted stays pending appeal in the three Ninth Circuit cases, Nos. 19-17213/17214 and 35914. On December 19, plaintiffs in the Ninth Circuit cases filed requests for reconsideration en banc of the stay orders, and on December 20, the Ninth Circuit requested responses from the Government to be filed by January 10, 2020, which the Government provided. On February 18, 2020, the Ninth Circuit denied rehearing en banc of the stay orders. Merits briefing in all three preliminary injunction appeals is complete.On December 9, 2019, the Fourth Circuit granted a stay in the Maryland case, No. 19-2222. On December 20, plaintiffs in the Fourth Circuit case filed a request for rehearing en banc of the stay order. The Fourth Circuit directed the Government to file a response by January 6, 2020, which was done; it has denied rehearing en banc of the stay order. Merits briefing was completed on February 3, 2020. The district court has granted summary judgment to the plaintiffs, and the parties are disputing in district court the scope of its order and disputing in the Fourth Circuit whether and how the Government’s appeal, No. 20-1215, should proceed.The stay motion in the Second Circuit cases, Nos. 19-3591/3595, was argued on January 7, 2020, and denied on January 8. The Supreme Court stayed the nationwide injunction on January 27. Second Circuit merits briefing was completed February 14, 2020.On December 23, 2019, the Seventh Circuit denied a stay pending appeal in No. 19-3169; it then set a briefing schedule, under which merits briefing was completed February 4. On February 10, it denied a renewed motion for stay pending appeal. On February 13, the Government filed a motion for stay in the Supreme Court, No. 19A905; plaintiffs filed an opposition February 19, and the Government filed a reply February 20. The Supreme Court granted the stay February 21. Oral argument on the Government’s district court motion to dismiss had been scheduled for March 17, but has been rescheduled to May 5.Health care entry prohibition litigationDoe v. Trump, No. 3:19-cv-1743 (D. Or.), was filed October 30, 2019, and Judge Simon issued a TRO November 2. Plaintiffs filed motions for a preliminary injunction and for class certification November 8, and the Government filed an opposition to the preliminary injunction on November 15. Plaintiffs filed their reply November 19. After a hearing on November 22, Judge Simon issued a preliminary injunction November 26. The Government filed a notice of appeal December 4, No. 19-36020, and requested a stay. Plaintiffs opposed this on December 16. The Ninth Circuit denied a temporary stay in a December 20 order and held oral argument on the stay motion on January 9, 2020. There is also an expedited briefing schedule for the merits appeal; the US filed its opening brief January 2, 2020, and plaintiffs filed their appellees’ brief on January 30. The US filed its reply brief February 20.Wellness program litigationAARP’s suit against Yale University, No. 3:19-cv-1098 (D. Conn.), was filed July 16; an amended complaint was filed October 17, 2019, and defendants filed their answer November 15. Defendants filed a motion on November 26 asking for proceedings to be stayed while the EEOC promulgates new wellness program regulations. Judge Dooley denied the stay December 2, 2019. Plaintiffs’ summary judgment motion was filed March 2, 2020. ................
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